Credibility of High Anti-Corruption Court is Impossible Without Transparent Competition
08.11.2018
Anti-Corruption Action Center, Automaidan, DEJURE Foundation and Transparency International Ukraine welcome the fact that members of the Public Council of International Experts (hereinafter PCIE) have been selected. The organizations urge the High Qualification Commission of Judges of Ukraine to ensure proper conditions for the international experts' work and to adopt rules that will ensure transparency in the competition for the High Anti-Corruption Court. If these requirements are not met, it may undermine the international experts' real influence on the competition, and previous mistakes made in the course of selecting Supreme Court judges may occur once again.
Photo: the HQCJ
According to the schedule announced by the High Qualification Commission of Judges (HQCJ) of Ukraine, the six members of the PCIE were to be appointed by the end of October. Even though the candidates were nominated in mid-September, it took the HQCJ a month and a half to name the PCIE members, curtailing the time they would have to analyze the candidates.

At the same time, the conditions for the international experts' full-scale participation in the competition have not yet been set. The procedure for the international experts and their translators to access the candidates' full records has not been established.

Transparency in the competition for the High Anti-Corruption Court has not been ensured either. As of today, the HQCJ has not defined clear criteria for assessing the candidates' integrity. The current assessment methodology, regrettably, previously allowed candidates who could not explain the origins of their wealth and whose actions were recognized by the European Court of Human Rights as a violation of access to justice to be nominated and confirmed as Supreme Court judges. If this methodology remains in use for the High Anti-Corruption Court, it will render the final stage of the competition opaque and its results subject to manipulation.

In this situation, the international experts will not be able to play a crucial role in the selection of anti-corruption judges. Instead, corrupt elites will be able to nominate candidates they are comfortable with for the High Anti-Corruption Court.

We urge the High Qualification Commission of Judges of Ukraine to take the following steps to ensure an independent competition for the High Anti-Corruption Court:
1
Provide the PCIE members and its secretariat with full access to information on each candidate, including personal data from their profiles and data from public registers.

The status of an auxiliary agency under the HQCJ, stipulated by the Law on the High Anti-Corruption Court, grants the PCIE access to the same scope of information that is available to the Commission. Therefore, the PCIE must be given full access to each of the candidates' personal information.

It would be unacceptable for candidates to grant or deny the PCIE access to their personal data at their own discretion. This would enable candidates to avoid having their eligibility verified by the PCIE.

The PCIE's access to open public registers is directly provided by the law. Since arranging separate access may require too much time, the HQCJ must share their access to registers with the PCIE members. It is also essential for the this access to be granted to the PCIE secretariat for the purposes of translation, so that the PCIE can perform its functions.
2
Provide the PCIE and its secretariat with access to practical assignments completed by the candidates in the course of their examination.

According to the law, the PCIE must assess not only the candidates' integrity, but also their professionalism. What is more, the PCIE must assess their professionalism independently of the HQCJ’S evaluation.

This function cannot be performed if the PCIE does not have access to the practical assignments completed by the candidates as part of their examination.

We emphasize that the law does not restrict the Commission in the publication of the examination’s components and results. Thus, the HQCJ has the capacity to grant the PCIE access to the candidates' practical assignments on its own accord.

Likewise, the PCIE’s access to candidates' practical assignments cannot be granted or denied by the candidates themselves, since the PCIE’s analysis is an integral part of the competition.
3
Define clear criteria for candidates' integrity as well as the standard of proof for candidates' compliance or failure to comply with these criteria.

Currently, the HQCJ is promoting a subjective definition of integrity for the potential judges, which leaves a lot of room for manipulation. Unfortunately, because of this approach, Supreme Court candidates with negative verdicts from the Public Integrity Council received high scores for integrity, while whistleblower judges received much lower scores.

The HQCJ must develop and publish integrity criteria that should be based on the Bangalore Princioles on Judicial Conduct approved by the United Nations Economic and Social Council.

That being said, the HQCJ also believes that a candidate can be considered dishonest only if his or her fault is proven, which means that criminal standards are applied where an individual is entitled to the presumption of innocence., This approach, however, is unacceptable when it comes to the selection of candidates for positions where public trust is crucial.

Instead, it should be established that reasonable doubt regarding a candidate's integrity should constitute sufficient reason to reject the candidate from the Anti-Corruption Court, and the burden to prove the opposite should be placed on the candidate himself or herself.
4
Change the methodology of candidates' assessment in favor of objective indicators.

The current assessment methodology allows the HQCJ to select winners at their own discretion from the remaining candidates following the PCIE "filter". It is the HQCJ that compiles the final ratings of candidates and is responsible for choosing the best candidates.

Yet, as of now, the Commission members can give 79% of the maximum score to candidates at their own discretion. Only 210 points out of the maximum score of 1000 points account for the judges' examination results. The HQCJ methodology, which should make the remaining 790 points clear and understandable for the public, does nothing to clarify the situation and enables manipulation.

The HQCJ must change the assessment methodology, including both the examination results and the integrity evaluation in the final score.
5
Ensure that the scores given by each HQCJ member to each candidate based on each assessment criterion and the explanation of every score are published.

Currently, the HQCJ clarifies its decisions by simply providing the total scores of each candidate, as well as their total score for professionalism, integrity and professional ethics. The HQCJ does not explain the scores they give to candidates, nor does it show the individual score given by each of the Commission members. Moreover, the Supreme Court of Ukraine has recently recognized the HQCJ's decision on the qualification assessment of one judge illegal, since the decision did not contain enough rationale. The practice of unfounded decisions should be over.
If the High Qualification Commission of Judges neglects these requirements, it means it intentionally leaves room for the results of the competition for the High Anti-Corruption Court to be manipulated.

As a result, the independence of the Anti-Corruption Court from political influence may well be challenged even before its creation. We urge the HQCJ to ensure the independence of the Anti-Corruption Court, proper conditions for the international experts' work and overall transparency in the selection of anti-corruption judges.
DJR