Opinion of the Council of Europe: only the HQCJU can evaluate the candidates for the position of a judge
The assessment of a judge and a candidate for the position of a judge regarding their professional knowledge and competence, the moral, ethical and psychological integrity is the exclusive task of the HQCJU.
The opinion of the Public Integrity Council (the PIC) is an element of the qualification assessment concerning the issues of professional ethics and integrity of the judges and candidates. This is stated in the Opinion of the Council of Europe regarding the Rules of Procedure of the PIC presented on June 12, 2017, in Kyiv. Mrs. Diana Kovatcheva, the International Expert of the Council of Europe, Doctor of Law, Professor, is the author of the Opinion.
The Expert Opinion is based on the matters of authority, composition, and opinions of PIC as well as the procedures of assessment in the context of standards of the Council of Europe on the independence and accountability of judges.
The document states that PIC facilitates the work of the HQCJU in matters of evaluation and cannot adopt the final decision on the integrity or the professional ethics of an individual judge. This provision meets the European standards and, in particular, § 37 of the Opinion No. 3 of the Consultative Council of the European Judges: “In order to provide the necessary protection of the judge’s independence the evaluation shall be conducted mostly by the judges themselves”.
“The European standards do not prohibit the experts who can make a useful contribution to the process of assessment to take part in it, but their role can be advisory only, not decisive”, – stated the Expert of the Council of Europe.
Analysis of the provisions of the Rules of Procedure of PIC revealed the discrepancy between the authorities of PIC, provided by law, and those established by the Rules of Procedure of PIC. In particular, the Rules of Procedure of PIC does not contain any clear and objective criteria based on which it can be concluded about the non-compliance of a judge (a candidate for the position of a judge) with the standards of integrity and ethics. “Opinions of PIC shall be reasonable, and the unverified information shall not be used or be included in the text of the opinion during their preparation”, – stated in the Opinion of the Council of Europe.
It is noted that it is very important to exclude those factors which may affect the independence of judges during the various evaluation procedures. The PIC has right only to analyze and verify information concerning the integrity and professional ethics of judges but does not have the competence to consider the validity of court judgments. In particular, it is mentioned that “the system of appeal is the only way the judges can be held responsible for their decision, except for cases when the judge was acting unconscionably” (§ 23 of the Opinion of the CCEJ No. 18).
“We understand the purpose of creation of the PIC, but the involvement of civil society in the procedure of the qualification assessment can lead to certain consequences, that is why there should exist the preventers of influence on independence of the judiciary”, – noted Ms. Hanne Yunker, the Head of the Department of Justice and Legal Cooperation of the Council of Europe during the presentation of the Opinion.
“I would like to suggest that the information and the opinion of the PIC were related to the compliance or non-compliance of the judge with the criteria of the professional ethics and integrity, but not their reputation”, – stated Ms. Diana Kovacheva. She also added that the general conditions and methods of evaluation shall be known to the society, however, the process of individual evaluation shall not take into account the public opinion regarding the judge.
The standards of the Council of Europe also state that in case of the negative opinion of the PIC the candidates for the position of a judge shall be granted the right to defend themselves and to provide the explanations, additional documents and the evidence before the information used during the assessment is included in the final opinion of the body which carries out the assessment and before its publication.
In the Opinion of the Council of Europe, it is underlined that the observance of the principle of independence of the judiciary requires the observance of the general rule that the practitioners (lawyers) and the prosecutors cannot participate in the process of evaluation of judges. According to the standards of the Council of Europe, the individual evaluation of judges shall be carried out by judges elected by the other judges.
Turning to the working procedure of the PIC, Mr. Stanislav Shchotka, the Secretary of the Qualification Chamber of the Commission, underlined that “if there is methodology it is clear to all the participants of the procedure which requirements will be set and which standards will be implemented. When there are rules, the third-party observer can understand how professionally the work has been done and whether there is any subjectivity”.
