Sergii Koziakov, Chair of HQCJ, talks about the plans and procedures which will hold the Commission captive in 2018
We would like to draw your attention to the interview given by the Chair of the High Qualification Commission of Judges of Ukraine Sergii Koziakov, in which he talks about the plans and procedures which will hold the Commission captive in 2018:
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Sergii Koziakov, Chair of the High Qualification Commission of Judges of Ukraine, talks about the plans and procedures which will hold the Commission captive in 2018.
Sergii Koziakov: “In 2018, we want to make qualification evaluation of over half of the judicial corps”
We met with Sergii Koziakov right on the eve of the New Year. In the lobby of the building of the High Qualification Commission of Judges of Ukraine (HQCJ) stands a beautiful Christmas Tree, and the walls are adorned with paintings by Ukrainian artists. At first, Mr. Koziakov conducts a little tour of the building and admits that for the second floor (where the offices of the Chair and members of HQCJ are located) they selected the best works (sure thing!). After that, he switches right to the subject of our interview.
Let’s not count how many times did our interview with the Chair of HQCJ fall through. After all, arithmetic is not a forte of jurists. But if you think that in 2018 the Commission will have more time or is going to rest on the victor’s laurels (for we tend to believe that HQCJ has emerged from the procedures of 2017 as the winner), that’s not so. On top of the past challenges (selection of judicial cadres, qualification evaluation of judges, recruitment contests for courts of first instance and appellate courts, IP court recruitment contest), new challenges have emerged: a revised map of Ukrainian courts and the draft law on the Higher Anticorruption Court. Sergii Koziakov frankly talks about things that upset him during the IP court recruitment contest, and avoids the questions concerning establishment of the Higher Anticorruption Court. To be sure, there was no subject for discussion back then. The draft law in question has appeared on the parliament’s website only in the evening after our interview.
— Mr. Koziakov, in late December 2017 the Supreme Council of Justice (SCJ) has approved the draft decrees on liquidation of local general-jurisdiction courts and establishment of district courts, proposed by the Presidential Administration of Ukraine. What role does the High Qualification Commission of Judges (HQCJ) play in the implementation of these decrees?
— A significant role. 95% of the staffing work required by the Law on Judicial System and the Status of Judges (the “Law”) currently in force is handled by HQCJ.
But I’d like to get back to this question and other procedures a bit later. For now, let me tell you about the departing year.
In 2017, the Commission has organized and implemented two huge staffing projects. Either one is sufficient in itself to get in the Guinness Book of Records. The first project is a recruitment contest for the Supreme Court which, mind you, was held in such a form for the first time in the world, and in terms of the number of procedures, degree of transparency, openness, quality and complexity of procedures for contestants, it was the first event of this kind in our country. To remind you, over 1300 candidates have applied for participation in the contest for 120 vacancies. The second project featured selection of candidates for judges. It’s worth reminding again about the extremely difficult staffing problem in the judicial system. Let’s not talk about the reasons for this problem now, for it’s the subject of a separate interview. But the problem won’t solve itself. 5335 jurists have applied for the selection contest. 4128 of them showed up on 31 October 2017 for the selection exam and took two tests, which in itself is another Guinness record: more than 4 thousand people were simultaneously taking a test (and not even one but two tests). Such a number of participants is an indicator of trust in the Commission. I’d like to point out that there was not a single hint, either in the press or in social networks, that there were some shady deals. In my opinion, it’s a significant achievement. Our successors may surpass this result, but for the time being, the picture looks like this.
Unfortunately, besides the contest for the Supreme Court and selection of candidates for judges, we were unable to get around to other large-scale processes that belong to HQCJ’s competence. Our attention was barely enough to address such aspects as completing disciplinary procedures launched under the previous legislation, completing primary qualification evaluation of judges, assigning judges to problematic courts.
The most important measures which the Ukrainian judicial system so badly needs haven’t been taken. 2018 will become a very difficult year in terms of the number and scope of procedures.
— Even more difficult than 2017?
— I think, several times more so. But I’m not complaining, nothing like that. I’m stressing the fact, just for your information. Let me explain in detail.
The first procedure has already been launched: qualification evaluation of the entire judicial corps, which we started with evaluation of the first thousand of judges. The judges with satisfactory score will receive remuneration under the new law. Today, many judges want to pass qualification evaluation. But it wasn’t always like that; even one-and-a-half – two years ago, the situation was directly the opposite: we felt serious resistance on part of extremely influential figures in the judicial system. Still, it’s not something I would like to fixate on, either. There is no resistance now. On the contrary, hundreds of judges are aggressively demanding to be subjected to a qualification evaluation procedure.
Among these judges are those aged 60 years or more, judges from courts where understaffing problem is especially acute, judges from appellate courts and judges elected for a five-year term without powers.
In addition, we have prepared a list of the second thousand of judges (which includes mostly judges from appellate courts and judges elected for a five-year term without powers). This list will be made public shortly.
In 2018, we want to make qualification evaluation of over half of the judicial corps. Two thousand judges are now in, but as far as the rest are concerned, it’s hard to tell for sure yet. First, let’s see how quickly we’ll be able to handle the first thousand. Mind you, this process depends not just on HQCJ. Don’t forget about the Public Integrity Council (PIC), too. We don’t know how its representatives are prepared. Communication with the Council is presently at the minimum level necessary to implement the Law on Judicial System and the Status of Judges. We handed the list of the first thousand of judges to PIC in advance, and voiced our request as to when we’d like to have their feedback. In the next few days, we’ll hand them the list of the second thousand. We also would like to see how PIC implements, in organizational and legal sense, an impressive number of recommendations from international experts concerning improvement of the Council’s performance. In turn, we have prepared a draft amendment of the Commission’s Rules to expedite, considering the 2018 challenges, completion of the Commission’s procedures.
We expect the first thousand of judges to start taking exams in early February. At present, interviews of judges by psychologists are nearing an end.
— What is the second procedure?
— Continuation of the procedures of selecting candidates for judges. 692 candidates who successfully passed a selection exam are currently undergoing special checks. Eight candidates have been turned down after checking their personal moral and psychological qualities. At the end of the special checks, we’ll decide on admitting the candidates for special training, but I don’t think that there will be serious “candidate losses” at that stage. Training at the National School of Judges (NSJ) will be held in two phases. The candidates from among assistant judges will take a three-month course first, followed by candidates who do not have the required length of service as an assistant judge.
At the same time (sometime in mid-spring), we will hold a qualification exam for candidates for judges from the second and third selection waves. At the end of special training, listeners of the fourth selection wave from among assistant judges will take this exam.
As for the organization of a contest to fill vacant positions, HQCJ is going to decide at a panel meeting how this contest would be held: after receiving exam results shown by candidates from among assistant judges, or without waiting for them. We haven’t considered this matter yet. In general, we expect at least 700 participants for the recruitment contest for courts of first instance.
The contest itself won’t present any difficulties for HQCJ. Everything is in hands of the participants themselves: the higher number of points they score at a qualification exam, the higher their ranking and the chances to land a desired position will be. HQCJ will look at the candidate’s rating only. We have methodology for the cases when two (or more) candidates competing for the same vacancy score the same number of points and have the same ranking.
— This contest will be announced for 600 vacancies?
— Why 600? It could be 300, or 150, or 800. We’ll see which courts experience the most acute problem with staffing, and take into account our own workload. Both the former and the latter can and must be forecasted.
But let’s move on. A recruitment contest for the Higher Court for Intellectual Property Matters went underway, and in December, we started accepting documents from candidates for IP court. The R&D Institute of Intellectual Property of the National Academy of Legal Sciences of Ukraine has developed almost 1000 specialized tests, which were submitted for NSJ’s opinion. Soon, the questions will be posted on HQCJ website for candidates to peruse. As of present, we received applications from 191 jurists. As you can see, almost 200 candidates for 21 vacancies is a good competitive environment. But that is probably it for positive points.
I’ll be frank with you: I am very displeased with the fact that too few Ukrainian advocates and patent attorneys have applied for participation in this recruitment contest. I believe that these two professions really let down the judicial system in particular and the country’s legal system in general. IP specialists unanimously welcomed the idea of creating a specialized court, but as soon as it got around to practical aspects… Talks must be followed by actions, but action is what we don’t see. And that’s my personal complaint against private legal practitioners in Ukraine. It’s a failure. As for judges, they have accomplished their mission in this process, ensuring their representation.
The second part of the contest for the Supreme Court remains on the agenda. Something tells me that in the second half of 2018 at the latest, we will have to organize this part. Another point of HQCJ’s agenda is assigning judges and organizing recruitment contests for appellate courts and the Higher Anticorruption Court.
— Will HQCJ be engaged in these processes? Were you consulted when the draft law was in the works?
— I wouldn’t want to comment on it. The only thing I can tell you is that we expect it to be made public on the parliament’s website. If MPs would want to seek the Commission’s advice on the best wording of the judge election procedure (for nobody in this country knows it better than us), we, of course, will lay down our stance. This document did not come across the Board for Judicial Reform. Nobody has officially contacted us for comments or suggestions.
But let’s get back to the main subject of our interview. Another important point, and you mentioned it in the very beginning, is a new map of Ukrainian courts. If the legislative framework does not change, the Commission will have the power to transfer judges to new courts without a contest. We’re talking about approximately 6000 staffing decisions.
— Would HQCJ use in the process of enlarging local courts the model previously tested on three courts in Kherson?
— Yes. We do have this experience. And in 2014, we had to urgently transfer judges from the ATO area.
At first glance, the process of enlarging local courts must be easy and staffing decisions technical. But that’s only at first glance. For instance, we still haven’t completed the “Kherson process”.
— One and a half years ago, not every judge from the liquidated courts in Kherson has received a “ticket” to a new court; some were transferred to other courts. In the process of enlarging local courts, can HQCJ also transfer judges to courts other than those created by enlargement?
— This question belongs to the competence of the collegiate body.
— What if a judge wouldn’t want to get transferred to a new court located some 100-200 km away from his previous place of work?
— Non-acceptance of a transfer to another court in the event of liquidation or reorganization of the court in which a judge holds an office serves as the grounds for dismissal of that judge from the office.
— Do you have an idea how many staffing decision you would have to make in the coming year?
— While in the past we believed that we would have to make between 4 and 4.5 thousand staffing decisions in 2018, after enactment of the presidential decrees on enlargement of local courts this figure must be multiplied by two.
It’s a fantastic challenge for the Secretariat’s personnel and Commission members. It proves once again that the scope of work handled by HQCJ is incomparable with the workload of any other collegiate public body.
To cope with these challenges, HQCJ would have to optimize its work procedures. We plan to make changes in our internal regulatory acts. For instance, the qualification evaluation procedure can be made more laconic whenever necessary, in particular, in terms of relationship with PIC. The relevant draft documents have already been prepared. That’s the first point. Secondly, we will insist on amending the law regulating the Commission’s internal procedures. The complexity of procedures is unjustifiable in some cases, and the result can be achieved with simpler methods. For the moment, I wouldn’t want to reveal details of the amendments we proposed. These are simple technocratic things which have nothing to do with big-time politics.
— How HQCJ is going to continue to work with PIC, for it seems that their relationship concerning cooperation came to a deadlock?
— No, our relationship is not deadlocked. At this moment, the business relationship as such (besides the necessary procedural aspects) is nonexistent. It is worth noting that information field adds no optimism in this respect. Unfortunately, for a long time we can’t see what member of PIC we could have business contacts with, so that agreements we reach would’ve been bound upon all members of PIC, not just upon those with whom we were in direct contact. We are benevolent about statements on PIC website or critical comments about HQCJ in social networks, but believe that these actions might be good for public activity or political struggle, but aren’t productive in a business relationship.
— Let’s talk about employment of judges of the Supreme Court of Ukraine and higher specialized courts. Recently, HQCJ has announced that it makes preparations for consideration of the transfer of these judges…
— Yes, that’s another procedure of HQCJ. I expect that we’ll get on with it in the second half of January 2018. The preparatory work involves study of the lists of judges. Some of these judges have already passed qualification evaluation as part of the contest for the Supreme Court; others have failed it or haven’t participated in the contest at all. Some want to work at Kyiv Court of Appeals; others want to go to Odesa, Lviv or Kharkiv.
When a judge states a particular city or court in his application, the Commission may, but is not required to take it into consideration. The availability of lodging, family circumstances and, of course, the candidate’s requests will be taken into account when deciding on transfers.
— In December 2018, your term in office of a member of HQCJ expires…
— …earlier. According to your version, it expires in October, not December. The order of Ukraine’s Justice Minister on my appointment is dated 17 October 2014. The first meeting of the Commission with revamped membership was held on 9 December 2014.
— What do you mean by “my version”?
— There is also another version. To be honest, we haven’t studied this matter in detail yet. Nine members of HQCJ were on the Commission for the Law on Judicial System and the Status of Judges, version of 2010, and Article 92 (2) of the Law stipulated that the term in office of a HQCJ member is six years. The Law of Ukraine on Guaranteeing the Right to a Fair Trial, which came into force on 28 March 2015, has amended the Law on Judicial System and the Status of Judges and stipulates that members of HQCJ dispense their powers during four years after the effective date of the Law (for those appointed by a congress of judges of Ukraine), or during four years after their appointment date (for those appointed under quotas of the Justice Minister, Head of the State Judicial Administration and Ombudsman). However, the Law on Judicial System and the Status of Judges of 2016 has repealed the previous legislation. According to paragraph 26, Section XII “Final and transitional provisions” of the revised Law, HQCJ members elected or appointed to the office before the effective date of this Law may continue to dispense their powers until expiration of the term for which they were elected or appointed. As for me personally, I analyze the situation every six months and confer with colleagues and my family to decide once again: to continue to work at HQCJ or resign.
Let’s finish our conversation on an optimistic note. Look: next year, based on the results of qualification evaluation of judges and the first contests for vacant positions held among the winners of selection contests for judge’s offices, we’ll be able to fill over 1.5 thousand vacancies in local courts. And as a result of positive outcome of qualification evaluation exams, several thousands of active judges will receive remuneration three or four times higher than today. That’s not bad, is it?
Interview by Christina Posheliuzhna, Legal Practice
Source: http://pravo.ua/article.php?id=100116561
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