“We Did Not Screw It Up”, Said M. Makarchiuk, Member of HQCJ, When Speaking about the Anticorruption Court Selection Exercise
YURLIGA had a conversation with Mykhailo A. Makarchiuk, Secretary of HQCJ Chamber for Selection and Public Service of Judges and retired judge.
The Law “On the High Anticorruption Court” says the new specialized court shall be created by June 14, 2019. It bears reminding that the Law was adopted on June 7, signed by the President on June 11, published on June 13, and came into force on June 14. The jurisdiction of the High Anti-Corruption Court will cover criminal prosecution of corruption cases in the presence of certain conditions (appropriation of property, weapons, narcotic drugs, etc., committed with abuse of office, misuse of budgetary funds, bribery of the employee of an enterprise, unlawful takeover of property of the enterprise, money laundering, publication of regulations, which illegally increase budget expenditures; declaration of inaccurate information (exhaustive list of crimes is contained in the new Article 33-1 of the Criminal Code). The High Qualification Commission of Judges shall form the court while supported by the Public Council of International Experts. The Commission is obliged to announce a competition and to select the best lawyers who would sit as anticorruption judges. When the competition will be announced, how the evaluation procedure will be conducted, whether the Commission is ready to cooperate with international experts, and the prospects for establishing a real court that would be able to take up work – all these issues have been discussed while interviewing Mykhailo A. Makarchiuk, Secretary of HQCJ Chamber for Selection and Public Service of Judges and retired judge.
- Mr. Makarchiuk, the Law “On the High Anti-Corruption Court” that came into force on June 14 stipulates that the Court shall be formed within 12 months. When will the HQCJ announce the competition?
- First of all, I cannot but mention that this Law does not stipulate the creation of a court, because the President shall submit a separate law on the creation of the High Anticorruption Court to the Verkhovna Rada. As far as I know, as of June 14, this draft law has already been submitted for approval to the High Council for Justice. It is difficult to say how quickly it will be considered, but I believe there will not be too much delay. Before launching the competition, we need to prepare the relevant regulatory basis, form a Public Council of International Experts, prepare test, practical exercises, and regulatory documents for candidates – all this would take several weeks after the law on the court setup is passed. Until then, there are no grounds for announcing the competition, since the Law on the Anti-Corruption Court does not provide for such grounds.
- What are the competition-related regulations to be developed by the Commission? Will they be the same as for the Supreme Court?
- There is a unified procedure of qualification evaluation, which regulates both the assessment of judicial compliance to positions and the assessment of judges during the competition. The Anti-Corruption Court Law has certain peculiarities so far as imposing restrictions on persons who cannot sit as anticorruption judges. Thus, apart from to the general ban to participate in competitions, as stipulated in Article 69 of the Law “On the Judiciary and the Status of Judges”, the new Law, namely Article 7 (4), provides for restrictions for candidates and identifies those who are not allowed to participate in the competition and become anticorruption judges.
With this in mind, we will prepare regulations governing the procedure for filing the relevant documents and the procedure for checking the candidate’s compliance with restrictions. The regulatory basis developed by the Commission will not be changed. Some minor amendments will be made taking into account the peculiarities of the Law. We will be focused mostly on the development of tests and practical exercises for the competition. The National School of Judges will help us with this. All in all, it will not take much time.
- That is, the tests will be developed by the Commission together with the School of Judges?
- The High Qualification Commission approves the tests. The National School of Judges helps to prepare the tests. The Commission members are also involved: we check the tests provided by the School, review them, and eliminate mistakes. Trust me, there is a lot of work to do. We adopt the received tasks to the applicable legislation, check them for compliance with the level of specialization and institutional capacity. Experts from the National School of Judges develop tests, as requested by the Commission. This issue is out of public discussion, only those who are involved in the preparation process have access to test questions and answers while they are being developed. The Commission members only review questions and check if they are duly formulated without knowing answers.
- The High Anti-Corruption Court should be formed in a way that it comprises both first and appellate instances. Will the selection procedure for judges of different instances be the same?
- We have not thought it over yet, but, most likely, the selection will take place simultaneously. The procedure will be specified in the regulation. The level of appellate judges should be higher, so the tasks for this instance will be more complicated.
- The Public Council of International Experts should be set up by the Commission through electing the candidates proposed by international organizations Ukraine is a member of. What will be the selection procedure?
- Immediately after the publication of the Law, we addressed to the Ministries of Foreign Affairs and Justice for information regarding international organizations we cooperate with, in the area of prevention of corruption. Then we will ask them to give us candidates or perhaps they will be the first to suggest cooperation. It is difficult to predict how the communication will take place since we do not know yet what organizations Ukraine have entered into agreements with.
- The Public Council is formed for six years, while the court should be created in one year. Such timing means that the selection of judges will be delayed or there will be several selection exercises?
- It should be noted that members of the Council are elected for two years. The legislator has set such time limits for its activities, but one can hardly say whether it will be operational for six years or less. Everything will depend on how the competition will be held: whether there will be good candidates to choose from, whether lawyers will participate in the competition etc. It is possible that the court will not be formed in full since the law says that at least 35 judges (10 of them – to the court of appeal) should be appointed so that the Court could start working. In any case, this rule does not mean that we will be electing justices for six years. The most important is to have well-qualified and high-professional candidates to choose from, and we will select the best ones.
- How will the Commission co-operate with the Council?
- We are mostly interested in practical aspects: it comes to an international council, so the experts can be Ukrainian – and Russian-speaking as well as English-speaking. In the latter case, we will have to translate judicial dossiers, which will both time and resource-consuming, including financial resources, due to the fact that it comes to legal discourse, and the volume of files is immense (judicial dossiers comprise at least 300 pages). The translation should be done professionally since members of the Commission and experts should understand the circumstances alike. Inaccurate translation will complicate communication, so high-skilled translators should be mobilized. The translation should be ensured either by us or by the State Judicial Administration.
- Perhaps the Council will take care of translation internally since it will be established as an independent body with a separate budget? The State Judicial Administration that will provide organizational support to the Council’s activities of the council also seems to be more responsible for this...
- Judicial dossiers will be published anyway on the Commission’s website. So we will see who translates the documents and how it is done. Even if it is done by SJA, we will not stay away from the process. We must be sure that the dossier is translated into English properly – without gross errors.
- Will the Commission further regulate, together with the Public Council, the procedure for adoption of decisions regarding making recommendations to judicial candidates?
- The law sets out a clear cooperation procedure, which does not require an additional settlement. If one is willing to work, there will be no problem.
- Will the results and works of the candidates be disclosed and will it be possible to appeal against the Commission’s decisions?
- The Commission’s decision may be appealed to the Supreme Court. The possibility to go before the court and appeal against actions of a public authority is an inalienable constitutional right. As to the disclosure of practical exercises, there are certain limitations. Following the CCJE recommendations, we do not publish practical exercises. However, the candidate cannot be deprived of the legitimate right to publish his/her practical task on his/her own. It bears mentioning that the practical tasks will be assessed similarly under the same instruction. Each member of the Commission assesses independently a completed work that is available only in electronic format and disappears immediately after being evaluated. Even if in the future I understand that the work should have been scored higher, since it is better than the next ones, I will no longer be able to do this. The instruction says that in such case I should give lower scores to the next works.
- Don’t you think that eventual rotation of the Commission may complicate the process of the setup of the High Anti-Corruption Court?
- HQCJ members were elected under different laws. Thus, the Commission members elected by the Congress of judges in 2014 were elected under the law in the wording of 2010 and were appointed for a term of six years. The election of members in 2015 and 2016 were held under a new draft of the law, which provides for a 4-year term of office. The term of offices of the HQCJ members is established in the law under which they were appointed. That is, the members elected in 2014 will be working until 2020.
- The Commission holds a lot of procedures simultaneously: qualification evaluation of judges, staffing of first instance courts, and formation of the High Court on Intellectual Property. Do you believe that the workload may affect the quality of work?
- We try to avoid the quantity affecting the quality, especially in such procedures that are of importance for the whole country. No doubt, there is a lot of work to do. However, most time is spent for the check of practical tasks and preparation of regulations, and the check exercise cannot be reduced in time. Although, it is possible to slow down some other procedures. Today, we are holding the qualification evaluation of acting judges; we are completing a special checked under the procedure for selecting candidates who put on the short list in 2012–2013; we are getting prepared to hold a qualification test for those on the shortlist (the test being scheduled for October, when the assistants finish their training). Some one thousand candidates are about to take this examination (including judicial assistants and those on the short list). We are also completing the special check of candidates to the court on intellectual property, while in the meantime carrying out qualification evaluation of judges and interviews. We have not failed any of these activities, we succeed all of them – sometimes faster, and sometimes it takes more time.
- That is, the urgent problem of staffing of the first instance courts is put on the back burner...
- We cannot recommend appointing judges until we have a short list. To date, there is no candidate on the short list. The short list shall be formed on the basis of the qualification examination. Therefore, we cannot draw up the short list until the examination is completed. Only this year, the law allowed passing the examination to those who were put on the short list in 2012 and 2013. We could not hold the examination earlier. Now, we are actually completing the special verification of such candidates, there are almost 700 people. We are also completing the special check of the candidates selected on October 31, 2017. However, all candidates need to undergo 9-month training at the School of Judges. I hope that we will be able to draw up a short list by the end of the year. Again, everything depends on the check of practical tasks which usually takes a lot of time.
Maryna Yasynska
JURLIGA. – 19.06.2018
July 31, 2018
