21st of January will mark exactly one year since the auxiliary body of the High Council of Justice – the Selection Commission where three Ukrainian and three international experts on the basis of the open competition select candidates to the judiciary’s main recruitment agency – High Qualification Commission of Judges of Ukraine.
This long name, abbreviated as "HQCJ", has long been known not only to lawyers, as the formation of this body in an open and transparent competition is one of the conditions for Ukraine's full accession to the European Union.
Next, the newly elected HQCJ faces an extremely ambitious, but necessary for the Ukrainian society task - to fill the judicial system with honest and professional young judges who will become a positive driving force that will change the Ukrainian judiciary. It is up to this body to solve the problem of personnel hunger in Ukrainian courts.
Approximately 2500 unfilled judicial vacancies is a lot, almost 40% of the total number of judges.
In 2019, the powers of the previous HQCJ were terminated without transferring its functions to any other body. Since then, no judge in Ukraine can be appointed or transferred to another court.
In my opinion, the termination of the powers of the former HQCJ without transferring these functions to another body (or without introducing a transitional period) was an extremely short-sighted decision. Confucius said that the only real mistake is not to correct your previous mistakes. I hope that this bitter experience will be useful and such a precedent will not happen again.
About the terms of the competition
The long absence of the HQCJ imposes strict limits on the activities of the Competition Commission. Since the beginning of the Commission's work, the most popular question has been and remains this one: "When will there be a new HQCJ?".
The Selection Commission is fully responsible for its own work process, but please keep in mind that we do not and cannot bear responsibility for political steps with unpredictable consequences. However, understanding the importance of deadlines, we will not compromise on the quality of the competition we conduct.
When the full-scale Russian invasion began, we suspended our work. Back in the summer, there were opinions that we should not resume the work of the Commission, instead we should look for alternative ways to overcome the staff shortage and other problems caused by the absence of the HQCJ.
When I learned about such initiatives, I remembered a famous saying of Henry Louis Mencken, who said that every problem has at least one simple, convenient and, obviously, wrong solution. In my opinion, such a solution would be to introduce an alternative. That is why the resumption of the work of the Selection Commission has become, on the contrary, a difficult, yet totally correct option for the development of events. Any other way would negate the positive achievements that we already have on this path. And we do have them.
Despite the war, the occupied territories and many logistical problems, we have received full packages of documents from 301 lawyers to participate in the contest. This means trust in the Selection Commission and its procedures and the desire to change the judiciary in Ukraine for the better.
The commissioners analyzed almost 14 000 documents, spent hundreds of hours in discussions and debates, evaluating candidates according to a pre-approved methodology. As a result, the Commission invited 64 candidates, with whom in January and February will conduct public interviews that will be broadcast on YouTube in real time. If everything goes according to plan, we will be able to recommend 32 best candidates for 16 vacant positions in the HQCJ in March this year.
The first competition to use the principle of positive selection
After publishing the list of 64 candidates invited for an interview, some candidates who did not receive such an invitation, asked in social media the questions "Why was I not invited for an interview, and he/she/they were invited?", "Will I get conclusions with the reasons for rejecting me?"
The question is fundamentally clear. Let's start from the beginning. For the first time in the history of judicial competitions, our Selection Commission applies the principle of positive selection. In practice, this means that a candidate who does not pass to the next stage does not receive any negative conclusion, and therefore does not risk his/her own reputation by deciding to participate in the competition.
The Commission acts in the same way as the HR of any company: it invites the best, in our opinion, to the second stage - an interview. In other words, the Selection Commission does not sift candidates looking for the negative but chooses the best ones focusing on the positive aspects. It is really a matter of emphasis and way of thinking: "who among the candidates will be the best member of the HQCJ" as opposed to: "who in no way can apply for this position".
From the very beginning of my work, I personally defended the idea of positive selection and the absence of negative conclusions, although this issue was extremely controversial. The consequences of a negative decision on a candidate are perceived by me as destructive, since such candidate’s reputation will be "marred", which will obviously affect their further professional and career life.
Sometimes it is difficult to abandon models and patterns that have already become a habit. After all, the Selection Commission was able to change this trend, which I think is absolutely the right decision and I invite everyone to join the positive experience.
Members of the Selection Commission reviewed the documents submitted by the candidates, information from the NABU and NAPC, references from civil society and information from open sources, and discussed each candidate. Some were shortlisted for interviews, some were not. Of course, it is impossible to avoid subjectivity, since six different members of the Commission are lawyers with completely different life and professional experience. But at the same time, the decision on 64 candidates invited for an interview is based on many hours of discussions of documents and study of information.
Understanding the disappointment of those candidates who were not invited to the interview, I am still convinced that participation in the competition gave them the opportunity to reflect on their own career and professional path and gain valuable experience that will be useful to them in the future.
Judicial reform as a mandatory element of EU integration
The continuation of the judicial reform, which began in 2016 and continued from 2021, is one of the steps that Ukraine must take to become a full-fledged member of the European Union. In the entire history of Ukraine’s independence, this reform is the most ambitious one and has now acquired, without exaggeration, historical significance.
The reform envisages the formation of the High Council of Justice and the High Qualification Commission of Judges of Ukraine on the basis of open and transparent competitions involving independent international experts.
It is important that international experts have a decisive vote in this process. Looking from the inside of the competitive selection process, as a person who has passed the competition myself, I can tell all doubters that the participation of foreign experts in the competitive process is a huge advantage, which has already been proven by a year of our joint work.
The synergy of experience and different approaches helped us as members of the Commission to find universal principles and approaches that are used in any adequate country in the world. In addition, I personally admire the dedication and energy of our international colleagues. The law states that all our procedures must be public and transparent. Even now, during the war, we stick to this principle.
Next step - interviews with candidates
We start interviews with candidates in mid-January. All of them will be broadcast on the YouTube channels of the Selection Commission and High Council of Justice and anyone will be able to watch them in real time.
I considered and still consider it a mistake to conduct closed interviews in any competitive procedures, although this is a difficult discussion, and advocates of the opposite approach have worthy arguments. My main idea is that the procedure, the process, is the simple mechanism from which the great philosophical category of the rule of law stems.
The society should be able to watch the selection process as closed nature brings to naught even the best practices and achievements.
The Selection Commission will conduct interviews en banc and there will be two main moderators of each interview - one Ukrainian, one international, and the candidates will be distributed between them on the principle of contingency. All these complexities, which I may not be describing very clearly, are intended to achieve two goals:
- make sure candidates who start first do not feel that it was much more difficult for them than for the candidates who will finish the interviews (and vice versa);
- reduce in the eyes of an outside observer to zero any idea that any member of the Commission has "their" or "favorite" candidates to whom they are more inclined.
The interviews will last up to 90 minutes and no less than 60 minutes, moderators will monitor the time and duration of answers, simultaneous translation will be provided, each candidate will have the opportunity to introduce themselves and talk about the ideas and motivation for participation in the competition.
I hope everyone will be interested to watch the interview process. I am sure that each of the candidates invited to the interviews is an interesting and deep personality whose thoughts and ideas are worth listening to.
This is the first competition with such approaches and practices in Ukraine, and I sincerely hope that its experience will be useful for all subsequent competitions and commissions. I am convinced that the future belongs to a positive approach. I wish everyone a victorious new year in every sense. Glory to Ukraine!
Ivan Mishchenko, Supreme Court justice, Chairman of the Selection Commission for the selection of candidates for the position of a member of the High Qualification Commission of Judges of Ukraine