KazakevichPolina
Head of international cooperation division
High qualification commission of judges of Ukraine
Status of the High Qualification Commission of Judges of Ukraine
The purposeof this articleis to study thelegal nature ofthe High QualificationCommission of Judges ofUkraine(hereinafter -HQCJU), to determine itsstatus, to analyze majorpowers, functions, procedure of establishing, prove its compliance with the international experience in this sphereand proposefurther improvement ofthe relevantnormative regulation.
According to the Law of Ukraine "On the Judicial System and Status of Judges" (hereinafter – the Law) the High Qualification Commission of Judges of Ukraine is a permanent organ of the judicial system in Ukraine. It is a legal entity, which has a seal bearing the State Emblem of Ukraine and its name, and maintains an independent balance sheet and accounts in bodies of the State Treasury of Ukraine (Article 90) [1]. The Constitution of Ukraine, the Law, Regulations of the High Qualification Commission of Judges of Ukraine, the Code of Judicial Ethics and other legal acts are the legal basis of activity of the HQCJU. In accordance with the Regulations of the High Qualification Commission of Judges of Ukraine the main principles of its activity are openness, transparency, rule of law, equality of rights of participants, the right to appeal its decisions in accordance with the law, the right to defense, collegial decision-making, independence, fairness, objectivity, full clarification of the circumstances, binding decisions [2].
Some lawyers remark that the absence of expressly defined legal status of HQCJU (whether it is a state agency, a public authority or judicial community) gives rise to many questions. In search of answers to these questions, R. V. Igonin in his article emphasizes the administrative and legal nature of the body. He states that "keeping in mind our conclusions on the nature of the powers exercised by the High Qualification Commission of Judges of Ukraine,the inappropriateness of their transfer to judges, and inability of the legislative branch to perform them, the only possible alternative is to define it as the independent executive body with a special status within the judicial system of Ukraine. And we believe that the High Qualifications Commission of Judges of Ukraine is that very body" [3]. In our opinion, the stated point of view is absolutely inacceptable.
As it was mentioned above, the organization and functioning of HQCJU is regulated by the Law of Ukraine "On the Judicial System and Status of Judges", which establishes the legal provisions exclusively on the organization and functioning of institutions of the judiciary. It would be illogical that this special judicial law provides for the activities of another branch of power.
It is absolutely impossible to agree with the statement "judges themselves can not make decisions on application or abolition of disciplinary penalties on their colleagues, as well as make judicial "appointments". The assignment of these exclusive and full powers to bodies formed only by representatives of the judiciary will lead to an emergence of a sustainable, closed-loop corrupted system, developed on the basis of common professional interests and corporate mutual assistance in "solving certain problems", and, thus to the violation of principle of impartiality that is one of the fundamental principles of administrative activity" [3]. Most international legal documents regulating selection of professional judges, judicial career and dismissal processes, emphasize that the judge should establish and maintain high standards of judicial conduct in order to enhance public confidence in the judiciary, which is of paramount importance for support of judicial independence (Bangalore Principles of Judicial Conduct) [4]. The Montreal Universal Declaration on the independence of justice (1983) and the European Charter on the Status of Judges (1998) provide that decisions on dismissal or disciplinary responsibility of judges can be made only by court or upon a decision on the proposal, advice or consent of the committee or body at least half of which are elected judges [5, 6, p. 91-96]. With regard to compliance with these requirements, the Law provides that the Congress of Judges of Ukraine shall appoint the majority of judges of the High Qualification Commission of Judges of Ukraine. In accordance with the Law, the HQCJU shall be composed of eleven members: six judges to be appointed by the Congress of Judges of Ukraine; two persons to be appointed by congress of representatives of higher law schools and scientific institutions; one person to be appointed by the Minister of Justice of Ukraine; one person to be appointed by the Ukrainian Parliament Commissioner for Human Rights; one person to be appointed by the Head of State Judicial Administration (Part 1 of Art. 92 of the Law). However, it should be noted that according to the joint opinion of the Venice Commission and the Council of Europe’s Directorate General of Human Rights and Legal Affairs on the Law of Ukraine the provided establishing procedure of the High Qualification Commission did not receive an explicitly positive assessment. Thus, international experts doubted the expediency of appointment of a Commission member by the executive branch. This objection was based on the fact that the majority of the Commission is composed by judges and, therefore, such appointment by the executive is hardly wise and necessary. International experts noted that the presence in the Commission of a member representing the Minister of Justice with a right to vote may cast doubts, at least on the level of appearances, on the independence of the High Qualifications Commission, and does not respect the separation of powers. They also highlighted the importance of guarantees of political independence of the other ten members of the Commission, including six judges [6; 7]. Thus, the very procedure for their appointment should guarantee the impartial attitude of HQCJU members to the candidates and the prevention of the abuse of the right to appeal[8, с. 19].
Next, the judiciary, as well as any other system is defined by certain structural and functional connections, including coordination, organization and management. Therefore, it is impossible to admit the words of the mentioned above lawyer about "their delegated nature and accept the fact of providing judges with, not just some “amorphous” public authority, but the public authority peculiar to the executive branch" [3]. What is more, if the judges themselves should not be empowered to make decisions on application of disciplinary penalties on their colleagues, then the similar powers should not be left to the executive branch as well, because it can also turn into a closed-loop corrupted system.
In our opinion, the powers of the HQCJU, fixed in Art. 91 of the Law, prove that the High Qualifications Commission of Judges belongs to the judiciary. Accordingly, the HQCJU shall: 1) keep records on the number of judgeships in courts of general jurisdiction, including vacant; 2) keep records on the number of administrative positions in courts of general jurisdiction and immediately notify the appropriate board of judges, the High Council of Justice in case when there is a vacant post of a chairman or a deputy chairman of a court; 3) conduct selection of candidates for judicial position for the first time, verify judicial candidates’ compliance with the requirements set forth by the law and conduct qualification attestation; 4) submit to the High Council of Justice recommendation on the appointment of a candidate for further submission to the President of Ukraine; 5) recommend a candidate to election for a permanent judicial position; 6) estimate number of judicial vacancies and announce competition for candidates to take special training at the National School of Judges of Ukraine; 6-1) in accordance with the criteria defined in the regulations on the special training for judicial candidates, approve the list of specialized higher law schools that deliver such training; 7) make decision on removal from office of a judge charged with criminal offence based on motivated decision of the Prosecutor General of Ukraine; 8) consider complaints in disciplinary matters of judges of local and appellate courts and, if appropriate, open disciplinary cases and conduct disciplinary proceedings; 9) make decisions in disciplinary cases and, if necessary, impose disciplinary sanctions to judges of local and appellate courts; 10) make decisions on early withdrawal of a disciplinary sanction applied to a judge; 11) exercise other powers specified by the law. The High Qualification Commission of Judges of Ukraine is entitled to require any necessary information from judges, State Judicial Administration of Ukraine, judicial authorities and other judicial bodies, state and local authorities, enterprises, institutions, companies of either ownership and subordination, associations, public interest organizations and private entities, and the refusal to provide such information entails liability under law.
The legal scholars mention that HQCJU has both jurisdictional and non-jurisdictional powers. The majority of its powers are non-jurisdictional and are related to accounting, monitoring, staffing and informational support of the judiciary [8, p. 19]. The analysis of the HQCJU powers gives the following results.
The HQCJU keeps records on the number of judgeships in courts of general jurisdiction and the number of administrative positions in courts of general jurisdiction, including vacant (accounting function [8, p. 19]). Moreover, the HQCJU should immediately notify the appropriate board of judges and the High Council of Justice whether there is a vacant post of a chairman or a deputy chairman of a court.
As to the issue of appointment of candidates for judicial position for the first time, the Law provides for the following procedure. Firstly, taking into account the estimated number of open judicial vacancies, the HCQJU shall post on its web portal an announcement about competition of candidates for judicial positions and publish an announcement in local printed media and in the official periodical of the VerkhovnaRada of Ukraine. Secondly, on the basis of submitted documents the HCQJU shall review the eligibility of every person whether they meet the requirements for a candidate for a judicial position and conduct a background check in the manner prescribed by the Law. The contents of the information requested from the candidate must be approved by the HCQJUand published on its official website. Thirdly, the candidates shall take an examination on general theoretical knowledge in the sphere of law. Then, the HQCJU shall send candidates who passed the first examination to take special training at the National School of Judges. Candidates who successfully passed the special training shall be admitted to take a qualification examination by the HQCJU. On the basis of the results in the qualification examination, the HQCOU shall rank the candidates and put them on “reserve list” to fill vacancies. Then in case the vacancies to be filled are available, the HQCJU shall announce the competition among candidates from reserve list. Taking into account the place of candidate in the rating list the HQCJU according to the number of vacant judicial positions shall conduct the selection among the candidates who have taken part in the competition and forwards to the High Council of Justice recommendation to appoint the candidate to the judicial position.
Besides,HQCJUkraine engages in the transfer of a judge to another local court within the five-year term of appointment, since the judge mustapplywith a written statementtoHQCJUto recommendthemas a judgeto a respective court.
As of election of judges to a permanent judicial position, the procedure can be summarized as follows. (1) A judge, whose five-year term comes to an end, shall apply in written to the HCQJUfor a recommendation to be elected to a lifetime position; (2) the HQCJU shall publish information on the preparation of materials for the election of the candidate to a judicial position on its official web-site and in local printed media; (3) the HQCJU shall examine the application, in the light of the “case consideration rates” of the candidate and the information received from external sources; (4) the HQCJU shall decide to recommend or refuse to recommend the candidate to be elected, and its decision, in either sense, shall be forwarded to the VerkhovnaRada of Ukraine. The decision to recommend or refuse to recommend a candidate for election to a permanent post shall be taken in presence of the candidate in the manner prescribed by the Regulations of HQCJU at the HCQJUmeeting and shall be announced immediately after adoption. A decision of the HQCJU to refuse to recommend a candidate for a lifetime judicial position may be appealed to the High Council of Justice in the manner prescribed by the Law of Ukraine “On the High Council of Justice”.
According to themembers ofHQCJU,the High QualificationCommission of Judgesis the first and, in fact, the main elementinthe chain of appointmentprocedures inthe judicial systemof Ukraine,asthe other institutions (the VerkhovnaRadaof Ukraine orthe High Councilof Justice, in particular) only reviewthedecisionprepared andthoroughlyanalyzed by the HQCJU [8, p. 19].
Next, the Law lists such powers of the HQCJU as estimating a number of judicial vacancies and announcing a competition for candidates to take special training at the National School of Judges of Ukraine; and approving, in accordance with the criteria defined in the regulations on the special training for judicial candidates, the list of specialized higher law schools that deliver such training. According to the lawyers, in this perspective, the most important are the powers of estimation of a number of candidates to be trained in the National School of Judges of Ukraine to compete for vacant judicial positions [8, p. 19].
The next group of powers of the HQCJU is related to bringing judges to disciplinary liability, removal from office and dismissal. This is the so-called jurisdictional activity of the HQCJU, realized in dealing with disciplinary cases against judges of local and appellate courts [8, p. 19]. Thus, the HQCJU shall make decision on removal from office of a judge charged with criminal offence based on motivated decision of the Prosecutor General of Ukraine. The decision of the Prosecutor General of Ukraine on removal from office of a judge shall be registered in the secretariat of the HQCJU no later than the day following the date of it receipt and shall be considered at the next meeting of the Commission.
The HQCJUshall also consider complaints in disciplinary matters of judges of local and appellate courts and, if appropriate, open disciplinary cases and conduct disciplinary proceedings; as well as make decisions in disciplinary cases and, if necessary, impose disciplinary sanctions to judges of local and appellate courts. The above powers are regulated by paragraph 6 of the Law. Thus, the HQCJU shall publish on its official web-site an example of a complaint (application form) on the misconduct of a judge, which can be used to report to the High Qualification Commission of Judges of Ukraine information on violation by a judge of requirementsregarding their status or official responsibilities, or on violation of the judicial oath. Verification of information on the presence of grounds for taking disciplinary action against a judge of a local or appellate court shall be performed by the appointed member of the HQCJU, who is entitled to demand information and, based on the results of the verification, writes an opinion presenting the facts and circumstances which have been found and a proposal either to open or dismiss a disciplinary case. The HQCJU shall then decide whether to do so. The HQCJU shall discuss the outcome of the disciplinary proceedings in the absence of a judge against whom the complaint is made and other interested persons. The decision in a disciplinary case shall be taken by a majority of the votes of all of its members. When deciding on a disciplinary sanction against a judge, account shall be taken of the nature of the offence, its consequences, the personality of the judge, the extent of their guilt, and the circumstances impacting the choice of a disciplinary sanction. If the HQCJU decides there are no grounds for bringing judges to disciplinary responsibility the Commission shall terminate disciplinary proceedings and notify the interested persons thereof. If the HQCJU thinks that the judge should be removed, it shall send a recommendation to the High Council of Justice.
In order to ensure proper verification of the grounds for bringing judges of local and appellatecourts todisciplinary liability, the body of disciplinaryinspectors (in number of 33 inspectors) was established at the HQCJU. Eachmember of theHQCJU is assisted by threedisciplinaryinspectors.
As currently note the representatives of the HQCJU, there are certain difficulties in functioning of the Commission. Thus, the Law of Ukraine "On the Judicial System and Status of Judges" does not provide for operation of regional branches or representative offices of HQCJU in regions and in the city of Sevastopol, which brings forward the need for personal involvement of a judge or a candidate for a judicial position when their case is under consideration at the HQCJU. This results not only in distracting judges from their occupational duties, but also in a significant increase of workload on each member of the HQCJU, due to the presence of a large number of cases and the need for an individual approach to their solution [8, p. 20].
It is worthwhile to stress the need to consider responsibility of a judge as a component of their status. Article 56 of the Constitution of Ukraine provides that “Everyone has the right to compensation, at the expense of the State or bodies of local self-government, for material and moral damages inflicted by unlawful decisions, actions or omission of bodies of state power, bodies of local self-government, their officials and officers during the exercise of their authority”. Therefore, we believe that it is appropriate to supplement the Law of Ukraine "On the Judicial System and Status of Judges" with an article that would regulate the responsibility of the HQCJU (its members) for omissions or improper performance of their duties.
Taking into consideration all the above, it becomes evident thattheHigh QualificationCommission of Judges ofUkrainebelongs to the judicial branch of power that is established and operates in accordance with the internationallegal standardsin this sphere.Still, it is possible that some aspects of its activity require improving.
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