The election of judges of the Supreme Court does not necessarily mean the start of the Court’s operation. Four conditions for launching the Supreme Court

8 months of the competitive selection, examination, practical tasks and tons of papers of dossiers for candidates to the Supreme Court. As a result, the High Qualifications Commission of Judges identified 120 winners from total of 653 applicants and submitted documents to the High Council of Justice. The High Council of Justice, in turn, recommended to the President 111 new candidates to be appointed as the judges of the new Supreme Court, of which 25 received negative conclusion from the Public Integrity Council. The next step should be the signature of the President. Just to remind, the Supreme Court should become the new highest judicial body created as part of the judicial reform to replace the old Supreme Court of Ukraine and the three higher courts.

Competition to the Supreme Court has been ongoing since November 2016. During this period, the High Qualifications Commission of Judges collected and processed the documents of candidates, conducted a written examination, examined moral and psychological qualities, processed the candidates’ files, interviewed the people and considered the conclusions of the Public Integrity Council on the candidates in terms of their integrity and professional ethics in plenary sessions. At each stage, some applicants were excluded and ultimately, the Commission has selected 120 winners of the competition among the shortlisted candidates who led the ranking. The High Council of Justice, in turn, refused recommendations for appointment to only two candidates; the decision on seven candidates was suspended for an indefinite period of time. At the same time, among the candidates, whom the Public Integrity Council put “on pause”, there were four with negative conclusions from the Public Integrity Council and three without such. Moreover, among them was judge Viktoriia Matsedonska, who at the Yanukovych time, tried to oppose the system and expressed her opinion about the decision of her colleagues to ban the peaceful assemblies in the capital during the EuroMaidan.

It would seem that the last stage of the creation of a new Supreme Court is the signature of the President of Ukraine. However, the election of judges of the Supreme Court, which, according to law, must take place before 1 April 2017, does not automatically mean the beginning of operation of the highest court. The Law on Judiciary and the Status of Judges stipulates that the old Supreme Court of Ukraine and the higher courts will be liquidated after a new Supreme Court is elected and the procedural law regulating operation of this yet the Supreme Court comes into force. Analysing the procedural part of the process for establishing the Supreme Court, we can identify several very important conditions for the start of its operation.

Condition 1 – New procedure codes. Theoretically done.

In order for the elected judges of the new Supreme Court to be able to administer justice, the legislators laid down one important condition in the law – adoption of amendments to the procedure codes (criminal, civil, administrative, commercial, as well as to the code on administrative offenses) that regulate the procedure for reviewing cases by the Supreme Court. In March 2017, the President transferred to the profile Committee draft amendments developed by the Judicial Reform Council. In April, another draft law was submitted by Alona Shkrum, a people’s deputy of Ukraine. The main idea of ​​the change was to streamline the legislation and adapt it to the operation of the new Supreme Court. On 20 June 2017, the Verkhovna Rada adopted in the first reading amendments proposed by the President. With the beginning of the new session, the parliament has started considering the matter, but it lasted a month, and on 3 October, the Verkhovna Rada adopted the law, supporting the package and amendments that introduced gravely adverse changes to the procedural law. Adoption of the law by the Verkhovna Rada of Ukraine does not mean that it will come into force, since the President of Ukraine, in accordance with the Constitution of Ukraine, has the right to veto. In general, according to experts, the draft law considered by the Council envisages a number of progressive changes but a significant number of provisions of the draft law prepared by the profile committee before the second reading increase the risks of corruption, substantially impair the situation with openness of justice and protection of the right to a fair trial. The civil society has recently called upon the members of parliament to not adopt this version of the law. However, despite the calls and warnings of the civil society, the draft law was passed in parliament with amendments introduced by the profile committee, including the scandalous “Lozovoy’s amendment”.

Condition 2 – Establishing administration of the Supreme Court

The election of Court judges means only that we will receive the judicators but not fully operating Supreme Court. To be fully operational, the Supreme Court, among other things, has to form the administration, which will provide the organizational support to operation of the new body. The Regulation on the Supreme Court’s administration is to be adopted by the Plenum of the same Supreme Court, which will be convened after the composition of the court is finalized by an organizational committee. The law provides for 30-day period for the Organizing Committee to convene the Plenum, but in reality, the judges of the Supreme Court may actually convene much later. In addition, basic infrastructure in needed to ensure the opportunity to at least gather the Plenum of the Supreme Court.

Moreover, in order to launch legal mechanisms, the new Supreme Court must be registered as a legal entity, which also needs time. At the same time, for reasons of sound logic, the existence of two almost identical institutions – the Supreme Court and the Supreme Court of Ukraine – is unacceptable, hence the need for the early elimination of the old bodies.

In forming the administration of the new Supreme Court, key state stakeholders will be the State Judicial Administration and the High Council of Justice. After appointing the judges of the Supreme Court, the State Judicial Administration (SJA) must appoint the acting head of administration of the new Supreme Court. What criteria will be used and how he/she will be appointed remain to be seen. It is he / she who must register the Supreme Court as a legal entity. The High Council of Justice, in its turn, has already established the Commission on the Senior Civil Service in the justice system, which should take care of the competition for “A” category civil servants that is, for the head of the staff and his/her deputies in the new Supreme Court on a permanent basis. The Commission has already included 2 representatives of the High Council of Justice, the High Qualifications Commission of Judges and the Council of Judges of Ukraine; also, 3 newly elected judges of the Supreme Court must be included to the Commission.

An open and transparent competition must be held for the appointment of the head of the Supreme Court’s administration. After conducting such a competition, the head of administration of the Supreme Court should appoint the Head of the State Judicial Administration in agreement with the Chairperson of the Supreme Court. It should be noted that according to the law on the judicial system and the status of judges, the selection of other employees of the court’s administration also takes place on a competitive basis. However, the heads of administrations of higher courts that still operate, in their comments to CHESNO.Filter the Judiciary!, suggested the possibility of transferring “B” and “C” category civil servants from the Supreme Court of Ukraine and higher courts without a competition, as part 5 Article 22 of the law on public service states that in case of liquidation of a state body, a civil servant is transferred to an equivalent or lower (upon his/her consent) position in a state body to which the powers and functions of such a body are transferred, and it is carried out without the mandatory competition. Obviously, this rule is used in the formation of administration of the new Supreme Court to launch it as soon as possible.

However, the formation of administration of the new Supreme Court without proper competition will mean that the representatives of the old corrupted judicial system from among the staff of the Supreme Court and the higher courts will be able to access the superlative adjudication processes. That is why, when selecting judges of the new Supreme Court in an open competition, the administration of this court must use the same open competition for civil servants as well.

Condition 3 – transfer facilities and equipment of the liquidated Supreme Court of Ukraine and higher courts

The Law on the Judiciary and the Status of Judges states that the new Supreme Court is created on the material and technical basis of the Supreme Court of Ukraine and the three highest courts of the High Specialized Court of Ukraine for the Examination of Civil and Criminal Cases (HSCU), the Supreme Economic Court of Ukraine (SECU) and the High Administrative Court of Ukraine (UASU). It means that at least the premises of these courts should be transferred to the Supreme Court.

For this purpose, the Cabinet of Ministers of Ukraine by the same law on the judiciary and the status of judges, instructed to ensure accommodation of the Supreme Court in the premises vacated after the liquidation of the Supreme Court of Ukraine, HSCU, SECU, UASU within one year after the Law enters into force. However, the process of liquidation of these courts will only begin when the President signs a decree appointing judges of the new Supreme Court. It means that after this, only the preparations for liquidation will start, which will include the establishment of liquidation commissions, inventory of property, archiving and transportation of court cases and funds. Completing liquidation procedures in four institutions simultaneously may take a lot of time and will slow down the launch of full operation of the newly formed Supreme Court.

In addition, we should not forget about the existence of alternative opinions regarding the elimination of higher specialized courts and the Supreme Court of Ukraine. In particular, in the opinion of the chairman of the Supreme Administrative Court, the special law should be adopted for liquidation of a higher specialized court, the draft of which must be submitted by the President of Ukraine upon consultation with the High Council of Justice. Thus, even after creation of the new Supreme Court, there is a risk of its work being blocked due to the lack of detailed procedures for the elimination of higher courts and the Supreme Court of Ukraine.

Condition 4 – The Budget.

The operation of any body or structure needs funds in the budget – for the salaries of judges, employees of the administration, for the maintenance of premises, office, etc. Judges of the newly formed Supreme Court, according to the reform, must receive a very decent wage, which, depending on seniority and other pricing factors, can reach $9,000-10,000 in Ukrainian hryvnia equivalent.

However, the state budget for 2017 does not provide funds for the new Supreme Court. Instead, more than 1 billion hryvnias were budgeted for salaries of judges and court employees, as well as for payment for necessary services for maintenance of the premises of the Supreme Court of Ukraine. Almost UAH 149 million will be spent on the High Economic Court, about UAH 138 million – on the High Specialized Court, and UAH 96 million – on the High Administrative Court.

Thus, in order to secure the funds for the newly created Supreme Court, it is necessary to decide on the transfer of budget allocations to the Supreme Court or adopt an additional law on amending the State Budget of Ukraine. In any case, the decision to secure the funding for the newly created court will require time due to bureaucratic obstacles.

Thus, the election of judges of the new Supreme Court, as it turned out, does not automatically mean the beginning of operation of this court. The main condition for the start of work will be the political will to make changes to the budget and secure funding for the new institution, and, secondly, to eliminate the old higher courts and the Supreme Court of Ukraine, and to create a new Supreme Court’s administration on a competitive basis. All this can become real, if the authorities are willing to launch the long-awaited Supreme Court as soon as possible and as efficiently as possible.

The text is published on the resource “Leviy Bereg” (“Left Bank”)