HQCJ: Weak judges will not pass the qualification evaluation
On 23 May, the High Qualification Commission of Judges completed the qualification evaluation procedure for the majority of judges of the first group of 990 judges. From March 23 to May 18, 842 judges were interviewed. 626 judges successfully passed all the stages of the qualification evaluation. Only 20 judges were recognized as such that do not correspond to the position held. With regard to almost 200 more judges, either a break was announced or their qualification evaluation was stopped for the time being. In addition, 37 more judges did not pass the exam, which means that they didn’t collect less than 50% of the required points. During this short period of time, the judges, both those who have passed the evaluation and those that have not yet passed, have accumulated a large number of questions to the HQCJ, starting from the details of writing practical tasks and up to the issue of final scoring. Stanislav Shchotka, the HQCJ Deputy Chairman, told about the little-known details of the qualification evaluation to “Sudovo - Yurydychna Gazeta”
Requirements of the 2018 Qualification Evaluation
- How the interviews with judges in 2018 differ from interviews during the 2016 evaluation?
Both in 2016 and in 2018, the HQCJ panels communicate with judges, ask them questions or clarify any information. I would say there are a few principal differences from 2016. First, now the HQCJ panels work not according to the principle of specialization, as it was in 2016, but in a mixed order. It means that in one panel there will be members of the Commission, specializing in different jurisdictions. The specialization of the panels is retained only when checking the practical work. We believe that the specialization of the members of the Commission during the interviews does not play a decisive role. Secondly, the HQCJ is now a spaceship from the point of view of organizing work and having a wide variety of information about judges. The information we receive from the National Anti-Corruption Bureau (NABU) is much more complete and accurate than it was in 2016. One can say that we are receiving not just data, but the complete analytical conclusions. The Commission now receives information from the National Anti-Corruption Agency (NAZK), which was not actually the case in 2016. Thirdly, now there is the Public Integrity Council, which has the right to send opinions or data concerning certain judges to the HQCJ. Although, since mid-March, this body does not send us opinions and information, the HQCJ members still get acquainted with the data collected by the Council and placed on its website. Fourthly, the materials of the judicial dossier are now much more complete than they were in 2016. Fifthly, we have data on psychological testing of candidates who give us an understanding of the psychological characteristics of the judge's personality.
- Does this mean that the judges who passed the evaluation in 2016 were lucky compared to those who are currently undergoing evaluation?
It was not easier for those who passed the evaluation two years ago. Not everything was clear then and many judges had a lot of stress and anxiety, which they could not always cope with. In fact, in 2016, about 400 judges were pioneers. Then it was important to change the psychological attitude of judges to the evaluation. Many were concerned "how can it be that someone checks the judges", their qualification, property, the reasons for the canceled decisions. By the way, I would like to note that until 2010 the judges were also evaluated, although there were quite different procedures in a different volume. They dealt mainly with the performance of the judge. At that time, there were six qualification classes, from the first to the highest, which were assigned to judges according to the results of examining their professional achievements at a certain time. A particular level was set for each instance. The qualifying commissions of the judges of the previous compositions prepared documents for each judge who claimed to be promoted, invited him/her to an interview, and then decided whether to assign a new class to the judge or not. There were no tests, of course, then. Yes, and the evaluation itself was more voluntary, although it was necessary for the judge to go for career advancement.
- What is the key difference between the qualification evaluation and the Supreme Court Competition?
Unlike the Supreme Court competition, now we do not choose which judge is better. In the qualification evaluation process, it is important to give a response whether the judge corresponds to the position held or not. At the same time, the scale of scores is now arranged in a way that only judges above the average can pass the evaluation. Frankly, weak judges cannot pass successfully.
- What are the scores for the evaluation? How many points are necessary for a judge to pass the evaluation?
- In order for a judge to confirm the ability to administer justice in a particular court, he or she must score 67% of the points, that is, from the maximum possible thousand points he must receive at least 670 points for all stages of evaluation: examinations, psychological testing, evaluation of integrity, personal competence etc. For each stage, the judge is awarded points on the appropriate scale. To score 670 points or higher, the judges need to try very hard. There are cases when judges pass the exam successfully, but in general, scale receives fewer points than necessary, which in the end means failure in the evaluation.
- How are points allocated for evaluation in general?
- For the theoretical and practical tasks of the exam, the judge can get a maximum of 210 points. At the same time, there is still such a criterion as a professional activity, for which the judge can get a maximum of 80 points. For professional development – 10 points. That is, in general, a judge can get a maximum of 300 points for the professional competence. It is also important whether the judge did not skip the training at the National School of Judges (NSJ), whether he/she delivered lectures, attended seminars, etc. Personal and social competence, conclusions about which psychologists make, can give judges a maximum of 100 points. For integrity and ethics, judges can get a maximum of 250 points, while 100 points out of 250 are also deduced by psychologists according to the results of psychological testing.
- Which is more important for the judge: competence or respect?
- Practice shows that professional, qualified judges, with few exceptions, are also people with integrity. The more competent is the judge, the more he or she is respectable because he or she values his reputation.
How to complete a practical assignment
- There are several dozen practical works, which received extremely low scores from the members of the Commission. What kind of work are these?
- All the practical tasks that received a low score, all without exception, were very weak works, containing a huge number of both procedural and simple grammatical and spelling errors. There are tasks where there is no solution at all, meaning that the judge did not even write if he rejected the claim or granted it. (Stanislav Shchotka demonstrates examples of such works.) Even some judges of the appeal instance do not have a solution to the dispute, and the decision itself is a set of sentences with referential norms, - author's comment). But, fortunately, there are not many such works.
- When solving a practical task, should judges produce the right decision or simply show their vision of how to resolve the proposed legal situation?
- There are clear requirements of the procedural codes on how the judge should write a decision and what and how to take into account or evaluate. As a result, the judge, if he or she did everything right, must come to a concrete decision in the practical work. There are decisions where the judges made mistakes, for example, in legal relations or evaluation of evidence. Nevertheless, for such performance of tasks, the judges thought did not receive a high score, but the "passing" points were still scored, as they wrote the decision, but made mistakes, which in practice can be corrected by a higher authority. In general, professional judges should clearly know what and how to write. If the judge wrote his or her own decision, then he or she knows how and what should be there. But if the judge has long been accustomed to having an assistant who was drafting for him, then it is quite possible that he or she may have problems with both writing the decision itself and observing the correct structure of the solution. It is important to understand that the Commission does not just conduct the evaluation, but studies the practical skills of the judge. Does he or she know the structure of the court decision, what should be there, and how it is generally written. Here are examples (Mr. Schotka demonstrates works, - author's comment). There are tasks where the judge clearly and logically in support of his decision indicated four decisions of the ECHR, the practice of the Supreme Court of Ukraine, the Supreme Court, the plenums resolution. In practical tasks, it also happens that a lot has been written, but there is a lot of unnecessary information, there are few specifics. It happens that there are a lot of misprints, mistakes, repeated in different paragraphs every now and then. As a result, there will be a difference in the scores received.
- Still, is there a correct answer in practical assignments?
- Yes, there is. All practical assignments are developed on the basis of judicial decisions that have passed all judicial instances and entered into force. It means that they are all based on existing jurisprudence. This does not mean that the judge cannot make a mistake and come to a different conclusion. But in this case, a decision will get fewer points, because the judge does not fully understand the nuances of the practical task. There will be still a chance to receive the scoring points.
- What is the basis for the points in the practical task? Most judges are sure that they wrote everything correctly, but for some reason, they did not get the highest scores.
- We have the forms developed by experts to assess the practical task, broken down by points. Points are connected to the procedural aspects of the assignment, which the judge prepared, depending on the specialization. That is, the document must comply with the requirements of the procedural law. Each indicator has its own assessment. To get a high score, it's not enough just to understand the legal situation with the case correctly. It is important that this decision would be in accordance with the norms of the codes. The decision must be reasoned, justified, all evidence must be evaluated accordingly. That is, the descriptive part should indicate the plaintiff's position, the defendant's objections, the parties' statements, petitions, and other procedural actions in the case. In the motivation part of the decision we want to see the facts of the case and the content of the disputable legal relations, the evidence on the basis of which the relevant circumstances were established, the evidence rejected by the court and the reasons for their rejection, the motivated evaluation of each argument given by the participants in the process, as well as the rules of law applied by court and the motives for their application. The operative part should contain conclusions, the distribution of court costs, the timing and order of entry into force, etc. Special attention is paid to spelling and stylistics. For each position, thus, a score is set. At the same time, I must note that simply referring to the rules of the law without reasoning for their application is not enough to receive a good result. It’s not enough if the judge simply indicates in the decision a certain set of rules and provisions.
- The judges who passed the practical task stated that some of the tasks contain obvious errors or are incomplete if they are compared with the real materials of criminal proceedings. For example, there are complaints about the quality of examinations in model criminal cases, which in reality would hardly have been accepted by the court. This leads to the fact that judges, although they see such inaccuracies, are forced to deal with them and even take them into account in order to successfully write a practical task.
- All tasks for the exam, both anonymous tests, and practical exercises, are prepared by the National School of Judges. We check these model tasks and reject the failed samples. But first of all, we are interested in the judge’s thinking, how he or she writes out the decision and what conclusion he or she comes to. If the judge while studying the materials of the practical task sees that there are obvious discrepancies in it, then he can make a reservation in his work, indicate that he sees inconsistencies from the developers’ side, and note whether he or she takes this or that document as evidence or not, and, based on this, consider the case.
- Is there any subjectivity on the part of the members of the Commission when checking the tasks?
- You cannot escape from this in a situation when the work is checked by a person, not a robot. But to add objectivity, we have done a lot. So, all the works are encrypted, which means that the examiner does not know whose work he is checking. Verification of the practical task is carried out by each member of the Commission autonomously. Each member of the panel puts out his score, then the points are summed up, divided according to the number of members in the panel, and the average score for the work is displayed.
- If you look at the general results of the practical task, many judges get for it 60-80 points out of 120 possible, which can be roughly described as a "3" score. Does this mean that there are certain problems in the training of judges?
- I would not put the question like that. This number of points is still a passing threshold. But it means that such judges can work in their positions in the court of their level, but, probably, they have to try harder to carry out justice in the Supreme Court. Perhaps, someone during the exam did not cope with the stress, someone was uncomfortable, in general, the reasons for such test results can be different.
- Judges from courts with high workload complain that the conditions for quality training are much worse for them than for colleagues from less loaded courts. To what extent such an opinion can be called objective?
- It’s difficult to tell. The fact is that such evaluations have never been conducted in Ukraine before, and there is no way to compare and say which courts and under what conditions are undergoing evaluation better. You can only make subjective guesses. It can, of course, be assumed that indeed many judges have to "tear" between the current work and the preparation for evaluation. But these are the realities.
- Will the test and practical tasks change in the future?
Yes. The base of test and practical assignments for the next groups of judges who will pass the qualification evaluation in the second half of the year will be supplemented and updated. This is due to an objective reason because there is a risk that the current tasks and answers to them are becoming known.
Vyacheslav Hrypun
Sudebno-yuridicheskaya gazeta - 21 May 2018
