DEJURE Foundation proposes a model for selecting trustworthy judges
21.06.2019
The proposal of the DEJURE Foundation to replace the members of the High Qualification Commission of Judges (HQCJ) and the High Council of Judges with the goal of carrying out a real cleaning up of the judiciary

The events of the past few months have demonstrated that entrusting cleaning of the judiciary to representatives of the "old system" is like sifting flour through a broken sieve with a hole in it. The key problem here is rooted in the fact that judicial governance is entrusted to judges whose integrity is under question.

Consequently:

  • 44 dishonest candidates became judges on the "new" Supreme Court.

  • As of April 1, 2019, the qualification assessment had been completed for 2,409 judges, from which only 156 were recommended for dismissal, and in fact only 15 were dismissed.

  • High Council of Judges (HCJ) uses its powerful position to pressure and intimidate independent judges.

  • For the last 5 years, no judges have been appointed to local or appellate courts.
    This happened for a variety of reasons, including the fact that the current composition of the HQCJ:

    • With ease, overrules the majority of negative conclusions by the Public Integrity Council (PIC) by means of 11 of 15 HQCJ members voting in favor to do so.

    • In the cases where 11 votes could not be gathered, the HQCJ announces a break in the qualification assessment instead of recommending the judge to be dismissed by the HCJ.
    • Ignores requests that the qualification assessment process be slowed down so that it is not turned into a formality.

    What is the alternative for the current situation?

    • It is necessary to completely replace the members of the judicial governance bodies.

    • Candidates for the HQCJ should be screened by the Public Council of International Experts (PCIE), which demonstrated high effectiveness during the process of selecting the High Anti-Corruption Court.

    • Half the members of the HQCJ should be chosen by judges from among judges using electronic voting (for purposes of ensuring impartiality and preventing pressure or intimidation of judges). The other half should be selected by civil society organizations, who have demonstrated experience and high standards from among lawyers, human rights defenders, scholars, and journalists.
      Illustration:
      Victoria Arkhypenko
      How must the HCJ be updated?

      • In addition to its current functions (carrying out the selection and assessment of judges), the HCJ should also have the function of monitoring for compliance with judicial duties. As a result of the ineffective implementation of the procedures for carrying out the qualification assessment for the composition of the current HQCJ, the new HQCJ must have the power to review decisions of the previous commission.

      • Cleaning up the HCJ through the same principles is not possible because the subjects of its formation and their quotas are enshrined in the Constitution of Ukraine. At the same time, the Constitution specifies that the formation of the HCJ is established by law.

      • New requirements for members of the HCJ must include integrity and impeccable reputations.

      • The PCIE must evaluate the integrity of the current members of the members of the HCJ over a period of six months. A negative decision from the HQCJ should be grounds for automatic dismissal from the HCJ.

      • For vacancies in the HCJ, there must be a new competition. The preliminary selection of the best candidates for the HCJ will be carried out by the PCIE and selected from among the subjects defined in the Ukrainian constitution. Candidates for the HCJ may be selected if they are on the list of candidates whose integrity was verified by the PCIE. This will ensure that clearly malicious candidates will not become members of the HCJ and will improve the work of the Council.
      The entire procedure for replacing the members of the judicial governance bodies would take, in the absence of deliberate delay, 6 to 9 months from the introduction of the bill into the newly formed Ukrainian Verkhovna Rada.

      These proposals have been recorded in the Agenda for Installing Justice, which was formed by 18 leading non-governmental organizations. We urge all political parties planning to take part in the Verkhovna Rada elections to publicly express their views on these points and others expressed in the Agenda.
      DJR
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