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Judicial Reform: Regulation of the HCJ on Competition to the HQCJ contradicts legislation

On 10 December, the High Council of Justice (HCJ) approved the Regulation on the Competition for taking a position of a member of the High Qualification Commission of Judges of Ukraine (HQCJ). This regulation contradicts the Law of Ukraine “On the Judiciary and the Status of Judges” with certain provisions thereof diminish the role of international experts in the competition commission. This is addressed in the report prepared by the Centre of Policy and Legal Reform.

1. The HCJ unlawfully determined that the majority of the future composition of the HQCJ shall be comprised of judges

The competition provides for the establishment of the HQCJ where the judges will constitute the majority. However, the new law of Ukraine on the judiciary removes the quota of judges in the HQCJ which shall be instead composed of those individuals that qualify to become its member.

In fact, the HCJ provided for the principle of HQCJ formation not stipulated by law. At that the representation of judges in the HQCJ remains exclusively the matter of legislative regulation.

Recommendation: to remove the provision concerning the judges’ representation in the HQCJ and discriminatory advantages for judges participating in the competition as contradicting the Law of Ukraine “On the Judiciary and the Status of Judges”.

2. The HCJ set the requirements to the members of the competition commission not stipulated by law

Paragraph 3.5. of the Regulation requires from any future member of the competition commission to have at least five years of judicial experience and absence of disciplinary punishment that is not spent. However, the law does not provide for such the requirements.

Also, paragraph 3.8. of the Regulation requires from a candidate to the competition commission to submit a copy of the diploma in law. However, the Law of Ukraine “On Higher Anti-Corruption Court” does not require from international experts to have a diploma in law.

Recommendation: to remove the requirements set to the candidates to the competition commission that are not stipulated by legislation.

3. The contents of the Regulation is based on the false understanding of the legal status of the competition commission

The Regulation defines the competition commission as an auxiliary body of the HCJ. However, the legislation neither defines the commission as body nor specifies its auxiliary character.

Article 95-1 of the Law of Ukraine “On the Judiciary and the Status of Judges” defines the competition commission as an independent subject that selects the list of candidates that the HCJ shall appoint to the positions of the HQCJ members instead of assisting the HCJ in such appointment. It means that the competition commission plays a key role in determining the future members of the HQCJ.

Recommendation: to align the Regulation with the status of the competition commission as an independent subject of the competition of the HQCJ members.

4. The HCJ confers itself with powers not stipulated by legislation

Paragraph 2 of the Article 19 of the Constitution of Ukraine obliges the state authorities to act exclusively in the manner stipulated by legislation. However, the HCJ conferred itself with certain powers that are not stipulated by legislation, namely:

Recommendation: to remove those provisions of the Regulation that vest to the HCJ the powers not stipulated by law.

5. The procedure for the selection of the HQCJ members as approved by the HCJ diminishes the participation of the international experts and creates a room to manipulate the results of the competition

The Regulation stipulates that the substantive part of the competition is carried out in two stages:

1) Evaluation of the professional background (10 points), knowledge and skills (50 points), moral and professional qualities (20 points).

It is not clear how the members of the competition commission, without a separate interview with a candidate and solely based on written materials will be able to evaluate his moral integrity and professional experience.

2) Interview (10 points) given that the candidate scored 60 points during the first stage.

Should this procedure apply, the role of international experts in the competition commissions is minimized, since more than 50% of the maximum score is received based on those results of testing that may be manipulated. This procedure also diminishes the veto right of international experts with regard to those candidates that have moral integrity-related issues, since the voting of the competition commission members is carried out when the final rank is being determined, meaning that at that time all the scores are already received.

Recommendation: to amend the procedure so that to ensure the real role of international experts in selecting members of the HQCJ.

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