There are no obstacles to the formation of the High Qualification Commission of Judges
As soon as the Selection Commission published the list of candidates for the HQCJ, a number of manipulations occurred: allegedly, the Commission was supposed to recommend at least 16 candidates-judges but recommended only 10. Here we explain why it is a manipulation and why there are no legal obstacles to the formation of an operational composition of the HQCJ.
Part 3 of Article 92 of the Law of Ukraine “On the Judiciary and the Status of Judges” (hereinafter – the Law) indeed specifies that 8 out of 16 members of the HQCJ should be judges or retired judges. However, neither Article 95 of the Law, which defines the procedure for conducting the competition, nor other articles contain any provision that would require the Selection Commission to select separately candidates who belong or have belonged to the judicial profession.
Part 5 of Article 95 contains a general indication that the total number of candidates to be selected by the Commission should be twice the total number of vacant positions. There is no requirement in this rule that any number of candidates must be judges or retired judges. Moreover, this requirement applies to the total number of candidates recommended by the Commission for all vacant positions in the HQCJ and not to each vacant position separately. That is, the Law requires the Commission to recommend at least 32 candidates for 16 seats in the HQCJ, not two candidates for each vacant seat. Using such a “paired” approach would mean linking specific candidates to specific vacancies in the HQCJ. In this case, the appointment of one of the pair would mean the termination of further participation in the competition for the other. But it is impossible to clearly establish which of the vacancies in the HQCJ are “judicial” and which are not.
Moreover, if the Law stipulated that the Selection Commission should select 16 candidates-judges, it would certainly have been clearly stated. However, there is no such provision. Part 19 of Article 95 of the Law specifies that an additional competition is announced only when the number of candidates selected by the Commission is less than the requirement established by the Law, namely the number of vacancies multiplied by two. In the event that there are 16 vacant positions, a new competition should be announced if the Selection Commission does not select 32 candidates. This provision does not have any indication that the reason for the additional competition is the insufficient number of candidates-judges or retired judges. Therefore, the provisions of the Law are unambiguous: the Commission must select at least 32 candidates for 16 vacant positions, regardless of whether they belong to the judicial profession or not.
The requirement that there should be at least eight judges in the composition of the HQCJ is established not for the Selection Commission but for the HCJ, which will determine the final composition of the HQCJ. At the same time, the main task of the Selection Commission is to select only those candidates who best meet the requirements of integrity and professionalism. Therefore, the list of candidates proposed by the Selection Commission fully meets the requirements of the Law, as it contains twice as many candidates as vacant positions.
The HQCJ can appoint eight judges to the HQCJ from the ten proposed candidates or limit itself to 6, which is necessary for the HQCJ to become operational (Part 4 of Article 92 of the Law). In the second case, an additional competition will have to be held.
If the HCJ believes that among the ten proposed candidates-judges there are eight decent ones to be appointed to the HQCJ, then there are no legal provisions that would not allow the HCJ to form an operational composition of the HQCJ right now.
