Run forbid. In the process of qualification evaluation of judges for compliance with their positions we are not chasing the number of dismissed judges - Sergii Koziakov, Chairman of the HQCJU
The day before our meeting with Sergii Koziakov who is the Chairman of the High Qualification Commission of Judges of Ukraine (HQCJ) we've met Mr. Regis Brillat, Special Representative of the Secretary-General of the Council of Europe in Ukraine. According to the European representative, the number of events and the scope of workload during the reform of the country's judicial system cannot even be compared with other state bodies. Probably, such a number of tasks is hardly fulfilled by any agency of the judicial system of the EU countries. During the meeting, participants discussed the report of the Secretary-General of the Council of Europe for 2018. In the section devoted to the independence of the judiciary, it is said about Ukraine as well.
On the working table of the Chairman of the HQCJ lies this document, opened on page number 15. "It contains very good news, " says Mr. Koziakov, and we start the interview.
- And what do Europeans say about Ukraine?
- It's not just about Ukraine. About Austria, Poland, Romania, Switzerland, Bulgaria, Slovakia, Moldova, Georgia ... take a look (Sergii draws our attention to the last paragraph of the section - Ed.), According to GRECO's data in Italy and Netherlands, the legal system allows judges to hold any position as a member of parliament or a member of local self-government authorities. Can you imagine that? A judge can be a member of parliament! We have departed from this kind of practice such as part-time work for many years ago. The Council of Europe recommends to Italy and Holland to change such a situation.
What does the Secretary General of the Council of Europe write about Ukraine? A completely new composition of judges has been appointed to the Supreme Court of Ukraine after the successful completion of the procedure aimed at selecting candidates with the highest level of professional competence and personal integrity after amending the Constitution of Ukraine and changes in legislation in 2016. An important consequence of the constitutional changes in Ukraine is to break the link between the parliament and the judiciary and its self-governing bodies ... These positive developments are an example of how changes can be achieved if there is the necessary political will and what role the Court plays as a facilitator of structural change." Such statements at the highest level may not be done in a hurry. Information has to be carefully checked from various sources, before concluding and displaying in the text of the document, published once a year.
- That is, the withdrawal of the Public Integrity Council (PIC) from the procedure of qualification evaluation of judges did not affect the legitimacy of that process in the eyes of the international community?
- It's you, as a representative of the press, you can provide an evaluation. I can only say that according to the results of the work we did not notice a significant difference, even statistically. The bigger part of judges passes the qualification evaluation successfully, but the minority is not – therefore, do not confirm the correspondence for the position. A certain number of decisions were postponed, though not for a long time. By the way, we quickly began resuming interviews with judges, regarding which the issue was postponed due to the shortcomings in the documents received from the PIC. By the way, the Council did not eliminate any shortcomings, but continues to publish ads with information about the judges on its website, and we use it as a source of information along with other sources, such as, for example, the site of the newspaper "Juridical Practice" or "Ukrainian Truth" ". We carefully check such information; ask questions to the judges during the interviews. And by the way, there were no interviews "for five minutes long", in which we were accused not so long ago. They last for 30 minutes, an hour and more – it all depends on the content and nature of the conversation. I recall that in direct contact with the judge at different stages of the qualification evaluation, the Commission communicates about 25 hours. Ads with information on the site of the PIC, by the way, often appear after we have taken a decision on a particular judge.
Now, we are completing the qualification evaluation of the first thousand judges, in the coming days, the psychological testing of the second thousand starts. Although in fact the group under the provisional name "the second thousand" consists about 1300 judges. Approximately 700 of new dossiers of judges have already been published on our website. The work is in full swing now.
At the same time, we are planning our work for the second half of the year. The schedule will be even tighter. Perhaps we will slow down the qualification evaluation of judges to conduct some very important events in other procedures. We need to complete procedures for the selection of candidates for the position of judge for the first time, conduct a qualification exam for candidates for judges from among the assistant judges, who will recently complete a three-month special training in the National School of Judges of Ukraine, as well as for the candidates from the second and third selections, who received the right to participate in the qualification exam according to the law (altogether there will be about a thousand participants). The Commission has an experience of holding such serious organizational events.
I guess the exam will be held in the second half of October, after which a competition will be announced to fill vacant positions in the courts of the first instance.
Why is it so important? I would like to remind you that there are about 2400 unfilled vacancies in the judicial system (what is 30 %), and this figure will only grow, because not all judges, according to the results of the qualification evaluation, confirm the compliance of the position. They leave the profession. This is the first argument. Second is that the situation in the courts of appeal is even worse. The commission needs to announce a competition to these courts, besides judges, lawyers and academicians can claim to the appellate courts. Obviously, judges of the first instance will try their forces here too. This will further increase the staff hunger in local courts.
- "10% of the judges did not confirm the correspondence of the position held" - is this a lot or not?
- I want readers of your newspaper to read my answer and understand once and for all: conversations around "is that a lot or not" can very easily go into manipulation and populism. It should not be about how much is this or is that enough, but how much it affected the changes in the judicial system in general. We do not pursue quantity. We do not even think about the number of dismissed judges. The qualification evaluation of all judges of the country is an unprecedented practice for Ukraine, which has no analogs in other countries of the world.
It is worth recalling that the qualification evaluation has become a legislative alternative to the one-stage dismissal of all judges. In the notes of some activists, including lawyers, I read such comments kind of like: "Only 10 % of judges did not pass the qualification evaluation" or "Only five judges did not confirm the compliance with their positions". The word "only" is indicated intentionally, to detract from the results of the process. And the results of the multi-month procedure are not about "only", but that judges who continue to administer justice really will meet the criteria of competence, professional ethics, and integrity.
The procedure of qualification evaluation for compliance with the position is very different from the competitive procedures. In the second case, we elect the best, and in the first, we determine the judges who meet the minimum acceptable requirements for the level of professional knowledge and competencies to continue working at the place where it has already been working for many years.
Up to 10 % of judges have not confirmed their compliance with the position held so far. According to the results of the whole process, the indicator can make up 8 % and even 13%. In our opinion, this is a lot. The judicial system is already missing 30% of the corp. And if you add another 10%, it will make 40%, and so you can reach 95%! At some point, it may turn out that there is simply no one to deliver justice. We do not make decisions to leave the judge on the position only because he/she is the only acting judge in some court on the principle: there are questions left to him, but we will close our eyes and let him through. No! We evaluate all aspects.
In addition, we have the recommendations of a number of European institutions, as well as universal international organizations. First of all, I would like to mention the Council of Europe, where for example, the Venice Commission operates, which has provided many recommendations we strive for in our work. We do not make exceptions, like some of our colleagues, doing one recommendation but at the same time ignoring the other. Quite often I can hear from various well-known public figures, professionals in science or legal practice, something like: "These international recommendations should not be adhered to because they are designed for stable countries that Ukraine is not." I fundamentally disagree with this approach.
Just recognize the unsuccessful upheaval in Turkey, which resulted in the dismissal of almost 3,000 judges in one day. There are different points of view and opinions as to whether all these judges have taken part in the conspiracy or not. Not so long ago I talked with representatives of a well-known law school in London and told them that Ukraine - "country in transition". They replied that Britain is a country in transition as well. They have a Brexit there, and try to compete with them in the number of necessary changes! You can, of course, parry the fact that Britain has a strong judicial system. But now we are talking not only about the judicial system. Look, in the EU, to put it mildly, not happy with what is happening with our other neighbors: Poland, in other countries (Hungary, Romania, Slovakia) changes in the judicial system lead to mass protests.
We all know that America's judicial system is a model for which we need to be equal. But here I read the English version of the article in Wikipedia about the US Supreme Court, which talks about claims to the integrity of the judges of this respected judicial body. Criticized, for example, the interference of the court in political disputes. One of the current judges of the Supreme Court of America received an advance of 1.9 million US dollars for an unreleased book. Numerous trips of judges to exotic countries financed by private donors are mentioned as well. I am sure that in these cases the judges gave exhaustive logical explanations.
I agree that we always need to strive for the best. In this regard, examples of Norway or Japan, Denmark or South Korea are also indicative. But in one year you cannot achieve an ideal, just as you cannot compare anything. You always need to compare something with something. I appeal to the court attorneys. Please, recognize what was just recently happening in the judiciary. Let's compare what we had three or five years ago and what is now, and then set ourselves new goals and objectives. Step by step.
- What difficulties arose during the qualification evaluation of the first thousand judges?
- We do not have any difficulties with the existing level of training of staff and members of the Commission. There are only managerial problems, but they can be solved easily. The main challenge is the number of hours per a day.
The public representatives have certain complaints that we are moving too fast, and they do not keep up with us. In this regard, we focus on the Venice Commission opinion, which not long ago indicated that in the current situation in Ukraine the qualification evaluation should be conducted quickly and cautiously. That's what we are doing, conducting it quickly and carefully. The Venice Commission did not say that it is necessary to be guided by the fact that the public could keep up with us... If the state body moves forward and shows an adequate result than it is necessary to continue the work. If the result is unsatisfactory, then we should stop and think about what to do with this.
In addition, we observe competitive procedures conducted in other state bodies in Ukraine. I advise you to take a closer look at them and critics. And what about the quality of the methodology, the transparency of the procedures? But what about the transparency of critics themselves?
- By the way, about criticism ... How are developing relations between the HQCJ and the Public Integrity Council (PIC)? Were you able to come to a compromise?
- Our relations are developing in three different directions. At first, one of the members of the PIC appealed against changes of the Rules and Regulations regarding the order and methodology of the qualification evaluation related to the relationship between the HQCJ and the PCI. We asked for the involvement of all members of the PIC in the case. The case is still under consideration. Secondly, the mediation issues. In this process, there are constructive proposals and positive movements, but we agreed not to disclose the details. Third, there is situational communication during meetings and, of course, criticism by the Council of the work of the Commission in social networks and in electronic media. It looks like some of the acting and criticizing have turned only into critics. By the way, the law does not mention the powers of the members of the PIC to criticize the work of the HQCJ or any other state body.
- In mid-May, the program of the exam for qualification evaluation of candidates for the Supreme Court on Intellectual Property (IP-court) was published. Can we already start the countdown before the exam starts?
- This is what is included in our plans for the Autumn. In a few weeks, the exam questions (more than 1000) will be published, let the candidates prepare. We hope that interested parties in this process will look at the exam program and will name (if any) their remarks. We are open to dialogue and waiting for feedback.
A special verification of candidates for the IP court will be completed in the coming days. The number of candidates will not change significantly according to the results. In general, according to my observations, the special verification in the existing form is not an effective tool. We send thousands of requests, get thousands of answers, information is accumulated by hundreds of people throughout Ukraine, and the negative "conclusion" gets less than 0.5%.
- By what criteria does the HQCJ recommend judges of the highest specialized courts for transfer to other courts?
- There are no criteria defined by the law. The law does not say that the Commission should establish it. On the one hand, it is not very comfortable, because we are already accustomed to different kinds of criteria. The Commission in our cadence began to establish other criteria in addition to the length of service or the number of points received in the exam.
We provided recommendations for the transfer of 47 judges of the Supreme Administrative Court of Ukraine (SACU) and the Supreme Commercial Court of Ukraine (SCCU). In this case, the length of service is not a serious argument, because the experience of all the judges of the highest specialized courts is big enough. Two or three years’ difference inexperienced judges with 30 years of experience, you must agree, should not be the key issue. Therefore, we looked at all aspects of the complex. Did the judge participated in the competition to the Supreme Court, did he pass the qualification evaluation? Someone was telling that there is an apartment in Kyiv and three children, others referred to parents of old age who need care. Biographical features of the judges were very different, which cannot be said about the number of vacancies in Kyiv. That is why the HQCJ adopted such decisions. The law provides for the discretion of the Commission to transfer the judge in such cases without his consent. We were aware that one would like the result but others won't. And the dissatisfied, perhaps, will appeal against our decision in court. So it was with the competition to the Supreme Court. Discomfort decisions entail lawsuits. The Legal Service of the Commission accompanies simultaneously more than 100 lawsuits. We got used to it.
We follow the practice of the Supreme Court. There are some decisions extremely important legal positions concerning the discretion of the Commission. In our opinion, the function of transferring judges in case of reorganization, liquidation or termination of the work of the court is a complete discretion of the Commission.
- According to our observations, the process of transferring judges of the highest special courts for the HQCJ appeared to be more difficult than it was expected, isn’t it?
- Maybe you are right. But no one thought that this would be an easy decision. In addition, we already have a similar experience (remember judges from Kherson). And in the future, we expect thousands more of such solutions...
- When does the HQCJ plan to announce a second competition to the Supreme Court? In your opinion, should the remaining vacancies be filled proportionally or taking into account the burden for the courts of appeal?
- I think that we will announce in late September or early October 2018, but the last word will be the Commission's one as a collegial body.
As for determining the number of vacancies, in any case, this issue is the competence of the State Judicial Administration of Ukraine (the SJAU). But we do see that the burden on judges is uneven, the Cassation Administrative Court of the Supreme Court is considering the most cases, and the least number of cases goes to the Cassation Criminal Court. Probably, this factor should be taken into account. If the SJA deems it advisable to consult us on this issue, we will express our opinion.
- How effective was the institution of secondment of judges as a tool to solve the problem of staff hunger and regulate the burden on judges?
- In many cases, it was effective enough. A serious personnel problem arose, for example, in the Solomensky District Court of Kyiv city. We seconded judges there, and now, in terms of the number of cases reviewed, the court is working effectively.
But the last attempts to fill vacancies in the Pechersk District Court of Kyiv city was not crowned with success. Judges from the regions do not express a great desire to work in this court.
- What challenges will arise before the judiciary, in particular, with the HQCJ, in the light of the forthcoming process of optimization and consolidation of the courts, announced in last year's decrees of the head of state?
- The process of optimization and consolidation of courts is an extraordinary challenge for Ukraine, both logistically and socially. This is a challenge for judges, for the court apparatus and even for litigants: physically the court will exist, for example, in one district center, but legally in another.
It seems to me that it is difficult to predict the consequences until the end, but the process needs to be managed in order to minimize the negative consequences and make positive ones tangible at once.
- Have you already thought about how the process of filling new institutions will take place?
- Yes, we thought about it. The procedure as a whole will not differ from the procedure of the transfer of judges of the highest specialized courts and the Supreme Court of Ukraine to the other courts.
I can only say that we, probably, will start the process of filling new instances from the courts where judges already passed the qualification evaluation for compliance with their positions. By the end of the summer, it is expected that 2,300 judges will be evaluated.
- Why, in your opinion, some courts were liquidated, when others just reorganized? Will the procedures for their staffing be different?
- I do not think anything regarding this issue. Rather, what I think, I will not voice. The HQCJ did not participate in the development of a new court map of Ukraine. And that's why I do not want to comment on what has already happened.
As for the differences between the procedures, I do not see any significant dissemblance. In the Law of Ukraine "On the Judicial System and the Status of Judges" everything is written through the comma: "... in cases of reorganization, liquidation or termination of the work of the court". This is one logical series.
But I would like to return to the matter of challenges that have clearly manifested in the process of enlargement of the courts.
The judicial system distinguishes from other branches of power with kind of lack of a real commander. Almost all the bodies here are collegial, except perhaps the State Judicial Administration. But the head of the SJA is also not the commander of the entire judicial system.
We can debate a lot about political influence on the judicial system. And if the process of streamlining and enlarging the courts had to take place like ten or even four years ago at least, the judicial system could easily apply to the Administration of the President of Ukraine with the request "do entrust us for this period please". Given the existing level of relations between the judicial system and the Administration of the Head of State, I declare responsibly: this is impossible. The administration will not deal with it. However, the influence of the Verkhovna Rada of Ukraine significantly decreased at the same time. The interest of the People's deputies to the competitive procedures has practically disappeared.
The judicial system must coordinate itself somehow. There are two types of management: subordination (as in the army) and coordination (as, by the fact, the judicial system). The coordination system is not very effective when you need to do a lot of work promptly. But we will not get away from this matter anywhere.
(Interviewed by Christina POSHELYUZHNAYA,
«Legal practice»)
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