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HISTORY OF ESTABLISHING OF THE HIGH QUALIFICATION COMMISSION OF JUDGES OF UKRAINE

  Volodymyr Vikhrov,
Member of the High Qualification Commission of Judges of Ukraine
 
Kazakevich Polina
Head of Department of International Cooperation of the High Qualification Commission of Judges of Ukraine

The High Qualification Commission of Judges of Ukraine (hereinafter - the Commission) is an integral part of the judicial system of Ukraine, which legal regulation is in the process of formation and development. In our opinion, the history of the institution of the Commission can be divided into periods based on such criterion as the level of government regulation of the qualification commissions’ activity since the declaration of the independence of Ukraine. It is possible to single out the following stages:

1) the stage of "Soviet and post-Soviet" elaboration of the law of Ukraine on the qualification collegiums (commissions);

2) the stage of emergence of national legislation on the qualification commissions;

3) the stage of stabilization of legislative framework in the sphere concerning the High Qualification Commission of Judges of Ukraine.

The first stage is associated with the adoption and implementation of the Law of Ukrainian SSR (hereinafter USSR) № 8817 -XI, which regulated the activity of the Qualification Collegium of the Supreme Court (hereinafter - SC) of USSR (elected by the USSR SC Plenum for a five-year term from among the judges of the USSR SC and gave an account of their activity before it), and qualification boards of judges in regions and the city of Kyiv (elected for a five-year term at conferences of judges of district (city) people's courts, regional courts, Kyiv City Court and reported to them). It provided that the Qualification Collegium should consist of 7 - 15 judges, at least half of whom should be national judges.

The main powers of Qualification Collegium of the USSR SC were as follows: 1) to make findings concerning the possibility of promotion to judge of the USSR SC, to chairman or deputy chairman of regional courts and Kiev City courts; 2) to conduct the qualification certification of judges of the USSR SC, of chairmen and deputy chairmen of regional courts and Kiev City courts; 3) to make findings concerning the recall of judges of the USSR SC, of chairmen and deputy chairmen of regional courts and Kiev City courts; 4) to examine questions concerning disciplinary responsibility of judges of the USSR SC, of chairmen and deputy chairmen of regional courts and Kiev City courts; 5) to consider appeals against decisions of qualification boards of regional courts and Kiev City courts on recall and disciplinary responsibility of judges of regional courts and Kiev City courts.

The powers of qualification boards of judges in regions and the city of Kyiv included: 1) to assess the preparedness of candidates to judicial position and to conduct qualification certification of candidates to judicial position; 2) to make findings concerning the possibility of promotion of a candidate to national judge or to judge of regional courts and Kiev City courts; 2) to conduct the qualification certification of national judges and judges of regional courts and Kiev City courts; 3) to make findings concerning the recall of national judges and judges of regional courts and Kiev City courts [1].

The Qualification Collegium of the USSR SC (1989-1994) included: Bilousenko V. G. (Chairman of the Collegium), Davydenko G. I., Malyarenko V. T., Malynnykova A. F., Ovchinnikov Ye. I.; Rotska T. N., Roschenyuk Yu. A., Selivanov M. P., Strelov F. V.; Sheludko Ye. V.; Shidlovskiy V. A.

The first stage is also associated with the activity of the Qualification Collegium of the USSR Supreme Arbitration Court, headed by Moskalenko V. S. [6].

The next stage is connected with the adoption of the Resolution of the Verkhovna Rada of Ukraine "On the Concept of Judicial Reform in Ukraine" from April 28, 1992, which included provisions on the development of regulations on qualification boards; and the Laws of Ukraine "On the Status of Judges” № 2862-ХП from December 15, 1992 [2] and “On the qualification commissions, qualification examinations and disciplinary responsibility of judges of Ukraine” № 3911- ХП from February 2, 1994 [3].

The Law № 2862, in particular, determined that the formation of judiciary is the responsibility of qualification commissions. It is worth mentioning that the term "judicial qualification commissions" was first used in the national legislation in the Resolution of the Verkhovna Rada of Ukraine from December 15, 1992 № 2863 - ХП "On the Implementation of the Law of Ukraine “On the Status of Judges”.

The Law № 3911 determined the system of judicial qualification commissions: 1) qualification commissions of judges of local courts and appellate courts in the Autonomous Republic of Crimea, the Cities of Kyiv and Sevastopol; 2) qualification commissions of judges of commercial courts; 3) qualification commissions of judges of military courts; and 4) the High Qualification Commission of Judges of Ukraine.

Members of all the qualification commissions were elected for a five-year term.

Significant changes were made to the appointment procedure and composition of qualification commissions.

Thus, qualification commissions of local courts and appellate courts in the Autonomous Republic of Crimea, regions and the Cities of Kyiv and Sevastopol consisted of 11 members (Chairman, Deputy Chairman and 9 members of the Commission). The commissions included eight judges; one person appointed by the Verkhovna Rada of the Autonomous Republic of Crimea, regional, Kyiv and Sevastopol city councils; one person appointed by the Council of Ministers of the Autonomous Republic of Crimea, heads of regional, Kyiv and Sevastopol city state administrations; one person from among the representatives of scientific or educational institutions.

Qualification commissions of military courts and commercial courts were established according to the similar procedure.

High Qualification Commission of Judges of Ukraine consisted of 13 members (Chairman, Deputy Chairman and 11 members of the Commission). The commission included six judges of courts of general jurisdiction, three judges of commercial courts, one judge of the military court, one person appointed by the Verkhovna Rada of Ukraine, one person appointed by the Ministry of Justice of Ukraine, one person from among the representatives of scientific or educational institutions.

The following procedure for the election and appointment of members of qualification commissions was determined:

  • members of qualification commissions of local and appellate courts in the Autonomous Republic of Crimea, regions and the Cities of Kyiv and Sevastopol, commercial and military courts from among the judges were elected by the conferences of judges of corresponding courts;
  • members of qualification commissions of local and appellate courts in the Autonomous Republic of Crimea, regions, the Cities of Kyiv and Sevastopol representing the Verkhovna Rada of the Autonomous Republic of Crimea, regional, Kyiv and Sevastopol city councils were elected at the sessions of these councils, correspondingly; and members representing city councils were appointed by the resolutions of the Council of Ministers of the Autonomous Republic of Crimea, or by the resolutions of heads of regional, Kyiv and Sevastopol city state administrations, correspondingly;
  • members of the High Qualification Commission of Judges of Ukraine from among the judges of courts of general jurisdiction (except for commercial and military courts) were elected by the Congress of Judges of Ukraine, and members of the High Qualification Commission of Judges of Ukraine from among the judges of commercial and military courts were elected by the conferences of judges of these courts;
  • members of qualification commissions of local and appellate courts in the Autonomous Republic of Crimea, regions, the Cities of Kyiv and Sevastopol from among the representatives of scientific or educational institutions were appointed on the proposal of scientific councils of corresponding institutions;
  • members of qualification commissions of judges of commercial and military courts and the High Qualification Commission of Judges of Ukraine from among the representatives of scientific or educational institutions were appointed by the Verkhovna Rada of Ukraine.

Members of qualification commissions of judges exercised their powers on a voluntary basis with pay in the workplace.

The main powers of qualification commissions of judges were as follows:

1. The High Qualification Commission of Judges of Ukraine had to 1) check the conformity of candidates to judicial position to the requirements of Articles 7 and 8 of the Law of Ukraine "On the Status of Judges"; 2) provide findings (recommendations) concerning the possibility of appointing candidates to the position of a judge of the SC of Ukraine or the high specialized court, removing judges from office, and putting an end to judicial retirement, on presentation of the Chairman of the SC of Ukraine or head of the high specialized court; 3) conduct the qualification certification of judges of the SC of Ukraine and heads and deputy heads of appellate courts on presentation of the Chairman of the SC of Ukraine; 4) start the disciplinary proceedings, conduct related inspections and consider the issue of disciplinary responsibility of heads and deputy heads of appellate courts; 5) consider complaints against decisions of qualification commissions of judges of local and appellate courts in the Autonomous Republic of Crimea, regions, the Cities of Kyiv and Sevastopol and qualification commissions of military and commercial courts, except for complaints against decisions on disciplinary responsibility of judges of local and appellate courts considered by the High Council of Justice; 6) review the cases considered by qualification commissions of judges of local and appellate courts in the Autonomous Republic of Crimea, regions, the Cities of Kyiv and Sevastopol and qualification commissions of military and commercial courts, in which there is a separate opinion of a member of the commission.

2. Qualification commissions of judges of local and appellate courts in the Autonomous Republic of Crimea, regions, the Cities of Kyiv and Sevastopol and qualification commissions of military and commercial courts had to 1) check the conformity of candidates to a judicial position to the requirements of Articles 7 and 8 of the Law of Ukraine "On the Status of Judges"; 2) on application of a candidate to judicial position or on presentation of the head of appellate court, conduct qualification certification of candidates to judicial position and provide findings concerning the preparedness to judicial work of every candidate nominated for judicial position of a local or appellate court for the first time; 3) on application of a candidate to judicial position, a judge or on presentation of the head of the high specialized or appellate court, provide findings concerning the possibility of election or transfer of judges to local or appellate courts; 4) provide recommendations on removal of judges from office; 5) on presentation of heads of corresponding courts, conduct qualification certification of judges of local and appellate courts and assign qualification classes; 6) start the disciplinary proceedings, conduct related inspections and consider the issue of disciplinary responsibility of judges of local or appellate court, except for heads and deputy heads of appellate courts; 7) put an end to judicial retirement.

On June 28, 1996 the Verkhovna Rada of Ukraine adopted the Constitution of Ukraine that laid the foundations of the constitutional development of the institute of qualification commissions. Article 127, in particular, states “A citizen of Ukraine having attained at least twenty five years of age, having a higher legal education, three years of work experience in the legal profession, having resided in Ukraine for at least ten years, and having command of the state language may be recommended for the office of a judge by the Qualification Commission of Judges”. It is worth mentioning that the legislation on the judiciary was in the state of intense development and improvement at that time.

The Law of Ukraine № 3018-III introduced amendments to the structure, status and procedure for the election and appointment of members of qualification commissions [4]. It also determined the legal status of qualification commissions, i.e. the permanent body in the judicial system of Ukraine, which powers are defined by the Constitution of Ukraine and the referenced Law. The Law specified the functions of qualification commissions, which included formation of the body of professional judges that can competently, conscientiously and impartially administer justice by selecting and recommending individuals for positions of professional judges; assessment of the level of professional training of judges; consideration of disciplinary cases against judges; and providing opinions on removal of judges from office. It remained that members of qualification commissions of judges exercised their powers on a voluntary basis with pay in the workplace with release from their regular duties.

The number of qualification commissions was enlarged. In particular, the system of qualification commissions of Ukraine consisted of qualification commissions of judges of general courts, qualification commissions of judges of military courts, qualification commissions of judges of corresponding specialized courts, the High Qualification Commission of Judges of Ukraine.

Qualification commissions of judges of general courts operated in the centres of appellate districts: Dnipropetrovsk district qualification commission, which jurisdiction extended to judges of local and appellate courts of Kirovograd and Dnipropetrovsk regions; Donetsk district qualification commission (jurisdiction of Donetsk and Luhansk regions), Zhytomyr district qualification commission (jurisdiction of Vinnytsia, Rivne, Khmelnytsky and Zhitomir regions), Zaporizhia district qualification commission (jurisdiction of Zaporozhye and Kherson regions), Kiev district qualification commission (jurisdiction of Cherkasy, Chernihiv, Kyiv regions and the City of Kyiv), Lviv district qualification commission (jurisdiction of Volyn, Transcarpathian, Ivano-Frankivsk, Ternopil, Chernivtsi and Lviv regions), Odessa district qualification commission (jurisdiction of Odesa and Mykolaiv regions), Kharkov district qualification commission (jurisdiction of Kharkiv and Poltava regions), and qualification commission of the Autonomous Republic of Crimea (jurisdiction of Crimea and the City of Sevastopol).

There also operated the Qualification commission of judges of military courts and qualification commissions of judges of corresponding specialized courts.

Quantitative and qualitative requirements to the staff complement remained unchanged. According to the law, qualification commission of judges consisted of 11 members, 6 of whom were judges; and the High Qualification Commission consisted of 13 members, 7 of whom were judges.

However, the procedure of election and appointment of a member of qualification commission changed. Thus, the qualification commission consisted of six judges (elected at the conferences of judges of corresponding courts), two members appointed by the Ministry of Justice of Ukraine, two members appointed by the regional (Kiev city) council, one person appointed by the Representative of the Verkhovna Rada of Ukraine on Human Rights. The High Qualification Commission of Judges consisted of seven judges (elected by the Congress of Judges of Ukraine), two persons appointed by the Verkhovna Rada of Ukraine, two persons appointed by the President of Ukraine, one person appointed by the Representative of the Verkhovna Rada of Ukraine on Human Rights, one person appointed by the Ministry of Justice of Ukraine.

The law specified the powers of the High Qualification Commission of Judges of Ukraine. Thus, it should: 1) take decisions regarding recommendation of a judge for election to a position of a judge of the SC of Ukraine, the high specialized court, the Court of Cassation of Ukraine, the Court of Appeal of Ukraine, and provide an opinion on the removal of a judge; 2) verify judicial candidates’ and judges’ compliance with the requirements set forth by the Constitution of Ukraine and the laws on the status of judges; 3) conduct qualification attestation of judges of the SC of Ukraine, the high specialized courts, the Court of Cassation of Ukraine, the Court of Appeal of Ukraine and confer qualification ranks upon them; 4) consider disciplinary cases of judges of the Court of Cassation of Ukraine and appellate courts, conduct corresponding inspections and, if necessary, initiate disciplinary proceedings and bring judges to disciplinary liability; 5) review complaints against decisions of territorial qualification commissions of judges; 6) take decisions regarding the second (optional) examination of judges that were refused the recommendation for election to a lifetime position; 7) put an end to judicial retirement (except for judges of local courts); 8) exercise other powers specified by the law.

The People’s Deputies of Ukraine, the Commissioner of the Verkhovna Rada of Ukraine on Human Rights, the Chairman of the SC of Ukraine (head of the high specialized court concerning the judge of the corresponding court, except for initiation of removal proceedings), Minister of Justice of Ukraine, head of the corresponding council of judges and members of the Council of Judges of Ukraine had the right to initiate disciplinary proceedings against judges. Qualification commissions of judges carried out disciplinary proceedings against judges of local courts; the High Qualification Commission of Judges carried out disciplinary proceedings against judges of appellate courts and the Court of Cassation of Ukraine; the High Council of Justice carried out disciplinary proceedings against judges of the SC of Ukraine and the high specialized courts.

The President’s Decree “About the concept for the improvement of the judiciary in order to ensure fair trial in Ukraine in line with European standards” № 361/2006 from May 10, 2006 stated that the current system of qualification commissions of judges needed revision. Qualification commissions of judges for general courts functioned at the level of appellate districts established for specialized courts. A change of boundaries and the number of appellate districts automatically leaded to a modification of the number of qualification commissions for general courts. Moreover, appellate districts of different specialized courts did not always coincide. Different regions were not equally represented in qualification commissions. There were also separate commissions for judges of military, commercial and administrative courts. Therefore, qualification commissions should have been established regardless of specialization and without linking to the appellate districts of specialized courts, but with obligatory inclusion of judges representing each specialized jurisdiction.

The next stage is associated with the adoption of the Law of Ukraine № 2453 – УІ from July 10, 2010 that defined the status of the High Qualification Commission of Judges of Ukraine as a permanent organ of the judicial system in Ukraine [5].

The High Qualification Commission of Judges of Ukraine 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 shall consist of: six judges to be appointed by the Congress of Judges of Ukraine; two persons 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 Ombudsman of the Verkhovna Rada of Ukraine; one person to be appointed by the Head of State Judicial Administration of Ukraine. The members of the High Qualifications Commission of Judges of Ukraine shall, for the term of their appointment, be seconded to the High Qualifications Commission and shall not discharge professional duties associated with their primary employment.

Thus, the establishment of the High Qualification Commission of Judges of Ukraine took a quarter of a century. Today it is the permanent organ in the judicial system of Ukraine, which functions and establishing procedure meet international standards.

References:

  1. Zakon Ukrainskoi RSR «Pro zatverdzhennya ukaziv Prezydii Verkhovnoi Rady Ukrainskoi RSR z pytan sudovoi reformy» vid 17.02. 1990 r. № 8817-KHI.
  2. Zakon Ukrainy «Pro status suddiv» № 2862 – KHP vid 15.12. 1992 roku.
  3. Zakon Ukrainy «Pro kvalifikatsiyni komisii, kvalifikatsiynu atestatsiyu i dystsyplinarnu vidpovidalnist suddiv sudiv Ukrainy» № 3911-KHP vid 02.02. 1994 roku.
  4. Zakon Ukrainy «Pro sudoustriy Ukrainy» vid 07.02. 2002 roku № 3018-SH.
  5. Zakon Ukrainy «Pro sudoustriy ta status suddiv» № 2453 – UI vid 07.07.2010 roku.
  6. Podolyak O.A. Formuvannya systemy orhaniv hospodarskoho sudochynstva v Ukraini / Informatsiynyy visnyk Vyshchoi kvalifikatsiynoi komisii suddiv Ukrainy № 4(8), 2008, s.2-5.
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