article by SERGII KOZIAKOV, PhD (International Law),
Institute of International Relations at Taras Shevchenko National University of Kyiv
There are two reasons for this article.
First, the Parliament voted in favour of two laws aimed at making the High Qualification Commission of Judges of Ukraine (HQCJ) operational again.
It should be reminded that the grand-scale work of the HQCJ (in 2015–2019, it became one of the largest “staff agencies” of the judiciary in the world in terms of the number of staff decisions made) was terminated on November 7, 2019 by the current government, which action has been admitted as a political mistake by the same government. However, today there appeared a real chance to complete important staff procedures initiated by former HQCJ members and to start and complete the procedures necessary to resolve staff crisis in Ukrainian courts in general.
Secondly, the statement by Fedir Venislavskyi, representative of the President of Ukraine in the Constitutional Court that Ukraine lacks about 2,500 (!) judges, and there may be significant increase in the number of vacancies by the end of the year. The vacancies which, according to Venislavskyi, nevertheless "will be filled fairly quickly by professional judges."
In this article, assuming that the HQCJ, after a two-year break and even if the HQCJ is in full composition will be able to resume operations by the end of this year, I will try to give a professional forecast on the possibility of “filling quickly” the vacancies Ukrainian courts.
The High Council of Judiciary (HCJ), a constitutional body, is confident that the priority workstreams of the new HQCJ will cover:
- completing qualification evaluation;
- immediately selecting judges for first and appeal instance courts;
- renewing mandate of 389 judges who do not administer justice as the five-year term of office granted to them before October 2016 expired.
However, the situation may unfold in two rather different scenarios as regards implementation timeline. In the first scenario, the new members of the HQCJ may decide to continue and complete the procedures initiated by the previous members of the HQCJ. In this scenario, it has to do with institutional continuity of the reform. In the other scenario, the new members of the HQCJ may decide to stop the important staff procedures initiated by the former members of the HQCJ, partially or completely, and to start from scratch.
In case latter scenario is followed, any predictions about “fast” or “slow” timelines will be unprofessional, manipulative and populist.
For reference: according to the High Council of Judiciary, as of June 11, 2021, there are supposed to be 7,304 judges in the judiciary under staff schedule. 4,954 judges have mandate to administer justice. 1,977 judicial positions remain vacant. According to the HQCJ, as of July 19, 2021, there were 5,389 judges on the list of judges of Ukraine (including those who, by virtue of the law, are temporarily without mandate to administer justice). Meanwhile, as of December 31, 2013, in Ukraine, according to the staff list, there were 9,071 judges administering justice in 767 operating courts. De facto 8,371 judges administered justice.
Where did 35% of the judges go?
There were the most statistically significant changes in the staffing of Ukrainian courts after 2014. Three factors were the main driving forces behind this:
- Negative developments in the judiciary when Yanukovych was the president were one of the reasons behind the Revolution of Dignity.
- The annexation of Crimea by the Russian Federation (in violation of international law) and the loss of control over part of the territory of Ukraine in the Donetsk and Luhansk regions.
- Strong (and sometimes violent) demands by hundreds of thousands of participants of the Revolution of Dignity across the country to purge the judiciary backed up by legislative decisions of the Parliament in 2014, 2015 and 2016.
These factors, along with the demand for a fair trial that was not met in many social strata throughout the years of independence of Ukraine led to a radical reduction in the judiciary. Because of the annexation of Crimea, 36 courts stopped operating there. 57 courts stopped functioning in the uncontrolled territories of the Luhansk and Donetsk regions. Subsequently, eight courts were relocated and jurisdiction was changed in respect of 49 courts.
The HQCJ, which from December 9, 2014 to November 7, 2019 operated as a crisis manager, transferred 44 judges from the courts of the Autonomous Republic of Crimea to courts in the controlled territory during the first months of its functioning. Some of the 448 judges remaining in the annexed territory resigned; the majority of them became judges of the Russian Federation and the new composition of the HQCJ subsequently recommended to for dismiss them for violation of the oath.
As of 01.12.2014, 442 judges were working on the territory of Luhansk and Donetsk regions. Of these, 302 judges were transferred to courts operating in the controlled territory.
How did the law of natural selection work?
Under pressure from the public, yet in order to avoid dismissing all the judges at the same time, the Law “On Ensuring the Right to a Fair Trial” (which entered into force on March 28, 2016) provided for a procedure for the so-called primary evaluation of judges. It implied an exam and a public interview with judges conducted by the HQCJ. For the first time, analytical information provided by the National Anti-Corruption Bureau of Ukraine was used during interviews with judges.
Between February - the beginning of June 2016, the HQCJ conducted initial qualification evaluation of 381 judges. The procedure was completed successfully only for 69% of judges.
However, in the next four months, almost unpredictable events took place. 1449 judges resigned and were subsequently dismissed!
Comparing the events of 2016 with other periods, the High Council of Justice notes that over the 22 years of its operations, the highest numbers of resignations by judges were considered in 2010 (368 decisions), 2013 (243 decisions), 2015 (362 decisions) , 2016 (1449 decisions) and 2017 (405 decisions).
And if in 2015 the judges resigned because of the unstable situation in the country, connected, as we have already noted, with the annexation of Crimea in 2014, as well as the anti-terrorist operation in the Donetsk and Luhansk regions, in 2016 they resigned because of the primary qualification evaluation procedure. For this part of the judges, financial guarantees upon retirement turned out to be more attractive than continuing to work in the reformed system.
It is important to emphasize that there were only five (!) lawsuits filed regarding the results the primary qualification evaluation procedure. Bottom line: only one decision of the HQCJ has been cancelled to date, which indicates the procedural and legal quality of the procedure implemented.
In the wake of qualification evaluation
Based on the first experience and in order to further work on fighting against problems in the judiciary (political dependence, corruption, etc.) on June 2, 2016, the Parliament of Ukraine adopted the Law of Ukraine No. 1401-VIII “On Amending the Constitution of Ukraine (regarding justice)” and the Law of Ukraine No. 1402-VІІІ “On the judiciary and the status of judges” (new edition), which entered into force on 30.09.2016. These laws, along with other important changes, provided for a more complex procedure for qualification evaluation of judges for eligibility for the position held (QE), which in other departments is called re-attestation.
QE procedure is a procedure whereby by the High Qualification Commission of Judges of Ukraine determines if the judge is in a position to administer justice in respective court or assesses if a judge is eligible for the position held according to criteria specified by law. QE, which is to be conducted transparently and publicly, includes an examination, as well as examining the case file and conducting an interview.
In the QE procedure, the Commission analyses the exam results, dozens of sources of information received from the judge himself/herself, authorized authorities, the media, social networks, civic society organizations and the Public Integrity Council (PIC). Moreover, HQCJ members analyse the results of testing a judge's personal moral and psychological qualities and general abilities. According to the calculations of the Commission, about 30 hours per each judge are spent in the QE procedure altogether at all the stages of the procedure.
On October 20, 2017, by the decisions of the Commission, QE procedure for eligibility for the position held was appointed in respect of first 999 judges, and then 4,181 judges (a total of 5,180 judges) of local and appellate courts.
In order to carry out such a large-scale and complex procedure in a quality manner, hundreds of pages of local regulations were drawn up; many thousands of tests and hundreds of practical tasks for judges of different instances were created; case file for each judge was drawn up and for the first time in the world posted in the public domain on the website of the HQCJ; psychological testing of judges based on internationally recognized methods was arranged with donor assistance; dozens of trainings were conducted for 16 members of the HQCJ, 48 inspectors and dozens of other secretariat staff members; the procedures for the Public Integrity Council members to participate in QE were worked out.
And finally, the Integrated Information Security System was developed and put into operation in December 2016, which is crucial to ensure honesty and transparency of procedures, as well as to prevent interference with computer networks aimed at distorting results.
There were no decisions made to destroy the QE files: all files are contained in the judge's case file and the automated system of the HQCJ. By the time the previous composition of the HQCJ resigned, the QE of 60% of the judges was fully completed.
For reference: after QE of more than 3,000 judges of local and appellate courts for eligibility with positions held that was started after the Law of Ukraine "On the Judiciary and the Status of Judges" dated 02.06 entered into force, only 12 (!) decisions were made in cases filed by judges where judges' the claims were partially or completely satisfied.
After an in-depth analysis, QE procedure was positively assessed by our partners from the European Union with some points at issue raised.
What should the future members of the HQCJ do to complete the qualification evaluation?
As of 01 July 2021, the QE as to eligibility for the position held has not been completed for 2,010 judges. At the same time, for the vast majority of judges, only the last step of the procedure needs to be completed, namely interview with HQCJ members.
I have no doubts that the approximate time it will take the new HQCJ to complete this work can be calculated with a high degree of probability. On October 30, 2019, a week before resignation of the entire composition of the HQCJ, when delivering a speech at the XYII Extraordinary Congress of Judges and citing the statistics of interviews with judges, I named the three most efficient months in terms of the interviews.
These months are April 2018 (397 interviews), July 2018 (418 interviews) and September 2018 (328 interviews). This year and months were indeed record-breaking. In other months, an average of 100 to 200 interviews were conducted, taking into account the fact that the HQCJ had to carry out other activities as well. And since February 15, 2019, the HQCJ was then forced to work in the environment of a raider attack, the individual participants of which attack and the methods they deployed were mentioned in the introduction above.
Thus, if the inexperienced (at first) members of the Commission, even with five boards each containing three members of the HQCJ simultaneously conducts at least 200 interviews per month, the procedure as a whole will be completed in 10 months.
And this is an optimistic scenario that can be made true if the HQCJ does nothing else. If along this activity it will also be necessary to work in some cases in plenary format (16 people) in the procedure for overcoming the negative findings of the PIC, this will add extra one to three months to get the work done. It is so in view of the fact that, from the technical perspective, meetings of a collegiate body in panel format (for the HQCJ, this is 16 people) take more time than meetings in boards (3–4 people each). Five boards working at the same time are able to conduct 3-4 times more interviews than a plenary session.
How to overcome the crisis in the courts of appeal?
Another critically important challenge is the dire situation because there are not enough judges in the appellate courts of Ukraine. In some of them, no more than 30% of the supposed number of judges remained. To solve this problem, on August 9, 2019 the previous composition of the HQCJ announced a competition to fill 346 vacant positions in the courts of appeal of all jurisdictions.
More than 2,200 candidates from all over the country (judges, advocates, legal scholars) applied to participate in the competition. However, because of the same political mistake - dismissing the previous composition of the HQCJ, the HQCJ could not even begin the substantive part of the competition. It is possible to predict how much time this competition might take based on the experience gained by the HQCJ in other competitions.
The previous composition of the HQCJ held three competitions according to the procedures which will obviously be used by the new composition of the HQCJ. These are the first and second competitions to the Supreme Court, as well as competitions to the High Anti-Corruption Court (HAAC) and the HAAC Chamber of Appeal. These procedures were carried out on the basis of the QE procedure. However, given the specifics of the competition, in order to win, a candidate needed to show that s/he is better than other candidates.
The work of the HQCJ as to holding the first competition for the new Supreme Court lasted about eight months. To this time, we must add the procedure for the final adoption of the decision by the High Council of Justice provided for by the Constitution and the law, as well as the issuance of a Decree by the President, and, if necessary, taking the oath by candidates who were not judges before the competition - extra 3-4 months.
Given the peculiarities of the procedure for holding competitions determined by the HQCJ in law and local regulations, it can be surely states that during such a competition, the HQCJ will virtually be unable to deal with other procedures, except for very simple ones (for example, seconding judges to courts where there are some problems). Thus, it is clear that it will take at least 12-14 months to fill vacancies in the courts of appeal. And this will be so provided the HQCJ is promptly formed, which will also take additional - optimistically three, but realistically up to six months given, for example, how competition procedure is carried out for the Specialized Anti-Corruption Prosecutor's Office.
Therefore, it may be possible to finally make the courts of appeal operational in the first half of 2023. That is the price of political mistakes.
For reference: a total of 49 lawsuits were filed during and after the first competition with to new Supreme Court. None of the disputes resulted in the competition being stopped or cancelled.
What are the risks of a new selection of judges?
Another major procedure that the HQCJ must begin and complete without delay is the new selection of judges which should fill approximately 2,000 vacancies in local courts (first instance). Here is how it used to be done.
By the decision of the Commission dated April 3, 2017, there was selection of candidates for the position of a judge of a local court announced. In 2017, 5,339 people applied to the HQCJ to participate in the selection procedure. The figure is stunning. At the same time, 4,935 people were admitted to the stage of qualification examination. Such was the interest of Ukrainian lawyers and such was the confidence in the integrity of the HQCJ procedures. 700 candidates with the highest scores went on to study at the National School of Judges.
For candidates who successfully passed the final qualification exam, a competition to fill 505 vacant positions of judges in local general courts was announced by the decision of the Commission dated July 2, 2019.
On 07 August 2019, the rating of participants in the said competition was approved by decision of the Commission and, on 09 August 2019, respective recommendations on appointing 467 candidates as judges were sent to the High Council of Justice.
In 2020, 583 case files on the appointment of candidates for the positions of judges were submitted for consideration of the High Council of Justice: 544 case files were fully considered (similarly, 544 case files in 2019). These were the case files sent by the HQCJ based on the results of the selection and competition in 2019, as well as previous procedures.
It is illustrative that in the first half of 2021, the case files on the appointment of judges considered by the HCJ turned from a full-flowing river into a stream which almost completely dried up by mid-summer. During the first half of 2021, the High Council of Justice decided to submit a proposal to the President of Ukraine on the appointment of only (!) 35 judges of local courts.
And this is not because the HCJ is unwilling to work, but because the case files sent by the HQCJ, which operation was terminated in November 2019, have almost run out. In the two years that have passed since then, not a single candidate for the position of a judge has been trained.
The key risk of the next selection (apart from the uncertainty when the new composition of the HQCJ will start working) is the above-described fact that the HQCJ's hand will be full with other procedures.
There should also be recalled the difference between the selection procedure and, for example, QE procedure. On the one hand, there are no interviews of candidates with the HQCJ, and on the other hand, they must study at the National School of Judges which lasts from three months (for assistant judges) to one year - for all other candidates. In my opinion, training for candidates who are assistant judges and lawyers working in the judiciary can be reasonably reduced to 2-4 weeks. These lawyers, with 3-5 years of professional experience, are already in a position to work in the courtroom.
Minor amendments to the legislation will optimize the timing of this procedure, making it 6-9 months instead of 3-7 years as it used to be before. Of course, if the whole procedure is not blocked again by filing lawsuits, as it was in 2019-2020.
Thus, the urgent procedures by the new composition of the HQCJ will take from 8 to 18 months (optimistic scenario) from the moment the required majority of the members of the HQCJ start working. If no one interferes with the HQCJ.
There is no time for a slow start. Time for deliberations run out a year ago.
Read this article by Sergii Koziakov at in Russian and Ukrainian.