In October, the lawyers should choose their representative in the High Qualification Commission of Judges of Ukraine (the HQCJ)
If earlier dissatisfaction with the public activists was caused by certain candidates to the Supreme Court or completion of the qualification test by the current ministers of Themis, then now the critical arrows flew towards those who are conducting the selection. Thus, a public request for the renewal of the High Qualifications Commission of Judges is being formulated. When can we expect this process to begin?
Competition for virtue
If you look at the staff of the HQCJ, you find out that half of the members are elected in 2014 in accordance with the procedure provided by the Law № 2453-VI “On the Judiciary and Status of Judges” of 07.07.2010. Among them, there is the Head of the Commission Serhii Koziakov, who is considered as the president’s protege.
During this time, the relevant law was changed twice, which eventually led to reduction in the powers of the commission. However, this does not detract from its role in the formation of the updated judiciary establishment. After all, to paraphrase a well-known expression: it’s not so important how a person passed the exam, the main thing is how the members of the commission will evaluate his subjective qualities, such as: virtue, morality, etc.
It was expected that the public council of virtue should help them. However, the results of the election to the new Supreme Court and the current qualification procedure caused a lot of criticism from the latter both to the commission as a whole and to its individual members. In particular, it was possible to hear accusations of violation of anti-corruption legislation, nepotism and appointment to a position within falsified documents.
For the sake of completeness, we will add to this the lawsuit initiated by one of the “virtuous” members regarding the new requirements of the regulations of the HQCJ. Thus, it seems that the easiest way to put an end to this conflict is to replace the “field players.” Taking into account the requirements of the legislation, this can happen already in the near future, and – only in a purely evolutionary way. And the chairman of the commission is the first on the list to “replace”.
As it is known, S. Koziakov was appointed a member of the HQCJ by the order of the Minister of Justice of 10.24.2014. After all, at that time, the latter was the subject of the formation of the commission staff. However, in 2015, he lost such a right, and his quota passed to the congress of lawyers.
The Law “On ensuring the right to a fair trial” of 02.02.2015 №192-VIII, which entered into force on 28.03.2015, determined that the HQCJ should include 14 members. In this case, they are elected or appointed for only one 4-year term. Without the right to remain in the commission for the second cadence.
In fact, the same configuration is also retained in Article 94 of the Law “On the Judiciary and Status of Judges” of 02.06.2016 No. 1402-VIII. It stipulates that 16 members are elected (appointed) to the HQCJ:
8 members – elected by the congress of judges of Ukraine;
2 members – elected by congress of representatives of legal higher educational institutions and scientific institutions;
2 members – elected by congress of lawyers of Ukraine;
2 members – elected by Authorized Representative of the Verkhovna Rada on Human Rights;
2 members – elected by the Head of the State Judicial Administration (the SJA).
Only the Ombudsman and the chairman of the SJA received an additional place. The term of office and restriction on re-appointment remained the same. However, for now, only one representative elected by the lawyers is present in the Commission (see table). After all, as noted, S. Koziakov came to the latter with the blessing of the Ministry of Justice.
In order for advocates to have a full representation, they were offered to wait for the expiration of the powers of the acting chairman of the HQCJ. And, according to the logic of the law No. 192-VIII, this should happen already in October this year. Although some uncertainties arose in this regard.
One cannot jump over the law
The HQCJ and the Presidential Administration pretend that the powers of S. Koziakov will last for several years more. And the stages of the so-called judicial reform will be implemented under his chairmanship: qualification, transfer from liquidated courts, selection to the Supreme Anti-Corruption Court, etc.
Their arguments are reduced to the literal understanding of paragraph 26 of section XII “Final and Transitional Provisions” of the Law No. 1402-VIII: members of the HQCJ, elected (appointed) to posts prior to the entry into force of this act shall exercise their authority until the expiration of the term for which they were elected (assigned). And, with reference to par. 2 of Article 92 of the Law No. 2453-VI, which provided for a 6-year Cadence of the members of the HQCJ, it is concluded that this term extends to those representatives who were delegated to the Commission in 2014.
Nonetheless, the law No. 1402-VIII did not abolish the provisions of the previous act. Instead, Section II of the “Final and Transitional Provisions” of the Law No. 192-VIII stipulates that the members of the HQCJ, previously appointed by the congress of judges, exercise their powers within four years from the entry into force of this law. This is the only category for which an exception is made and a specific date for the expiration of their mandate is determined – March 28, 2019. The remaining members of the VKKS are provided with a 4-year term of office beginning on the day of their appointment or election.
Consequently, according to the experts, one should proceed from the position of the legislator, the Ministry of Justice should not be the subject of appointment of the members of the HQCJ. And the law “On securing the right to a fair trial” clearly outlines the transition period for rotation.
Undoubtedly, one cannot jump over through a normative legal act in law enforcement, which, moreover, remains valid. Thus, par. 26 of section XII “Final and Transitional Provisions” of the Law No. 1402-VIII apparently refers to those members of the commission who were appointed (elected) after 28.03.2015. After all, at the time of its adoption, the new version of the Law “On the Judiciary and Status of Judges” was in effect. And it does not specify any other term of the authority of the members of the HQCJ than 4 years (or 28.03.2019 as the date of expiration of powers for representatives from the congress of judges elected in 2014).
In addition, if we adopt a different position, a paradoxical situation will arise: the members of the HQCJ elected by the congress of judges in 2015 will complete their powers sooner than the 5 colleagues who were delegated to the commission by the previous forum. And the legal right of lawyers to have their representative in the commission will be violated.
Thus, it can be concluded that the authority of S. Koziakov expires precisely in October this year. And his deputy – Stanislav Shchotka`s 4-year term expires already in December. But if it is easier for the SJAU chairman to make a substitution, then the Council of Advocates of Ukraine should already begin to prepare for the congress, in particular, for appointing a member of the HQCJ on its quota.