On February 9, 2022, the Ethics Council initiated simultaneous evaluation of 14 current members of the High Council of Justice
At the same time, the evaluation of candidates for vacant positions by the Ethics Council has not begun – the Ethics Council has changed the previously scheduled dates for interviews with candidates, setting a new schedule so as to first evaluate the current members of the HCJ.
This approach does not meet the requirements of the Law of Ukraine No. 1635-IX dated July 14, 2021, item 4 of Section II “Final and Transitional Provisions” which provides that the procedure and priority of evaluation the compliance of current members and candidates for members of the High Council of Justice with criteria of professional ethics and integrity are determined by the Ethics Council, taking into account the possibility of performing powers by the High Council of Justice according to the Constitution of Ukraine.
In turn, the possibility to perform powers by the High Council of Justice in accordance with the Constitution of Ukraine is due to availability of at least fifteen elected (appointed) the HCJ members, among whom the majority are judges (Article 131).
As of today, the Council’s competency is on the brink.
Composition of the High Council of Justice consists of 15 members, 6 vacant positions of Councils’ members are not fulfilled.
The High Council of Justice publicly and consistently held the position that certain changes introduced by Law No. 1635-IX were implemented in a way that cannot be considered acceptable, primarily because of its inconsistency with the Basic Law and established international standards in the field of justice, in particular in the matter of formation of the Ethics Council, its powers and determination of the decision-making procedure.
This position was supported by the Plenum of the Supreme Court on the constitutional petition of which the Constitutional Court of Ukraine launched constitutional proceedings (ruling of November 3, 2021 No. 165-1 (I) 2021).
In its submission the Plenum of the Supreme Court emphasized on inadmissibility of breaking the principle of institutional continuity of functioning of the HCJ, inadmissibility of re-evaluation of HCJ members, who are judges and have already passed the relevant evaluation, inadmissibility of dismissal of the HCJ members by law, violation of the balance in the determined by law procedure of making decisions by the Ethics Council (when the will of the representatives of international organizations prevails over the will of the members of the Ethics Council from among the judges or retired judges appointed by the Council of Judges of Ukraine), which, in turn, violates the principle of independence of judges, regulated by Article 126 of the Constitution of Ukraine.
Position of the HCJ members that the powers of the Ethics Council do not have a constitutional basis was covered earlier in numerous acts of the HCJ (advisory opinions of the Council on a number of draft laws – No. 1008, No. 2536, No. 2712, No. 3534, No. 3711-1, No. 3711-2 , No. 4135, No. 5068, No. 5836, draft laws sent by the Ministry of Justice, in the HCJ decision “On approval of the position on the constitutional petition of the Supreme Court regarding the constitutionality of the provisions of Law No. 193-IX”, in decision “On approval of the Clarifications of the High Council of Justice of the case on the constitutional petition of the Supreme Court” etc).
This position, in addition to the current constitutional and legal regulation, is also supported by the decision of the Constitutional Court of March 11, 2020 No. 4-p/2020, which recognized as unconstitutional the provision on establishment of the Commission on Integrity and Ethics, which was authorized to hold evaluation of the compliance of current members and candidates for members of the High Council of Justice, judges of the Supreme Court with criteria of integrity and professional ethics.
Under such circumstances, the members of the High Council of Justice, who adopted the above-mentioned acts, consider it unacceptable for themselves to participate in the evaluation procedures initiated by the Ethics Council.
Given that despite the critical limit of the HCJ’s plenipotentiary and contrary to the imperative requirements of the law, the Ethics Council initiated such procedures primarily for all current members of the HCJ at once; this forces the majority of the members of the HCJ to early resignation.
We believe that such an approach on the part of the Ethics Council has no legitimate purpose, as it results a violation of the principle of institutional continuity of the High Council of Justice.