We talked to Eurojuris member Vitaly Tytych, of AC Vitaly Tytych & Partners, who was elected as coordinator of the newly established Public Integrity Council (PIC). He tells us about the current situation of the judiciary reform in the Ukraine and the need for assistance.
After numerous failed attempts of anti-corruption measures and the eagerly-anticipated judiciary reform, the Ukrainian Parliament passed a new law ‘On the Judiciary and the Status of Judges’, back in June 2016. In order to tackle the problem of lacking confidence in the Ukrainian judiciary and deficient effective integrity checks, the law established the Public Integrity Council (the PIC).
According to the Law, the PIC assists the High Qualification Commission of Judges of Ukraine (the HQCJ) in determining the compliance of a judge (a judicial candidate) with the criteria of professional ethics and integrity. At the moment, the PIC consists of 17 members: 15 lawyers and 2 journalists.
The HQCJ is a judicial council comprised mostly of judges elected by judges. To this day, its 16 members are 50% former judges elected by judges. The Law ‘On the Judiciary and the Status of Judges’ has partially changed its composition: the Ombudsman of Ukraine and the Head of State Judicial Administration of Ukraine appoint 4 members.
Before, according to the Law ‘On ensuring the right to a fair trial’, it consisted of 14 appointed members: 8 members elected by the Congress of Judges of Ukraine, 2 members elected by the Congress of Representatives of law schools and research institutions, 2 members elected by the Congress of Lawyers of Ukraine, 1 member appointed by the Ombudsman of Ukraine and 1 member appointed by the Head of State Judicial Administration of Ukraine.
Now, what’s the PIC’s role? The PIC collects, verifies, and analyses information on a judge (a judicial candidate) and provides its findings to the HQCJ. These findings regarding professional ethics and integrity criteria are included in the judicial dossier.
However, the PIC’s role in the assessment of a candidate’s integrity is solely consultative. The final decision is made by the High Qualification Commission of Judges because the Commission may overrule a negative opinion of the PIC only by two-thirds, in this case, 11 votes out of 16.
Vitaly expresses great concerns, ‘unfortunately, the PIC can neither guarantee that no corrupt or ineligible judge remains seated nor that no such gets appointed. As of today, the HQCJ can overrule a PIC opinion with a two-thirds majority, and while this may sound like a lot, it is not. The results of the Supreme Court competition show that most of PIC opinions were easily overruled. 25 out of 113 newly appointed Supreme Court Justices do not meet the integrity criteria according to the PIC. The indisputable facts of the dishonest behaviour of these candidates were simply ignored by the HQCJ and the High Council of Justice.’
Giving an example Vitaly further explains the problem: ‘according to Art. 85 of the Law of Ukraine ‘On the judiciary and the status of judges’, the High Qualification Commission of Judges shall guarantee that the selection process is transparent. But yet, the voting within the HQCJ is not public.’
He continues, ‘the PIC and other representatives of the civil society have already demanded the disclosure of the candidates’ ranking, as well as the individual scores and votes of each member of the Commission in case the PIC’s opinion is overruled. However, the HQCJ rejected to publish the results of the voting by each member. Vitaly is certain, ‘the only way to change the voting procedure is to regulate it by law.’
One year after the establishment of the PIC Vitaly tries to give a short resume: ‘so far, the PIC has delivered the opinion of non-compliance with the criteria of integrity and professional ethics in 134 cases (candidates within the Supreme Court competition). Thereof 76 opinions were overruled. The following difficulties are persistent: 1) the absence of an effective cooperation between the PIC and the HQCJ, 2) the PIC’s lack of power in the decision-making process, 3) the PIC’s lack of resources.
Nonetheless, Vitaly underlines, ‘the establishment of the PIC should be considered as one of the most progressive steps of the Ukrainian judicial reform. It remains the only chance to renew the Ukrainian judiciary whilst the HQCJ and the High Council of Justice are protecting the old system.’
Addressing all Eurojuris members, Vitaly stresses, ‘it would be extremely helpful to receive assistance. We are searching for colleagues with experience in the ‘evaluation of judges’, ‘judge integrity’ or ‘the involvement of civil society in the evaluation of judges’. Advice, opinions, best practice or similar are highly welcome!’
For background information, please see the document ‘Renewal of the judiciary’, which can be found on the Eurojuris website:
www.eurojuris.net/en/node/44409
AC Vitaly Tytych & Partners
www.tytychpartners.com.ua
