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29 May 2018, 16:57

Six myths about the qualification evaluation of judges in Ukraine

Yurydychna Gazeta

Myths about the judges and their qualification evaluation are dangerous because they may take off the faith of the public in their country; especially as regards such an important sphere as justice.

We have compiled some distortions of facts that are common in the public space. We refute manipulations that undermine the understanding, by a person with no legal background, of professional processes that have been taking place in the justice sector, using as an example the judicial qualification evaluation.

Myth 1. Qualification evaluation is a “conveyor”. Over 5000 judges are planned for assessment within several months

True. The procedure for evaluating the first thousand judges (999 people) started on October 20 and has lasted for seven months – until May 23, 2018. The HQCJ has formed judicial dossiers regarding all those judges that are available on its official website; the judges have passed psychological tests, interviews with psychologists, anonymous written tests, and a practical task. Those who succeeded the examination and did not resign have been passing interviews with the HQCJ members that are broadcasted online. The evaluation of 1780 judges started in February 2018 and should be completed by the end of summer 2018.

For one judge to undergo all stages of evaluation, the HQCJ spends 24 working hours (almost 3 working days).

Myth 2. The HQCJ made unlawful amendments to the Rules of Procedure to limit the scope of powers of the PIC

True. With the purposes of improvement of the qualification evaluation process, the Commission decided to amend its own Rules, in particular, with regard to the formalization of documents submitted. However, only court may decide on whether such amendments are lawful or unlawful. The court proceeding is still not over, so speaking publicly about the unlawfulness of the amendments is a manipulation of public opinion. The judges under evaluation have been submitting their documents being abide by the rules developed by the HQCJ. The same principle in following the rules was also proposed by the HQCJU to the PIC members, as well. They included the following:

  • Information shall be submitted to the HQCJ in advance, 10 days prior to the interview;
  • Documents submitted shall be signed by all PIC members who have adopted them;
  • Judges shall have the possibility to explain the facts detected by the PIC.

As for signatures, this is a normal practice in record keeping. For example, an audit certificate without a signature and a full name of the auditor(s) is null and void. That is why it seems reasonable to have all documents submitted to the body which is in charge of the qualification evaluation and is responsible for the outputs of such evaluation before the law, properly signed; this also means that all members of the public body are committed and conscious of their responsibility.

The joint Report of the Council of Europe (CoE) and the Ukrainian Bar Association on the Results of Monitoring of the Activities of the Public Integrity Council states that the latter, when drafting their opinions on candidate to Supreme Court justices, violated the principle of independence of the judiciary. That was the reason why the PIC should develop and approve its own methodology for collecting and verifying information about judicial candidates.

The ultimate decision regarding the HQCJ Rules of Procedure will be made by court, thus, it is not appropriate to state that “the Rules are unlawful, and the PIC’s scope of power has been limited”.

Myth 3. The Commission ignores the PIC’s opinions

True: The HQCJ states that each PIC’s opinion is taken into account – even those materials that have been submitted with significant inaccuracies. Instead, the PIC refused to comply with the function assigned to them by the Law “On the Judiciary and Status of Judges”, which is to assist the HQCJ in conducting the judicial qualification evaluation. However, as it may be viewed at the HQCJ Youtube channel, where judicial interviews have been streamed, the HQCJ takes into account open information regarding judges provided by public organizations. This is evidenced by the fact that 20 judges failed their interviews before the HCQJ, while the PIC gave the opinions regarding only 3 of them. Thus, the analysis of the interview shows that the HCQJ not only takes into account the information contained in the findings of the PIC, but also takes into account other information on judges coming from authorized state bodies, as well as from representatives of public organizations and individuals.

Myth 4. The HQCJ prevents PIC members from free access to the candidates’ dossiers

True. All judicial dossiers are available on the HQCJ’s website at www.vkksu.gov.ua, and anyone can read them. Only personal information is hidden, that is, the information that would allow identifying a person directly or indirectly: place of residence, identification number, date of birth, etc.

Paragraphs 7 and 8 of Article 85 of the Law “On the Judiciary and the Status of Judges” state it clearly that full and direct access to judicial dossiers is granted only to the members and authorized staff of the HQCJ, the State Judicial Administration, and the High Council of Justice.

Myth 5. Evaluation procedures are not transparent

True. The judicial evaluation process is streamed online. The experts keep saying that such openness is a novelty even for European jurisdictions.

  1. The anonymous test is checked by the computer, and the result is disclosed to judges on the day of examination.
  2. The practical tasks are checked following the professionally developed algorithm in panels of four HQCJ members. Each auditor sees the encoded work only twice. It disappears from the screens immediately after being scored, which excludes any possibility of having access to it later. The HQCJ evaluates and scores in accordance with the approved methodology. The scoring system is the same as during the Supreme Court competition. However, the minimum passing scores for judges are 670 out of 1000. In particular, judges can receive the following maximum scores: competence – 500 points; professional ethics – 250 points; integrity – 250 points.
  3. All interviews are public and streamed online on the HQCJ official website. Besides, anyone can review the records later on.

Myth 6. Judges of the Euromaidan pass successfully the evaluation procedures.

True. As of May 22, 20 judges have failed their interviews before the HQCJ, including 4 judges adjudicated against the Maidan protesters, and those who failed to prove the legality of their assets. In addition, 37 judges failed the examination – anonymous testing or practical task. All 57 judges, as prescribed in the assessment methodology, will be recommended for dismissal. It is important to understand that the assessment is not aimed to dismiss all judges, but to check their compliance based on the criteria of competence, ethics, and integrity. For the first time in Ukraine, the whole judicial corps is being evaluated together, some 2500 judges having resigned on their own initiative.

Therefore, it is inappropriate to set the limitations and number of judges failed the evaluation as an indicator of the effectiveness of the evaluation process. The evaluation is undergone by experienced professionals who will further appeal against negative decisions regarding their careers before courts. The evaluation is conducted by no less experienced professionals who are responsible for every decision they make and understand the degree of responsibility for the approved results.

Despite how complicated it may be to substantiate, at least four judges who adjudicated at the time of the Maidan have not passed the evaluation and will be recommended for dismissal. Among them, there is a judge of the Shevchenkivskyi District Court of Kyiv Olena Radchikova from the Lustration List of Euromaidan. She issued decisions on the arrest of suspects in organizing massive riots in Kyiv in December 2013, while actually those people were public activists beaten up by the “Berkut”.

A similar decision was issued by another judge of the Shevchenkivskyi district court of Kyiv Valentyna Malinovska, who has also been put on the Maidan Lustration List. She failed the evaluation due to the issuance of the decision to take in custody a person accused of organizing massive riots in Kyiv in 2013, who was actually beaten by the “Berkut”. The Public Integrity Council did not provide any opinion regarding either of them.

In the meantime, the Public Integrity Council submitted an opinion regarding a judge of the Kyiv District Administrative Court, Bohdan Sanin, who issued a decision restricting the possibility of peaceful assembles on Maidan, Khreshchatyk, and central streets of Kyiv for the period from December 1, 2013 to January 7, 2014. He was also recognized by the HQCJ as incompliant.

A judge of the Zhovtnevyi district court of the city of Mariupol, Donetsk region, Oleksii Turchenko failed to pass the Supreme Court competition in 2017, as of now the HQCJ refused him in continuation his judicial career. Among others, the judge released Volodymyr Nesterenko who was suspected in separatism financing. According to “Chesno. Filter the Court”, Nesterenko owned the printing company where newspapers campaigning for the Donetsk People’s Republic and against the territorial integrity of Ukraine were printed.

It is likely that judges who failed to confirm their compliance will appeal the respective decisions in courts.

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