The Acting Chairman of the High Council of Justice Vitalii Salikhov, Council members Oksana Blazhivska, Dmytro Lukianov, Roman Maselko, Mykola Moroz and Inna Plakhtii participated in the meeting of the Verkhovna Rada Committee on legal policy.
In particular, the agenda included the draft Law on making amendments to Chapter XII “Final and transitional provisions” of the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the secondment of judges to ensure the administering justice and elimination of the threat of termination of work of appellate courts (No. 6049).
The draft law suggests temporarily, till the end date of the competition of the High Qualification Commission of Judges of Ukraine for filling vacant judicial positions in appellate courts, announced on August 9, 2019, to empower the High Council of Justice to carry out secondments of judges of local, appellate court or the Supreme Court to the appellate court of the same specialization for a period of one year. Moreover, it is provided that in case of loss by the HCJ of the authority, this function will be carried out by the Council of Judges of Ukraine.
It should be reminded that since November 2019 any selection of judges and filling of vacant positions has not been carried out due to the absence of the plenipotentiary composition of the High Qualification Commission of Judges of Ukraine. According to the Law of Ukraine No. 679-IX, the High Council of Justice seconds judges without recommendation or submission from the HQCJU. Although, this Law has not resolved a problematic situation in appellate courts, associated with a shortage of personnel.
There is a real risk that before the restoration of work of the HQCJU and finalization of the competition for filling vacant positions of judges of appellate courts, an emergency will occur at appellate courts due to the lack of judges who will be able to administer justice and consider cases, which will lead to termination of work of appellate courts.
The Acting Chairman of the High Council of Justice Vitalii Salikhov noted that the Council expressed its position regarding mentioned draft law in its advisory opinion, where stated that mentioned measures could be supported in case taking into account expressed remarks and warnings from the HCJ.
He noted the critical attitude to the provision regarding transferring a judge of a local court by seconding him/her to the position of a judge of appellate instance. According to Vitalii Salikhov, it is necessary that such a judge should confirm the capability to administer justice precisely in a court of appellate instance.
Apart from that, costs for ensuring such transferring are not provided for the State Judicial Administration of Ukraine. Vitalii Salikhov drew attention that the judicial remuneration of a judge of appellate instance is higher than that for the judge of the first instance, that is why such payments due to the transfer will require additional allocations of the state budget.
He also noted that to solve the staff shortage in appellate courts, it is expedient to provide the possibility of transferring judges of high courts, courts of cassation instance, in case of leaving the amount of judicial remuneration in such case on the level of high court, or filling the position of a judge by candidates to position of a judge of the Supreme Court, who have passed all the procedures and confirmed the capability of administering justice.
Vitalii Salikhov also emphasized that the transfer of a judge is a constitutional power and prerogative of the High Council of Justice, and cannot be put on the Council of Judges of Ukraine, which is a body of judicial self-governance and is not given the authority on this issue. That is why the HCJ is against such legislative initiative.
The HCJ member Mykola Moroz supported the initiative on the expediency of provision of the legislative norm, according to which the persons who confirmed the capability of administering justice within the Supreme Court, but have not become its judges, could be appointed as judges of appellate court by special (reduced) procedure.
He noted that filling part of available positions by such candidates could give the possibility to relieve tension in the most problematic, in terms of staffing of appellate courts in conditions of possible massive satisfaction of applications for resignation in case of starting of work of the HCJ.
Mykola Moroz emphasized the necessity of immediate resolution of this issue and the possibility of preparation by the High Council of Justice of relevant proposals for consideration by the Committee.
The draft Resolution on adopting as a basis the draft Law of Ukraine on making amendments to Chapter XII “Final and transitional provisions” of the Law of Ukraine “On the Judiciary and the Status of Judges” regarding the secondment of judges to ensure the administering justice and elimination of the threat of termination of work of appellate courts was registered on September 15, 2022 (No. 6049/П).