The High Qualification Commission of Judges on Nov. 6 appointed the six-member Public Council of International Experts or PCIE, a foreign expert panel intended to help in the selection of the High Anti-Corruption Court.
The commission chose six members out of 12 people nominated by foreign organizations in mid-September.
Those selected are Aurelijus Gutauskas, a judge of Lithuania’s Supreme Court and an expert at Moneyval and the Council of Europe’s Group of States against Corruption or GRECO; Flemming C. Denker, an ex-prosecutor from Denmark and former expert at GRECO and the Council of Europe; Mirjana Lazarova-Trajkovska, a former judge of the European Court of Human Rights and ex-member of the Venice Commission; Ted Zarzeczny, a Canadian judge; Sir Anthony Hooper; a former judge of the Court of Appeals in England and Wales, and Lorna Harris, a British former prosecutor.
According to Kyiv Post sources who were not authorized to speak to the press, little is known about the six PCIE members chosen by the commission, and they may turn out to be the weakest of the 12 nominees. Not a single U.S. citizen was appointed, despite the fact that the U.S. is the key promoter of the anti-corruption court.
The High Qualification Commission did not appoint several reputedly strong candidates who have worked with Ukrainian anti-corruption activists or have been involved in anti-corruption efforts in Ukraine. These include Giovanni Kessler, the ex-director general of the European Anti-Fraud Office; Thomas Firestone, a U.S. lawyer, Carlos Castresana Fernandez, a Spanish lawyer and former member of the International Commission against Impunity in Guatemala, and Claudia Mejia Escobar, an appellate court judge from Guatemala.
If a majority of the members of the High Qualification Commission and PCIE combined vote for a candidate, he or she continues participation in the competition, given that at least three out of the PCIE’s six members vote for the candidate.
The competition for High Anti-Corruption Court candidates was launched in August.
One problem is that it is also not clear whether the High Qualification Commission will allow the PCIE to access candidates’ personal data and profiles and government registers, Vitaly Tytych, the coordinator of the Public Integrity Council, told the Kyiv Post. If the PCIE doesn’t get access to personal data, its work will be blocked, he added.
The commission told the Kyiv Post that the PCIE would get access to High Qualification Commission materials “taking into account restrictions set by Ukrainian law.” It is not clear if these materials will include candidates’ personal data.
Another obstacle is that the PCIE might be blocked by the High Qualification Commission from assessing the results of candidates’ practical examinations. The High Qualification Commission has previously refused to publish such results, thus casting doubt on whether they were assessed objectively.
Tytych argued that the PCIE has a right under the law to assess the results of practical examinations, and that such results should also be published according to the law.
The commission told the Kyiv Post it would not publish the results of practical examinations during the competition for the anti-corruption court, claiming that this is not stipulated by law.
Moreover, if the PCIE only vetoes some of the candidates, the rest of the candidates appointed by the High Qualification Commission may still be politically dependent, corrupt or incompetent due to the commission’s arbitrary and subjective assessment methodology, Public Integrity Council members argue. The commission has denied accusations that its methodology is arbitrary.
Under the High Qualification Commission’s methodology, the commission assigns up to 210 points out of 1,000 for the legal knowledge and practical testing of candidates, and up to 790 points out of 1,000 points without giving any explicit reasons. The United States Agency for International Development proposed increasing the percentage of objective criteria (legal knowledge and practical tests) in the methodology, but the High Qualification Commission ignored the proposals.
To resolve the problem, Tytych proposed that the PCIE not only veto the worst, but select the best candidates – i.e. carry out positive selection as well.
The commission also said it would not publish the results of candidates’ psychological tests.
However, it’s not clear if psychological tests, which were supposed to account for up to 400 out of 1,000 points during last year’s Supreme Court competition, were taken into account at all. Moreover, the validity of the tests has been questioned, and they targeted corporate loyalty and high discipline, which would reward politically dependent candidates and penalize independent-minded ones, according to the Public Integrity Council.
