article by SERGII KOZIAKOV, PhD (International Law),
Institute of International Relations at Taras Shevchenko National University of Kyiv
Discussions about involving foreign experts in staff procedures have escalated in political circles and the judiciary of Ukraine. This is about the bodies of the judiciary, in particular about draft law No. 5068 on competitive selection and checking integrity of members of the High Council of Justice (HCJ).
As far as the rule on forming the Ethical Council of the HCJ is concerned, the authors of the draft law initially tried to act creatively as to the Venice Commission recommendations, balancing the votes of Ukrainian and foreign members of the Council. This has given rise to tensions with the diplomatic corps of partner countries and representatives of the International Monetary Fund.
Meanwhile, there already exist examples of staff procedures with the participation of international experts in the law enforcement system and the judiciary recognized as successful both abroad and domestically. In addition to NABU and SAPO, this is the High Anti-Corruption Court of Ukraine (HAAC) formed at the beginning of 2019. Due to various, including political, reasons it started functioning only in the fall of 2019.
However, given that unversed people often actively participate in discussions that have already given rise to many myths about the role of international experts, it is worth explaining the history of this case. Moreover, I was most directly related to forming HAAC.
From total non-transparency to in-depth reform
From 1991 to 2010, all staff procedures took place behind the doors of the offices of the executive, legislative and judiciary authorities, which created opportunities for influencing specific judges, subsequently leading to corruption.
Some elements of transparency in staff procedures came about only in December 2014, when the new – post-Maidan – composition of the High Qualification Commission of Judges of Ukraine (HQCJ) first published the list of vacancies in courts across the whole country.
And, after at the beginning of 2015, the Law "On ensuring the Right to a Fair Trial" was adopted for initial qualification evaluation, following consultations with the Council of Judges of Ukraine, HQCJ for the first time approved the criteria for evaluating a judge as a professional. It included compliance with ethical and "anti-corruption" criteria. As a result, the 2016 judicial reform made staff selection procedures in the judiciary one of the most transparent in global practice.
New developments as to introducing first transparency measures in staff procedures applied by the HQCJ became one of the decisive factors leading to mass dismissals and resignations of judges in summer and early fall of 2016.
The total number of judges dismissed by the High Council of Justice (HCJ) in 2016 was 1519 (2015 – 465, 2013 – 243, 2010 – 368). Of these, 1449 resigned (increased by 300% compared to 2015).
The Law "On the Judiciary and the Status of Judges" adopted in 2016 for implementing Constitutional reform in part related to justice provided for qualification evaluation of judges to be conducted. As a result, representatives of the public gained a significant role in selecting judges. Non-governmental organizations delegated representatives to the Public Integrity Council (PIC) to assist HQCJ in conducting qualification evaluation for compliance with the position held and in competitive procedures.
Subsequently, national, European and American experts both positively and critically assessed the role of the PIC. There were a lot of excesses. Nevertheless, international experts evaluated HQCJ's innovative staff practice that is useful for application in other countries both in terms of qualification assessment procedure in general and the first open competition to the Supreme Court, which became the most ambitious HR project in global practice.
Even then, such general positive conclusions were already dramatically different from the critical remarks of professional Ukrainian public. Without thorough comparison with the national practice of the past, based on a simplified and often openly populist understanding of the most ambitious staff procedures in the judiciary, HQCJ was mercilessly criticized. However, it was the conclusions of the international partners that helped to launch the next important staff project – the competition to the High Anti-Corruption Court.
Involving international experts
After reasonably lengthy and meaningful discussions with international partners from the EU, the US and the IMF, Ukraine made a political decision followed by the Law on the High Anti-Corruption Court (HACC) adopted on June 7, 2018. The condition for holding the competition to HAAC in accordance with the law was the formation of the Public Council of International Experts (PCIE).
The PCIE was formed to assist the HQCJ "in establishing that candidates for the positions of judges of the High Anti-Corruption Court meet the criteria of integrity (morality, honesty, incorruptibility)." It was about the legality of the sources of origin of the property, the fact that the standard of life of the candidate or his/her family members meets the income declared, that the candidate's lifestyle meets his/her status, that he/she has knowledge and practical skills required to consider cases falling under the jurisdiction of HAAC.
At the same time, the law entrusted the PCIE a significant role in qualification evaluation procedure, which since 2016 has been the basis for any type of competitive procedures for the position of a judge.
Thus, on the initiative of at least three (out of six) PCIE members, the issue whether any candidate for the position of HAAC judge meets integrity criteria was considered at a special joint meeting of the HQCJ and PCIE. A joint decision on whether such a candidate meets these criteria was taken by the majority of the total composition of the HQCJ and PCIE members, provided that at least half of the PCIE members voted for it. If such a decision was not made, the candidate was considered to have terminated his/her participation in the competition. That is, with such a selection mechanism, international experts had a decisive vote.
Even then, there appeared remarks about preserving maximum independence of the judiciary in making staff decisions during competition to HAAC, including from external forces.
It is important to say here that in its opinion of October 6-7, 2017, the Venice Commission (VC) reassured those doubting about international experts participating and observance of the principle of state sovereignty of Ukraine. In short, the Venice Commission recalled that involving foreigners in competition commissions for anti-corruption bodies is not a new phenomenon for Ukraine. There was such practice already in place, in particular for the selection of heads of SAPO and NABU.
According to VC, involving foreigners is justified given current peculiar situation in Ukraine, of course, subject to respecting for the principle of state sovereignty of Ukraine. As well as maximum transparency of the expert selection procedure.
Mechanism for selecting international experts
In late summer 2018, HQCJ reached out to the Ministry of Foreign Affairs to assist in communicating with international organizations in order to obtain a list of candidates for the PCIE positions. As early as on September 19, 2018, international institutions provided us with materials of 12 candidates for the positions of PCIE members.
HQCJ members conducted Skype interviews with all candidates. Each interview lasted at least an hour; candidates answered numerous questions about professional experience and asked counter-questions HQCJ members. For the members of the HQCJ, an important factor in deciding on the selection of a candidate was his/her willingness to devote as much time as necessary to work in the competitive procedure.
On November 6, HQCJ took a decision to appoint six PCIE members.
PCIE consisted of: retired judge Anthony Hooper who became PCIE chair, retired prosecutor Lorna Harris (UK), retired judge Ted Zarzeczny (Canada), retired ECHR judge Mirjana Lazarova-Trajkovska (North Macedonia), retired prosecutor Flemming Denker (Denmark), judge Aurelijus Gutauskaus (Lithuania).
All regulations for conducting staff procedures in the judiciary of Ukraine, including competitions to HAAC were adopted by the HQCJ itself, as provided by law. Another peculiarity of the situation was that simultaneously with the competition to HAAC, the Commission also held the second competition to the Supreme Court. (The SC case is a story requiring separate consideration. The same goes with the reasons for the dissolution of HQCJ).
Competition to HAAC rules of the game for judicial candidates
343 candidates submitted documents to participate in the competition. 270 people were admitted to participate in the competition. 156 applicants passed the tests successfully. 113 people scored the minimum score required to participate in the second stage of the competition. About 42,000 pages of candidate dossiers were made public on the HQCJ website. More than 1,200 tests and 15 case studies were prepared.
The HQCJ and PCIE members (judges, prosecutors, lawyers, academia) who participated in the competitive selection had the necessary knowledge and experience. All that was left to do was to achieve the greatest trust between strangers in the shortest time possible. Realizing that PCIE members can be "loaded" not only with reliable information, HQCJ has made efforts to communicate as open and frank as possible on all sensitive issues. As meticulously as necessary the parties reached agreement on the same understanding of the criteria for evaluating candidates, in particular, the criterion of integrity.
Working together for four months, 18 hours a day under video cameras without weekends, examining 42 thousand pages of candidate dossiers, interviewing hundreds of candidates, mutual tolerance for natural human failings and exactingness to professionalism. It was a completely normal mode for all participating in those events.
As a result, during joint special meetings of the HQCJ and PCIE, none of the participants ever felt irritation, anger or annoyance. No one took the liberty to make unexpected public statements based on unverified facts. This – the key – procedure was performed flawlessly both from the professional and from the ethical point of view. The sessions were broadcast in Ukrainian and English.
By the end of their work on the joint temporary activity, the HQCJ and PCIE members fully trusted each other.
As a result, out of 113 candidates who participated in the second stage of the competition, the PCIE had concerns about 49 candidates as to integrity criterion. Based on the results of the joint meetings, seven of them with their explanations were able to dispel doubts of the HQCJ and PCIE members about their impeccable integrity. 71 candidates reached the final stage. During the meetings, almost fifteen hundred questions were asked. Most of them were asked by HQCJ members.
On March 6, 2019, HQCJ announced list of competition winners: 27 HAAC judges and 12 HAAC Appeals Chamber judges. The High Council of Justice recommended 27 HAAC judges and 11 HAAC Appeals Chamber judges to the President. The decree on the appointment of judges was issued by President Petro Poroshenko. Without the intervention of the PCIE and international organizations that delegated them.
Leapfrog at the finishing line
At the stage of forming the HAAC, the factor of the presidential election played a positive role: all the main political actors, their sponsors and those seeking to get closer to them were busy with more important, in their opinion, affairs. A perfect situation for staff reform, which was progressing with difficulty but quite confidently within the judiciary. Until February 15, 2019, no one tried to influence the work of HQCJ as to conducting the HAAC competition and the second competition to the Supreme Court. And then it was too late.
In his final weeks in office, President Poroshenko signed a decree appointing HAAC judges and HAAC Appeals Chamber judges. And on September 19, the new President Zelenskyi reported on the launch of HAAC. And today he is awaiting sentences from this court, at the same time successfully mastering the institute of the National Security and Defence Council, which is not quite intended for these purposes.
Assessing the quality of HAAC justice is not the subject matter of this article. But let us pay attention to just two facts. HAAC publishes detailed reports of its work systematically and openly. The full broadcasts of over 600 HAAC sessions so far have been made public on YouTube. Dossiers of judges, their property declarations, as well as declarations of integrity and family ties are in the public domain.
No similar court in any other country demonstrates such level of transparency. This means that our public has much more opportunities to criticize the decisions of HAAC judges in the media, social networks and anonymous telegram channels than critics of anti-corruption courts in other countries. And the disciplinary procedure against HAAC judges, which is carried out by the HCJ, is, unlike other countries, open.
…Thus, currently the competition to the High Anti-Corruption Court held in Ukraine with the participation of international experts in 2018-2019 is the most innovative in terms of using tools for selecting judges in specialized courts. This very competition held by HQCJ became the most transparent compared to other competitions to anti-corruption courts in other countries.
The results of the competition were the more so important because in neighbouring states almost along the entire perimeter of the border (including some Member States of the European Union and NATO), negative trends are mounting in judiciaries. This is confirmed by the latest – dated May 2021 – report of the Secretary General of the Council of Europe.
Nevertheless, two months after the launch of HAAC in connection with the fact that on October 16 the Parliament of Ukraine adopted amendments to the Law of Ukraine "On the Judiciary and the Status of Judges", the powers of the members of the High Qualification Commission of Judges of Ukraine that ensured carrying out this complex – staff – component of forming the HAAC were discontinued. The Moor has done his duty.
The process of selection and appointment of judges has been blocked in Ukraine for two years in a row. Unless decisive managerial measures are taken at the state level, the process of appointing judges, which until recently functioned based on the results of staff procedures by the previous HQCJ composition, may go to nought in 2021. The critical mass of institutional problems accumulated in the HCJ associated with challenges of implementing new large-scale and small-scale powers provided by law and impressive number of complaints against certain individuals require serious changes or even reforming the HCJ.
It is not surprising that our international partners are very persistent in their recommendations to speed up the reform and utilize international experts' experience in staff procedures in the judiciary. Putting away diplomatic flowery language, their fears are based on information from various reliable sources, which has already become public. According to this information, some influential persons opposing the participation of international experts advocate nowhere near observing the principle of sovereignty (which, however, is not violated in any way), but for other – far from transparent – purposes.
Read this piece by Sergii Koziakov at in Russian and Ukrainian.