The law 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 (paragraph two of item 4 of chapter II “Final and transitional provisions” of the Law of Ukraine of July 14, 2021, No. 1635-IX).
The Constitution of Ukraine stipulates the general conditions, according to which, the High Council of Justice is plenipotentiary, meaning authorized to perform powers determined by the Constitution and laws of Ukraine, namely: availability of at least fifteen elected (appointed) 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 Ethics Council announced the competition on 5 vacant positions of members of the High Council of Justice. By the decision of the Ethics Council of January 12, 2022, the dates of interviews with candidates to the position of member of the High Council of Justice were determined, starting from January 31 this year.
Although, by the decision of January 26, 2022, No. 3 the Ethics Council has changed the dates of interviews with candidates to position of member of the High Council of Justice. According to the new dates, the interviews will begin on February 21, 2022, and will end on March 3, 2022. At the same time, the evaluation of current members of the Council, according to the Rules of Procedure of the Ethics Council, will start not later than February 8, 2022.
The High Council of Justice repeatedly expresses its position regarding the unconstitutionality of powers of the Ethics Council, including the powers regarding evaluation of current HCJ members. Such position is consistent, supported by the Plenum of the Supreme Court, by the constitution submission of which, the Constitutional Court of Ukraine has opened the constitutional proceeding (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.
Non-compliance by the Ethics Council with the requirements of the law concerning the procedure and priority of evaluation, which could give the opportunity to fill, first of all, vacant positions of HCJ members, will lead to violation of the principle of continuous functioning of the High Council of Justice – body which is empowered with key, fundamental powers in the sphere of the judiciary.