First selection of judges under the new laws already demonstrating flaws
In the nine months since the new Law on the Judicial System and the Status of Judges came into force, no judges have yet been chosen and appointed according to the new procedure. This selection now envisages a selection exam before the High Qualifying Commission of Judges, a six-month special training course for candidates after which they take their qualifying exam. The results of the latter form the basis for their future appointment to vacant posts. There are, moreover, a very large number of vacancies. Just in the general courts at local level 700 judges are needed, with dozens, if not hundreds, also needed to fill empty posts in local specialized courts.
The new procedure for selection of candidates for their first appointment is fairly progressive and elicited the least number of comments from the Venice Commission which back in October 2010 gave a generally critical assessment of the Law As long as this procedure is followed conscientiously, it can ensure objective selection.
The thing that caused the most warranted concern from the Venice Commission was the fact that the special training for future judges was partly entrusted to higher law institutes within the Ministry of Education, and partly to the National School of Judges. According to European standards such training should be provided by an autonomous institution functioning within the judicial system and under the control of judges. Only perhaps the National School of Judges could fall into that category with this not being a Ministry of Education institution, but controlled by the High Qualifying Commission of Judges.
However Ukraine’s legislators adopted a law at the beginning of the year which purported to “take into account the comments from the Venice Commission”, but in fact did the exact opposite. The special training is now totally entrusted to higher educational institutes which are to be appointed by the High Qualifying Commission of Judges. It is possible that the first judges within the new system could avoid this training since parliament deferred the entry into force of the requirements regarding training until the passing of a special decision by the High Qualifying Commission of Judges which has yet to emerge.
An undoubted plus of the new Law was the fact that the first exams – selective and qualifying – are to be held as an anonymous written test. The first of these has been set by the High Qualifying Commission of Judges for 22 May. 3, 430 candidates from the 3, 593 who submitted applications, have been allowed to take the exam. It is anticipated that the test will be held at the same time in four different places – in universities in Kyiv, Lviv, Odessa and Kharkiv, under the control of the High Qualifying Commission of Judges. The tests will contain 100 questions, with these supposed to become known only during the test.
The programme by which the test questions were fixed and which should be used when preparing was approved in advance by the High Qualifying Commission of Judges and posted on its website (http://vkksu.gov.ua/userfiles/4.doc). However an analysis of this programme arouses concern as to its quality and therefore the ability of the test tasks to objectively judge “general theoretical knowledge in the field of law and sift out the really professional lawyers and remove those who are worse.
Positivism and the Convention
From the exam programme it would seem that the High Qualifying Commission of Judges sees future judges as unthinking machines for applying the law who are supposed to follow the dry letter of the law and not apply it creatively taking the principles of the rule of law and its aims into consideration.
Legal positivism, and not natural law, forms the dominant concept which the candidates are expected to have knowledge of. The title of the relevant section is enough to convince one of this: “The Concepts of Law. Positive Law”. In fact only one question pertains to the concept of law (“The Understanding of Law: Fundamental contemporary approaches”). All the rest check knowledge of the postulates of positivism. Within the framework of the section of questions on the theory of law the single principle which candidates for the post of judge need to know is not even the rule of law, but legality.
Admittedly, contrast to the concept of legal positivism is provided by the section devoted to the European Convention on Human Rights and European Court of Human Rights case-law. The fact that this section is there is an undoubted achievement. However even here candidates are required to know only those human rights enshrined in the Convention which pertain to the sphere of criminal justice and civil law. The rights which the courts often deal with in the area of administrative legal proceedings are for some reason not given a mention. This involves the right to free elections, the right of association, to freedom of peaceful assembly, etc. Was this by chance or a deliberate choice?
It is also surprising that as part of the criminal process candidates will only need to know Item 1 of Article 6 of the Convention which also concerns other types of legal proceedings. The next two items of this Article relate specifically to the rights of a person accusing of committing a criminal offence – the presumption of innocence, the right to information about the charges, the right not to testify against themselves, the right to defence, to an interpreter, the right to question witnesses, etc. In general the attempt by those drawing up the programme to divide articles of the Convention according to spheres of legal regulation and legal proceedings is not ideal since one and the same right may be infringed or defended in various types of court proceedings, whether we are talking of the right to peacefully enjoy ones possessions or the right to freedom of expression, and so forth.
The judiciary – the executive?
It is incredible that the issue of the judiciary and status of judges should, together with the Prosecutor’s office, be placed in the section of the programme on “Administrative law”! Yet maybe all those taking the exam know that administrative law regulates relations in the sphere of executive power and local self-government, in other words, public administration. If the High Qualifying Commission of Judges which is mostly made up of judges, with the others being academics, thinks that the judiciary and judges are attached to the executive branch of power, maybe this is really how it is, especially following the judicial reform of 2010.
And the course designers also managed to “merge” the courts with the police, the Security Service and bodies of the Ministry of Justice, lumping them all together as “Court and law enforcement bodies”.
It is also symbolic that they didn’t find room in the programme for the issue of judges’ duties, their responsibility for not fulfilling them, nor for the issue of the rights of judges and the guarantees of their independence. Do future judges really not need to know these things?
The series of questions on the Prosecutor seem taken straight from a Soviet, or maybe from a Russian textbook. The series opens with the issue: “Prosecutor supervision over adherence to the law in Ukraine”, only after that mentioning the “Functions of the Prosecutor”. As though supervision was their main function! According to European standards, the Prosecutor’s main function is to take part in criminal proceedings as the prosecutor, with no general supervision. The latter is from, first Tsarist, then Soviet, times. Ukraine has not moved far from that despite the fact that the Constitution, back in 1996, restricted Prosecutor supervision to the area of criminal justice. The changes to the Constitution in 2004 which effectively returned the Prosecutor their overseeing role, albeit in a more attractive form, were found to be unconstitutional last year. It is also interesting that of four functions mentioned in Article 121 of the Constitution the programme only demands knowledge of three of them.
Unfortunately, the programme is teeming with legal terms, concepts, provisions which are no longer used in current legislation. For example, as part of constitutional law the candidates are required to know what State committees as central bodies of executive power are, although these were dissolved in accordance with last year’s Presidential Decree on Optimization of the System of the Central Bodies of Executive Power.
The author cites a few other examples, and notes that both the section on civil proceedings and that on labour legislation refer back to knowledge which would have been relevant for graduates in the 1990s, however a lot has changed since that time.
Public control and the interpretation of results
It should be noted that the activities of the High Qualifying Commission of Judges are more open than the previous system of qualifying commissions of judges. This has been achieved thanks to the fact that journalists are admitted to the Commission’s sessions, as well as to their official website. vkksu.gov.ua.
Unfortunately, by passing on 21 April this year Regulations on Procedure for Anonymous Testing of Candidates for Judges’ Posts, and the methodology for assessing the test, the High Qualifying Commission of Judges failed to ensure transparency of all stages of the test. Openness of information is declared only with respect to the test’s results. The possibility for members of the press and the public to be present when the test booklets are being printed (obviously without being able to see their contents), their transportation to the test location, the actual procedure for the testing and establishing of its results is not envisaged. This seriously reduces the level of trust in the results themselves.
It is also unclear how exactly the successful candidates will be determined, and which are excluded at that stage. There is no indication in the Regulations of the number of marks constituting the minimum required, nor how the number of candidates permitted to pass to the next stage will be determined. The High Qualifying Commission of Judges is supposed to determine the number of marks needed taking into consideration:
- the predicted number of vacancies;
- the overall number of candidates taking the test;
- the results of anonymous testing.
Yet how these criteria are to be taken into consideration is left to the Commission’s discretion. This makes it possible, should they feel the urge, to either raise or lower the pass rate depending on the “need” to give the red or green light to specific candidates.
It is also not clear at present what further tests will await successful candidates. If the special training programme is not brought in (and that is most likely the case) then the question arises of what will be tested during the next, qualifying, exam. After all its real aim is supposed to be to check special knowledge, skills, and abilities needed for a future judge which have been gained and developed during the special training.
An analysis of the first selection of judges according to the new Law on the Judicial System and the Status of Judges makes it possible to identify both positive and negative elements.
1) the introduction of centralized competition according to standardized criteria and on a single methodological basis;
2) selection on the basis of anonymous testing;
3) relatively full information about the selection procedure on the website of the High Qualifying Commission of Judges.
1) a flawed programme of testing at times based on faulty methodological principles which casts doubt over the possibility of achieving its aim, that being the objective assessment of candidates’ knowledge in the area of law;
2) lack of transparency regarding the procedure for carrying out the testing, no possibility for public control;
3) lack of clear criteria for success in taking the test which makes it possible to manipulate its results;
4) failure to create a system of special training of future judges in accordance with European standards.
If the High Qualifying Commission of Judges does not succeed in overcoming the above-mentioned risks then the achievements made will lose any sense and the results of the first intake of judges according to the new procedure will not arouse trust.
Deputy Head of the Board of the Centre for Political and Legal Reform
Slightly abridged from the original article