On October 16, 2019, Members of Parliament supported amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" and some laws of Ukraine on activities of judicial authorities (Law №193-IX) initiated by the President. On November 7 these amendment came into force.
The new law
introduced mechanism for restarting the HQCJ and the HCJ with the participation of international experts who previously had played the key role in selection of judges to the High Anti-Corruption Court. In particular, international experts had to be included in:
● Competition Commission for the open competition for positions to the HQCJ; and
● Ethics Commission (in the law - Commission on Integrity and Ethics), which should have checked members of the HCJ regarding integrity and initiate the dismissal of those who do not meet the criteria.
According to the law, the HCJ should have confirmed the composition of Commissions on the ground of proposals from nominees until February 5, 2020. Moreover, by this time the Competition Commission should have completed the competition to the HQCJ.
However, none of commissions was created. International and foreign organizations sugested
three experts to the Ethics
Commission on November 28, 2019. In turn, the HCJ should first update its own Rules of Procedure, supplement it with provisions on the procedure for delegating members to the Ethics Commission, delegate three members and confirm the composition of the Ethics Commission. Instead, during three months foreseen by the law the High Council of Justice neither amended Rules of Procedure nor delegated three members to the Commission.
On February 5, member of the HCJ Oleksiy Malovatskyi stated
that the HCJ did not comply with the law regarding establishment of the Ethics Commission, as the Constitutional Court was considering the appeal on constitutionality of provisions of this law at that time. At the same time, no legal act provides the right to the HCJ not to comply with the law. On the next day, February 6, the HCJ approved
the decision on impossibility to establish the Ethics Commission. It is noteworthy that the reason of the HCJ was not its own inaction, but the lack of candidates from international and foreign organizations. The HCJ manipulated with the text of the law, namely: international and foreign organizations could nominate experts to the Commission, while the HCJ referred to the list of exclusively international organizations.
Commission was also not created, as the HCJ violated the law by its own act and determined additional requirements regarding international experts - members of the Commission. Thus, on December 10, 2019, the HCJ approved provision
on the Competition to the HQCJ, which forced international experts to submit in writing to the HCJ copies of documents confirming their education and relevant professional experience. In addition, the HCJ determined in details how experts should evaluate candidates to the HQCJ and obliged them to give preference to candidates-judges.
International and foreign organizations called on
the HCJ to reconsider the provision, and temporarily refrain from nominating experts. However, the HCJ refused to cancel illegal provisions. Moreover, the HCJ accused
the legislator of this, stating on its website that international organizations did not nominate experts to the Commission due to the "unclear" law.
Thus, due to inaction and sometimes active opposition of the HCJ, neither Competition nor Ethics Commission was established. Despite the need to fill about 2,000 vacant judicial positions, the High Council of Justice blocked the Competition for positions of members of the HQCJ.