The meeting was devoted to discussion of the course of judicial reform and finding ways to ensure the institutional continuity of functioning of the constitutional body of judicial governance – the High Council of Justice.
Acting Chairman of the High Council of Justice Viktor Hryshchuk noted that the HCJ is taking all measures to implement judicial reform initiated by the President of Ukraine. He noted that throughout the Council’s existence, a large number of organizational and legal issues have accumulated that require urgent solutions to ensure the stable functioning of the constitutional body.
As is well known, paragraph 4 of Section II “Final and Transitional Provisions” of Law No. 1635-IX 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. However, the same paragraph states that the Ethics Council, within six months from the date of approval of its personal composition shall carry out a one-time evaluation of the compliance of current members of the High Council of Justice.
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. However, by the decision of January 26, 2022, the dates of interviews with candidates were postponed to a later date and evaluation of all 14 current members of the HCJ (except for the President of the Supreme Court) began concurrently. Such actions of the Ethics Council jeopardized the continuity of the work of the HCJ, as the removal of at least one member makes the Council unplenipotentiary.
The HCJ member Svitlana Shelest pointed out that one of the foundations of the constitutional system is the principle of institutional continuity of the work of a state body, however, the Law No. 1635-IX, the provisions of which allow one-tame termination of activities of a public authority exercising constitutional powers, was adopted without taking into account precisely this fundamental basis.
According to her, in the constitutional 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). It is also important that with regard to the first three issues, the Constitutional Court of Ukraine has previously expressed in its decisions.
“The HCJ is consistent regarding the unconstitutionality of the powers of the Ethics Council, its decision-making procedure. This position is unchanged and was expressed in numerous acts of the HCJ, supported by the Plenum of the Supreme Court. The HCJ has repeatedly publicly noted the importance of the continuous functioning of the Council. It seemed that both the authorities and international partners heard this, promising to build further steps in such a way that the goal of judicial reform was achieved without devastating consequences for the judiciary”, she said.
“We also noted that the majority of members of the HCJ consider it unacceptable to be evaluated by the Ethics Council. Since the obvious purpose of the law is to substitute members of the HCJ, then we, understanding this and caring, first of all, for the continuity of the Council's work, were ready to resign at our own will, waiting for the election/appointment of new members of the HCJ. The law allows such a model, subject to the Ethics Council observing the procedure and priority of evaluation, taking into account the possibility of exercising powers by the HCJ. However, the Ethics Council has not demonstrated such intentions”, she said.
Svitlana Shelest emphasized that currently the possibility of further uninterrupted work is made dependent on the decisions and actions of the Ethics Council. After all, the removal of at least one member of the HCJ will result in the termination of the Council's activities due to the lack of a quorum. “The further functioning of the Council in the conditions of such dependence violates the constitutional guarantees for the HCJ members activities that is unacceptable”, she stressed.
According to her, the statement of the Ethics Council that the removal of a member of the HCJ is possible only under the results of the evaluation in the event of a negative conclusion is not perceived by the members of the HCJ as reasoned. According to the Rules of Procedure of the Ethics Council, the latter can take into account the refusal of the HCJ member to cooperate, and in fact this circumstance in itself allows the Ethics Council to take a decision. Absence of a member of the HCJ in an interview, regardless of the reasons, does not prevent the Ethics Council from conducting an evaluation and establishing its non-compliance with the criteria of professional ethics and integrity. In fact, the Rules of Procedure allow completing the evaluation within 7 days. Considering that the evaluation has already started simultaneously for all members of the HCJ (within the threshold limit of authority), blocking its work is possible at any time, that is, it is a matter of several days.
According to Svitlana Shelest, assurances that the law would be implemented without devastating consequences did not justify. Therefore, if the purpose of the law is only to reset the HCJ, the current members will not interfere and are ready to leave office.
The High Council of Justice member Oleh Prudyvus noted that a discussion is currently underway about a possible conflict between the two legislative norms, namely, the uninterrupted functioning of the constitutional body and the six-month-limited period to verify members of the HCJ. However, in his opinion, there is no legislative conflict, since it can arise only if the two norms are equivalent. Herein, a norm has been established that actually implements the constitutional principle of the continuity of the work of a constitutional state body.
“This norm is inherently higher and the norm on the term for verification of current members of the HCJ cannot compete with it, since the latter is derivative. And if it cannot be observed, then the provision guaranteeing the observance of the main constitutional principle is fulfilled”, O. Prudyvus noted.
As O. Prudyvus noted, this situation can be resolved at the level of decisions of the Ethics Council. However, in order to comply with the constitutional principle of the uninterrupted functioning of the constitutional body, the political will of the state is required – the member of the HCJ is convinced.
President of the Supreme Court, a member of the High Council of Justice Vsevolod Kniaziev, in turn, noted that since the adoption of this Law, the Supreme Court has repeatedly stated that all state bodies must ensure their actions in such a way that the authorized composition of the HCJ is maintained permanently.
According to V. Kniaziev, the matter of uninterrupted work of the HCJ has come into sharp focus right now under aggression and possible invasion of troops of another state into Ukraine. He recalled that the HCJ is the highest judicial governance body and in the event of an emergency, it is the HCJ that should take important urgent decisions to retain the functioning of the judiciary during possible hostilities. “These may be issues related to court evacuation, transfer of judges to other courts, redistribution of budgets, change of location of courts, etc. The consent to bring a judge to criminal responsibility, for instance in the event of committing high treason is impossible without the HCJ decision”, V. Kniaziev noted
In his opinion, the lack of a properly functioning the HCJ will lead to the collapse of the judicial system, which will certainly affect the defence capability of our state. He stressed, “I urge the members of the Ethics Council, our international partners to organize their work in such a way as to ensure the continuity of the work of the HCJ”.
V. Kniaziev did not rule out the possibility of making certain legislative decisions to ensure the continuity of the work of the HCJ, finding ways and adjusting the procedure so that uninterrupted work is ensured.
Head of the Council of Judges Bohdan Monich emphasized: “Our position is unchanged – the HCJ must work. We warned that the law is flawed, and there will be problems in its implementation. We were convinced otherwise. I think now is the time to return to the issue of certain point changes in the law in order to ensure the continuity of the work of the HCJ”.
Member of the HCJ Oksana Blazhivska noted that the purpose of the meeting was to reach a compromise deal based on the results of the discussion, which would prevent the suspension of the uninterrupted work of the constitutional body, since, by virtue of the Constitution and the Law, only the HCJ is endowed with a number of powers. To achieve a compromise solution is possible by amending the Law in terms of specified time of preclusion of evaluation period through the application of the “reasonable time” principle; however, the process of legislative changes is more complex and time consuming. Or through the adoption by the Ethics Council of an ad hoc decision to derogate from the provisions of its Rule of Procedure regarding the terms of evaluation or to suspend this procedure for a certain period. “The constitutional principle of continuity of work of the HCJ must be guaranteed, because the HCJ has extremely important exclusive powers that cannot be delegated to any other body”, she stressed.
Serhii Ionushas, the Chairman of the Legal Reform Commission, and Andrii Kostin, the Chairman of the Verkhovna Rada of Ukraine Committee on Legal Policy, invited all interested parties to discuss a proposal to amend the law in order to extend the period of evaluation of current members of the HCJ.