The “rebooted” High Council of Justice has been working for almost three months now. Although there are still vacant positions and some functions are not being fulfilled, most of the issues that had been blocked for almost a year are now being resolved. In particular, progress has been made in the most important issue, which is now in the centre of attention of both the legal community and the general public - the restoration of the work of the High Qualification Commission of Judges of Ukraine.
When can we expect the appointment of the members of the HQCJ? At what stage is the process of launching the service of disciplinary inspectors? Have any processes been initiated in the HCJ regarding collaborating judges? What steps will actually contribute to increasing the authority of justice? These and other questions were answered by the Chairman of the High Council of Justice, Hryhorii Usyk, in the interview with "Law practice" magazine.
— The High Council of Justice has resumed its work after almost a year-long break. What were the top priorities for the High Council of Justice? How do you generally evaluate the first months of the work?
— On January 12, 2023, after the election of eight judges as members of the High Council of Justice, the body has gained authority and since then active work has begun. The first and most important task was to unite the team. Each member of the HCJ came to work in this judiciary body so that this body will become a leader in implementing reforms in the judicial branch of the government in order to restore the trust of citizens to the court.
The majority of the HCJ members are newly elected, so we needed some experience of interaction. Our foreign partners, including the USAID FAIR Justice Project and the EU Project Pravo-Justice, helped us with this. Several strategic sessions were held where experts shared their experience in organizing the work of judicial self-governance bodies, the best world practices.
As for the tasks of the HCJ, they remain unchanged — ensuring the independence of the judiciary, forming an honest and highly professional judicial corps, conducting objective disciplinary proceedings against judges. The judicial system has accumulated many problems that need to be solved by the HCJ together with the authorities and the bodies of judicial self-government. The main mission is to restore trust in the judicial branch of the government through improving the quality of justice, openness and transparency, since without trust in the judiciary, there can be no further development of Ukraine as a democratic state. Among other things, one of the tasks set before our country for EU accession is the resumption of the work of the Higher Qualification Commission of Judges of Ukraine (HQCJ).
Currently, the HCJ is preparing for interviews with candidates for vacant positions of the members of the HQCJ and their subsequent appointment. At this stage of the work of the HCJ, this is a top priority task that we must successfully accomplish, as this issue is crucial not only for the HCJ and the judiciary community, but also for citizens in terms of ensuring their right to access justice. The Qualification Commission will need to fill over two thousand judge vacancies. The existence of such a large number of vacancies directly affects the timeframes for reviewing cases and the quality of judicial decisions.
HCJ also constantly deals with urgent issues of the judicial system, one of which is the secondment of judges to work in other courts where there is a heavy workload for one judge or an insufficient number of judges to dispense justice. This need has become particularly acute due to the war unleashed by the russian federation. In the front-line regions and districts, there is a catastrophic shortage of judges, not to mention the central regions where there are not enough judges because the High Qualification Commission of Judges did not work for a long time and no selection of judges was carried out.
The only unresolved issue to date is the restoration of the procedure of the disciplinary proceedings.
— Tell us more about it, please.
In fact, since 2021, when legislative changes concerning the introduction of the service of disciplinary inspectors were adopted, no one has bothered with this issue. At the same time, the powers conferred by law on disciplinary inspectors are quite significant, as they independently carry out the procedure for preliminary examination of a disciplinary complaint. Currently, a separate structural unit has been created in the Secretariat of the HCJ – the Disciplinary Inspectorate Service. It is necessary to appoint honest and responsible individuals to these positions who have to undergo a competition and appropriate verification.
According to the requirements of the law, persons who have 15 years of experience in the field of law, including at least 8 years of total work experience in the positions of a judge, prosecutor or lawyer can apply for these positions. These should be honest candidates with a high level of professionalism and life experience. However, the material (monetary) supplies for disciplinary inspectors is low which raises the question of whether highly qualified and honest specialists will be interested in working as a disciplinary inspector for a salary of 19,000 uah. In addition, the category of civil servants to which the position of disciplinary inspector is assigned does not provide for the creation of a secretariat in the Disciplinary Inspectorate Service that would assist them in their work which calls into question the possibility of timely and quality examination of complaints at the preparatory stage.
The selection of disciplinary inspectors is complicated by the provision of the law that no competitions are held during the period of martial law. Therefore, there is a risk for the HCJ that questions may arise in the future regarding the transparency of the procedure for appointing disciplinary inspectors. To mitigate these risks, we are actively working with members of the Verkhovna Rada of Ukraine Committee on Legal Policy to propose appropriate changes to the law. These issues have also been discussed with foreign partners, who also have doubts that the Disciplinary Inspectorate Service can be filled with highly qualified specialists under such provisions of the law.
Some members of the HCJ also raised the question of whether a disciplinary inspector can be beyond the control of the member of the HCJ, as the entire procedure, starting with the verification of the disciplinary complaint for its admissibility and up to the conclusion on the presence of grounds for opening or refusing to open a disciplinary case, is carried out by the disciplinary inspector. However, considering that the law distinguishes the powers of disciplinary inspectors and disciplinary chambers, the HCJ members concluded that they do not have the right to interfere with the work of the disciplinary inspector at the stage of preliminary verification of the disciplinary complaint. Practice will show, of course.
— How many disciplinary complaints were accumulated during the time when the HCJ was not authorized? Is it possible to have an accelerated mechanism for their consideration?
— We have roughly estimated that conducting a competition for the positions of the disciplinary inspectors, including all necessary checks and appointments, will take approximately six months or even more. There is a proposal to temporarily confer the authority to carry out preliminary checks of the disciplinary complaints to the members of the HCJ until the Disciplinary Inspectorate Service is created. In fact, this is a temporary return to the disciplinary proceedings procedure that existed before.
Due to March 30, 2023, 8,829 disciplinary complaints were registered in the HCJ. Out of them 7,644 were received by January 12, 2023. Thus, in just two and a half months of work of the HCJ, over a thousand disciplinary complaints were received against the judges. Not everyone knows that the procedure for the disciplinary complaints has changed, so they believe that the HCJ has resumed its work and can consider complaints. However, if we assume that the HCJ will not perform its disciplinary function for another six months, then the number of complaints will accumulate even more. Moreover, the absence of a disciplinary function is similar to the incomplete performance of the constitutional body's powers. This is because it is one of the criteria by which the society will evaluate the work of the HCJ. In the first weeks of its work, we were jokingly told that the HCJ only performs the function of dismissing judges.
— But is this also a rather urgent question?
— Certainly. Due to March 30 of this year, the HCJ dismissed 105 judges on general grounds, of which 96 judges retired and 9 judges were dismissed on their own request.
By the way, in the conversations with the judges, it is evident that they are objectively exhausted from working under such a heavy workload. Today in some appellate courts, the number of judges can be counted on one hand. It is not even possible to form a panel of three judges to consider a criminal case, so judges from the civil chamber have to be involved.
Back in 2021, draft laws were being developed to deal the problem of "five-year judges." Today, there are over 350 such judges who do not do administer justice but are still receiving salaries. There is no benefit neither to the state nor the judicial system from this situation and judges are deprived of the opportunity to continue their careers through no fault of their own. Therefore, the HCJ must ensure the independence of the judiciary. The HCJ provided its advisory conclusions, in which it supported the legislator's proposal for the expediency of temporarily submitting proposals to the President of Ukraine for the appointment of judges who did not pass the full qualification evaluation through no fault of their own. The draft laws provided that after the appointment of the full-fledged members of the HQCJ, this body has 90 days to conduct a qualification evaluation of these judges.
— During the war, a rather loud and resonant issue of collaborating judges arose. Are there appropriate appeals to the HCJ to remove or obtain consent for the arrest of such people?
— No requests from the relevant authorities to the High Council of Justice have been received yet. And I understand why. Indeed there are such resonant cases and they have been covered by the media. But they require the detailed verification. The High Council of Justice, in order to minimize risks when deciding on the dismissal of judges who have resigned, sends requests to the Security Service of Ukraine for information regarding these judges.
— In some courts, the meetings of judges made decisions on the exclusion of judges from the collegiums…
— Yes, to deprive them of the possibility of receiving a salary since such judges do not work, their whereabouts are unknown or it is only known that they are in the occupied territory. The HCJ has no reliable information that they cooperate with the occupation authorities.
The HCJ is deprived of the function of independently initiating consideration of such issues. We can conduct inspections and make decisions about such judges only at the request of the relevant authorities.
— Currently, the issue of launching HQCJ depends entirely on the HCJ. The appropriate methodology has already been approved. Did the decision of the Selection Commission for the selection of members of the HQCJ on not applying the quota principle affect this process? Was there a need to make changes to the methodology or to modernize it?
— That did not affect the development and approval of the methodology in any way. It provides for conducting interviews and selecting candidates regardless of whether the candidate is among judges or retired judges or other applicants. The approach is the same for everyone.
The methodology is based on the principle of positive selection and we have abandoned the point system. The Selection Commission has determined that all 32 candidates for positions of the members of the HQCJ meet the criteria of integrity and professional competence and therefore, based on the results of the interviews, the HCJ will determine which of the recommended candidates will have more advantages based on these criteria, as well as additional criteria provided by the methodology. In other words, we will choose the most worthy among the worthy.
— You mentioned the Ethics Council, its decisions have already been challenged in the courts and there are already relevant conclusions, in particular, of the Grand Chamber of the Supreme Court. If the principle of positive selection is applied, will the candidates have the opportunity to appeal the decision of the HCJ?
— According to the legislation and in accordance with the opinions of the Consultative Council of European Judges (CCJE), any decision can be appealed in court, it is the right of an individual. As for the conclusion of the GC SC, I will not comment on it. There is always someone who is dissatisfied with the results, believing that they have greater advantages or merits than other candidates.
— Please tell us more about the process of the further selection…
— The methodology includes reviewing the candidate's dossier, an interview, as well as studying additional information on the candidates for the position of the HQCJ member that is already being received.
We have to review all the interviews conducted by the Selection Commission in order to understand what questions they have already asked the candidates so as not to repeat them. Based on the available materials in each candidate's dossier, the members of the HCJ will ask additional the questions which were left out of attention by the Selection Commission, or clarify information that the candidates provided incomplete answers to or find out the circumstances that raise doubts or questions that have arisen after receiving the HCJ additional information, including from open sources.
— In what way will the decisions be made: separately for each candidate or will it be an only decision?
— Currently, the members of the HCJ are still discussing this issue. There is a proposal to have a unified decision regarding the candidates, both for those who are believed to deserve appointment and for those who have fewer advantages. However this issue is still under discussion.
— A discussion was held regarding non-application of the quota principle by the Selection Commission. Given the fact that the HQCJ will acquire powers only if there are a certain number of representatives of the judiciary in its composition, what is the probability that the HCJ will choose exactly 8 judges out of 10 recommended candidates?
— The Selection Commission has voiced its interpretation of the law. Many specialists and experts agree that this interpretation is correct. However, at a briefing, I expressed my position, different from the one given above. This is a question about the quality of the law, which allows it to be interpreted in the different ways.
In any case, it will be a decision of the collegial body. I can definitely say that the members of the HCJ are focused on forming this body as soon as possible and resuming its work.
— Does the procedure for selecting the members of the HQCJ require legislative clarification in the future? In particular, regarding the consideration of the "quota principle".
— I think so. I believe that it is necessary to more clearly state the Articles 95 and 95-1 of the Law of Ukraine "On the Judiciary and the Status of Judges" in order to exclude different interpretations of the provisions of these norms regarding the selection of candidates for the position of a member of the HQCJ based on at least two candidates for one vacant position. The law must be clear, understandable, and predictable.
— What are the time prospects for launching the HQCJ?
— As I have already mentioned, there has been an automatic distribution of materials sent to us by the Selection Commission among the members of the HCJ. The HCJ Secretariat needs time to compile a dossier for each candidate and for the members of the HCJ to study them. The methodology provides that the candidates must be informed of the interview with them at least 10 days in advance. If this is done in the shortest possible time, we plan to start interviewing candidates for the HQCJ members in early May. They will last for about 90 minutes for each candidate. We will approximately listen to four candidates per day.
Then there will be a discussion of the candidates and the preparation of a motivated decision, which will take at least a week. We have only received a protocol with a list of candidates, materials, and additional recommendations regarding each of the candidates from the Selection Commission. Regarding the criticism from some public organizations and their activists about the closed nature of the interview procedure, I would like to inform you that this does not correspond to reality. Section 4.2 of the Methodology provided that direct video broadcasting is not carried out to ensure exclusively equal conditions for all candidates who are interviewed on different days. It was envisaged that the HCJ publishes the video recordings of the interviews on the Council's official website immediately after the completion of all interviews and before the decision to appoint members of the HQCJ. So, the day after the interviews were finished, and before the HCJ's decision on the appointment of members of the HQCJ, which would take at least a week, all interested parties had the opportunity to familiarize themselves with the video recordings of the interviews. So what was the confidentiality of the interview process? All candidates would be in equal conditions, and all interested parties could review the interview recordings before the announcement of the results and appointment of candidates to the positions of HQCJ members by the HCJ.
On the other hand, as can be seen from the publications in the mass media, some public organizations have perceived point 4.2 of the Methodology, which states that direct broadcasts of the interviews are not carried out, as an attempt by the HCJ to conceal the interview procedure from society, which, in their opinion, will allow the appointment of less worthy candidates. The need for broadcasting has found support in society, and G7 ambassadors have also called for the openness of the interview process.
In order to prevent any doubts that the HCJ is open to society and operates transparently, the decision of the HCJ dated April 13, 2013, introduced changes to the Methodology, namely the third paragraph of the clause 4.2 is set out as follows: "The HCJ conducts live broadcasts of the interviews with the candidates and publishes video recordings of the interviews on the official website of the Council immediately after the interview with the candidate is completed."
— And when do you expect to reach a final decision?
— It is difficult to predict the exact date of the final decision. However, we are aiming to announce the decision around the twentieth of May.
— That is by early summer? They said about longer scenarios…
— These are the plans. On the contrary, there were versions that we would already form the HQCJ in mid-April. But this is unrealistic.
We cannot delay the decision-making process regarding the appointment of the members to the HQCJ any longer. The members of the HCJ understand the importance of this issue both for the judiciary and for the state of Ukraine in general, which is on the verge of being accepted into the European Union.
— You have already mentioned the legislative work. Is there an effective mechanism for providing the HCJ with advisory opinions on draft laws? Perhaps the judiciary, for example, in the person of the HCJ, should be given the right of the legislative initiative in matters related to improving or increasing the efficiency of the judicial system?
— The CCJE does not require that the judicial governance body have legislative initiative, but emphasizes the obligatoriness for such a body to provide advisory opinions on draft laws related to the judiciary and the functioning of judicial institutions, as well as on judicial procedures.
As of today, we have a complete understanding with the Verkhovna Rada of Ukraine Committee on Legal Policy regarding the resolution of those issues facing society and the judiciary. However, it depends solely on the persons currently occupying the relevant positions, on communication with them and personal beliefs. Understanding may not always be reached.
Judges and the HCJ, as a body of the judicial governance, are more familiar with the problems that exist in the judicial branch and therefore can promptly offer the legislature timely ways to address them, particularly with regard to legislation on judicial and the status of judges, as well as procedural codes. Therefore, the HCJ or the Supreme Court should have the right of the legislative initiative.
— Currently, the parliament is working on a bill on legislative activity. Were there no relevant proposals from the judiciary?
— The proposal to provide advisory opinions to the HCJ comes from the Verkhovna Rada of Ukraine Committee on Legal Policy. As I mentioned, we have understanding and cooperation. However, it would be better if the right of the legislative initiative was enshrined at the legislative level. Currently, there is no such will of the legislator, but the HCJ actively expresses its position through the advisory opinions.
— What legislative changes do you expect from the Verkhovna Rada first of all?
— These are the changes to the law on the HCJ regarding the Disciplinary Inspectorate Service. They are extremely urgent to resume the procedure of disciplinary proceedings.
Changes are also needed to the Law of Ukraine "On the Judiciary and the Status of Judges" to specify the grounds for bringing a judge to disciplinary responsibility, provided for in the Articles 106 and 109 of this Law, as the grounds listed in the specified provisions are rather vague, which allows the person filing the complaint and the judge to interpret them differently, and in the future to appeal the decision of the HCJ in a disciplinary case juridically.
It is also important to address the issue of a significant disparity in the payment of judges at different levels of the judiciary. The level of judicial remuneration for the judges of the first instance courts should be increased as they have the greatest workload in handling cases. If we look at the perspective and consider the Supreme Court as a court of law, then the majority of decisions after their review in the appellate instance should be final and not subject to appeal in the cassation instance. It all depends on the quality of justice in the first instance and the appellate courts, which again raises the issue of the selection of the judicial corps because with such an extremely heavy load on one judge, it is impossible to hope that court decisions will be properly motivated.
— What, in your opinion, will really contribute to increasing the authority of justice?
— This is a complex issue that requires comprehensive solutions by all the branches of the government, although it largely depends on the judicial branch. Increasing the authority of the court is impossible without ensuring transparency and openness of the judicial process, the equality and competitiveness of the parties, the legality and justification of the judicial decision, which must be based on the supremacy of law.
Higher education institutions also play a big role in preparing future lawyers who may later choose to become judges. In practice, many of them strictly adhere to the requirements of the law. This is a standard from the Soviet times: "The law is strict, but it is fair." But is it really fair, clear and understandable for a person? In my opinion, when making decisions, the judges should use the practice of the European Court of the Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, which according to the Law of Ukraine "On the Execution and the Application of the Decision of the European Court of Human Rights" are a source of law.
The second problem is the legal culture of the citizens. Today, any legal and reasoned court decision can be called into question if it is criticized by everyone, including individuals who do not have the necessary information about the essence of the dispute and have no elementary knowledge in the field of law.
All branches of the government should work on improving the level of legal culture among the population. It is necessary to engage in educational work, at least at the level of the schools, institutions for professional-technical education, universities, and in labor groups.
Control over the judiciary is exercised by the society, including through the procedure of disciplinary proceedings to consider complaints against the judge's actions. If there are violations in a judge's actions, it should be the subject to a response, and the main thing is that the principles of inevitability and justice should be observed, with the legislation containing a wide range of punishments. If transparency in the conduct of disciplinary proceedings is ensured, this will also contribute to greater public trust. In my opinion, thousands of judges work conscientiously, value their work, and the authority of the judge, but one or two judges’ unworthy actions can undermine their work and the authority of the judiciary. Therefore, the judicial community itself supports its purification from dishonest judges.
— What motives guided you when you decided to take part in the competition for the HCJ and after the election - to head the Council?
— This is the trust of the judicial community. If I didn't feel it, I wouldn't have participated in the competition. The judges are well aware that if the problems of the judiciary are not solved by themselves, these problems will be solved by other branches of the government. The HCJ should be the locomotive of change and reform in the judicial system and it should employ people trusted by judges.
— What would you consider the main indicator of your effectiveness in this position?
— The main indicator will be the growth of citizens’ trust in the judiciary. Perhaps this is said generally, but in what way to evaluate the effectiveness of the work? Definitely, the HCJ should set an example. And if even from our small steps the percentage of trust begins to grow, it will be a positive thing that can be continued and consolidated. Any reform that requires fundamental changes is a long process, its results may not be noticeable right away, but may manifest only later. The main thing is to choose the right path and persistently follow it. But the changes must be balanced and thought out several steps ahead, so as not to make fatal mistakes. It is necessary for both judges and ordinary citizens to see that the HCJ demonstrates openness, readiness to be the locomotive of the reforms, to take responsibility for their implementation and to ensure the independence of the judiciary which is a component of the right to a fair trial.
(The interview was conducted by Anatolii Hvozdetskyi, "Yurydychna praktyka”)