The government proposes a “broken bicycle” for international experts in the commission selecting HQCJ members

The High Qualifications Commission of Judges (HQCJ) is a body that can recommend a person for the position of judge or recommend their dismissal. That is, whoever decides your case, should you suddenly have to go to court, depends on the HQCJ’s assessment. Judges over judges, so to speak.

Logically, these people must meet the highest standards, because they are precisely the ones responsible for shaping the judicial branch of power. Previously, the HQCJ was made up of representatives of the old judicial elites and was the product of political compromises and backroom deals. Its work produced results to match — as did the level of public trust in the courts.

Since 2023, the composition of the HQCJ has been selected by a Selection Commission with the participation of international experts. Although there were three of them out of six, they had a casting vote. As a result, the quality of the HQCJ’s work improved manyfold. Take, for instance, the assessment of judges for suitability for office: previously the Commission recommended the dismissal of 4% of the judges it reviewed, now it is already around 20%. Of course, the goal is not to raise that figure to 100. But there are certainly 20% of people lacking integrity in the system, clearly not 4.

The powers of this composition of the HQCJ expire in June 2027, and it is time to start selecting the next one. However, the participation of the internationals in the competition has already ended, and it would be logical to continue this good practice. Progressive MPs even prepared a draft law a year ago. It says in black and white: “extend the previous provisions for another couple of years.”

Things did not turn out as planned. Our authorities decided to revise the law. But in reality, they reinvented the bicycle — with the saddle where the handlebars should be, and no brakes on top of that…

Let us look at what kind of competition for the HQCJ the Cabinet of Ministers has designed, and why you will not get far on it:

1. The stages of the competition have been divided into a check of integrity and a check of competence. At the first stage, international experts still have a casting vote, but at the second stage the Ukrainian part of the commission holds a veto. It is enough simply not to give a candidate three votes — and anyone who does not suit the system automatically drops out of the competition.
2. The draft law proposes first checking integrity and only then competence. That is, the members of the Selection Commission must somehow, all on their own, thoroughly vet 300+ contestants at the first stage. This will either drag on for years, or the vetting will be of poor quality.
3. And even before the first stage of selection, the HCJ can now sift out inconvenient candidates at the point of verifying documents. For example, to take part in the competition, a candidate needs 15 years of professional experience. If something is formally not counted, the applicant ends up with 14 years and 8 months — and automatically drops out of the competition. There is not even a basic right to correct a document.
4. Last time the internationals were engaged for 4 years. The new engagement of internationals is proposed for only 2 years from the moment the Selection Commission is created. Why is this a bad idea? Dragging out competitions is a long-established practice for the Ukrainian authorities.
5. Previously, assistants helped the international members of the commission gather information. The new draft law proposes leaving the experts with translators only. This will substantially complicate candidate vetting and may also lower the quality of the commission’s decisions. The international experts will have to carry out a large volume of analytical work themselves without proper support. And people who lack the necessary context may miss important details. Nor will the HCJ secretariat help, because it lacks that capacity.
6. The assessment of competence, where the Ukrainian part of the commission now has a veto, is proposed to be based on an interview… not on an examination, which would be more logical. International experts will clearly be doing more listening here, while the Ukrainian members will find ways to sink an inconvenient candidate and give a warm welcome to the one on whose behalf someone “made a call.”
7. Integrity is to be checked in an interview or through written questions. The commission’s decisions must be reasoned, but the law says nothing about publishing them. That is, it will not even be publicly clear what the candidate rebutted. And if no interview is scheduled, there will also be no way to find out what questions were asked. Only candidates eliminated from the competition will be able to request decisions with reasoning.
8. If the Selection Commission does not pass enough candidates — for example at the competence interview — the HCJ may simply leave the composition of the HQCJ incomplete. Is the HCJ obliged to fill the HQCJ up? The law does not require this. Everything can be left as it is, and a new competition announced only once the international experts’ mandate has expired again.
9. The draft law narrows the role of the international experts and requires that one of them hold a Ukrainian passport. Not a bad requirement — right up until a prosecutor reads out at a hearing the correspondence of former Deputy Prime Minister Olha Stefanishyna, in which she asks the Ukrainian members of the commission selecting the head of the NACP to pass or sink certain people. It is easier to put pressure on an expert from Ukraine, for instance through criminal proceedings by the SBI.
10. After the selection, the entire body of information gathered by the Selection Commission is handed over for storage to the HCJ secretariat. In effect, for years the HCJ will have access to “compromising material” on every HQCJ member, which can be used against the person.

It looks as though the Ukrainian authorities are learning at an exponential rate how to formally tick the box next to a reform while at the same time hacking the system. The international experts appear to be there, and yet the competition is controlled. Manual control over judges and over the bodies that select or dismiss them is already a relic of history. Those who, by fair means or foul, are still trying to push these approaches forward will soon be left in the past as well.

We will do everything we can to ensure that the Venice Commission does not fall for this not-so-cheap trick, which has already been pulled off with integrity declarations for judges. We wrote about that precedent separately in the article “Imitation instead of reform: MPs have turned the vetting of judges into a formality.”