Draft bill #10140 of October 10, 2023
Cosponsors: a group of 19 MPs from Servant of the People and Holos factions with Denys Maslov as the first signatory
Status: under review by the dedicated parliamentary committee
Who is affected: judges, courts, the High Council of Justice (HCJ), the High Qualification Commission of Judges (HQCJ), and the Public Integrity Council (PIC)
Summary of the bill:
Selection procedure for a local court judge
- the selection procedure for a local court judge position will include the following stages:
- announcement of the selection of candidates for the position of local court judge
- submission of applications and documents by candidates
- candidates’ admission
- qualification exam
- special background check
- check of personal moral and psychological qualities (if the HQCJ decides it is necessary)
- approval of the rating of candidates for a position of local court judge
- inclusion of candidates in the reserve to fill in vacant positions of local court judges
- the transparency of the candidate selection for the position of local court judge will be ensured by the HQCJ
- the bill defines the criteria for the evaluation of the integrity and competence of judicial candidates
- the HCJ will approve the Unified Criteria for evaluating the integrity and professional ethics of a judge (judicial candidate) after consultations with the HQCJ, the Council of Judges of Ukraine, and the PIC
- the selection procedure will be optimized:
- there will be no selection exam
- special training will be replaced with initial training. It will be conducted after a person is appointed to the judicial position. A person appointed to the judicial position for the first time will undergo initial training at the National School of Judges of Ukraine for a period not exceeding two months
- special background check will be carried out after the qualification exam
- under the new procedure, the qualification exam will consist of tests on cognitive abilities, the history of Ukrainian statehood, general knowledge of law, tests and practical tasks on administrative, economic, and general (civil and criminal) law
- the HQCJ will approve only the general test program
- besides passing the qualification exam, a candidate will have to score at least 70% of the maximum score on each test and practical task. The HQCJ will additionally set a passing score that must be scored for admission to the next stage
- a person who has successfully passed the qualification exam but failed to get a passing grade and was turned down will be allowed to use their scores in the next selection announced within two years or take a new exam
- a person will be kept in reserve for two years. During this time, the person will have to submit asset declarations to the National Agency on Corruption Preventions
- judges of trial courts who want to transfer to another local court will be allowed to take a qualification exam with judicial candidates
- if candidates’ scores are equal, a person with more experience as a judge’s assistant will have an advantage
- the HQCJ will have the right to refuse to give a recommendation for the appointment of a judge if there is reasonable doubt about the candidate’s integrity
- the HCJ will have the right to refuse to transfer a judge based on the competition results only if there is an unfulfilled disciplinary sanction.
Lie detector for judges
- judicial candidates for the positions at appeal courts, higher specialized court, and the Supreme Court will be subject to a psychological lie detector test
- the decision to conduct a test will be made by the High Council of Justice (HCJ) if the PIC issues a conclusion that the candidate does not comply with the criteria of integrity and professional ethics
- the purpose of the test will be to obtain information about the reliability of the person’s answers to questions related to possible violations of law, their integrity, professional ethics, sources of their income, or other circumstances that may negatively affect the public trust in the judiciary
- it will be forbidden to ask questions that have no direct relation to the information contained in the judicial candidate’s file, or questions that are intimate or discriminatory in nature (including health status, religious or political beliefs, national or ethnic origin, etc.) or questions related to open court cases
- the test will be conducted only with the consent of the judicial candidate
- test results will be included in the judicial candidate’s file and treated as confidential. The results will not be disclosed, be stored for three years, and erased after that.
Public Integrity Council (PIC)
- the PIC will consist of 25 members. 5 of them will be nominated by the Business Ombudsman Council after being nominated by business associations
- the PIC will be involved in competitions for positions in local courts. No later than 30 days after the competition results are recognized, the PIC will check the winners based on the criteria of professional ethics and integrity and provide conclusions to the High Council of Justice
- PIC plenary meetings will require the presence of at least 16 of its members
- the PIC will have the right to issue a negative conclusion if there are reasonable doubts that a judicial candidate does not meet the integrity criteria
- judges will have the right to challenge the conclusions about their lack of integrity
- the conclusion about the lack of integrity will have to be approved by 2/3 of the current members of the PIC but not less than 12 votes
- if the PIC issues a negative conclusion on the candidate, the HCJ will still have the right to recommend the appointment of this candidate if such a decision is supported by at least 2/3 of appointed members of the Commission but not less than 9 votes
- from 2025, for all candidates who get a negative conclusion from the PIC during the competition the HCJ will arrange a lie detector test before submitting a request to the President about the appointment.
Transitional provisions
- the HCJ will evaluate whether the judge’s qualifications are adequate for his or her position. Judges are dismissed after the appointment term ends. After that, they will be appointed or transferred to a new court provided they successfully pass the evaluation test
- initial qualification evaluations initiated under the Law on Ensuring the Right to a Fair Trial and not completed on the day the draft bill comes into effect will be completed by the collegiums of the HCJ
- the HCJ will complete competitions for vacant judicial positions in appeal courts, announced by the Commission’s decision of September 14, 2023, 94/зп-23, according to the rules effective after the draft bill comes into force
- the HCJ will complete competitions for vacant judicial positions in local courts, announced by the decision of the Commission, under the rules that were in effect on the day the competition began
- competitively appointed judges will not be required to undergo initial training at the National School of Judges of Ukraine and will be recognized as judges after being included in the staff of the relevant court and taking the judicial oath
- judges approved by the HCJ after the competition for vacant judicial positions in local courts, announced by the Commission’s decision of September 14, 2023, 95/зп-23, will be excluded from the reserve
- the PIC’s members appointed on August 14, 2023, by the assembly of representatives of public associations will continue to exercise their powers after the draft bill comes into effect until the end of the term. Provisions concerning additional powers and status of the PIC and lie detector tests for judicial candidates that receive negative conclusions from the PIC will be enacted after August 15, 2025.
What is right:
- the bill significantly simplifies the existing procedures for the judicial career and adapts them to current requirements and challenges. It will be easier to fill in the vacant judicial positions. Currently, there are 2,079 vacant judicial positions
- a unified competitive procedure for both judicial candidates and judges who intend to transfer to another local court will increase the transparency of the process
- the bill fulfills one of the requirements of the Memorandum between Ukraine and the European Union on macro-financial assistance worth EUR 18 billion.
What is wrong:
- it is doubtful whether a lie detector test should be introduced as a part of the selection procedure. The effectiveness of such tests is not proven and therefore there is no reason to use them
- there is no justification for allowing business associations to nominate candidates for the PIC
- if the PIC is involved in competitions for positions in local courts, there is a significant risk that it will not have enough capacity to do its job and competitions will be put on hold.
Background information: on June 30, 2023, a presidential decree enacting the decision of the National Security and Defense Council of Ukraine of June 23, 2023, On Accelerating Judicial Reform and Overcoming Corruption in the Judiciary System came into effect. This decree ordered the legislator to prepare amendments to laws regarding effective and transparent qualification evaluation of judges and the possibility of introducing periodic psychological lie detector tests of judges.
How to help the legislator:
Proposals concerning the draft bill can be sent to the Verkhovna Rada Committee on Legal Policy: [email protected]
Additional information: