Problem

For a long time, society has been expressing distrust in a number of justice system authorities. The main factors that influenced the level of trust in such agencies were doubts expressed in the mass media about the integrity of their members and the possibility that they made decisions in the conditions of conflicts of interest.
To build trust in judicial authorities and to fulfill Ukraine’s international commitments, the Laws of Ukraine On Amendments to the Law of Ukraine On the Judicial System and Status of Judges and Select Laws of Ukraine on the Restoration of the High Qualification Commission of Judges of Ukraine and On Amendments to Select Legislative Acts of Ukraine on the Procedure for Election (Appointment) of Members of the High Council of Justice and the Activities of Disciplinary Inspectors of the High Council of Justice were adopted in 2021.
To a large extent, the relevant provisions have already been implemented: the Ethics Council and the Competitive Committee for the Selection of Members of the High Qualification Commission of Judges of Ukraine have been established and are now functioning; a one-time evaluation of the current members of the High Council of Justice for compliance with the criteria of professional ethics and integrity as an eligibility criterion for holding the position of a member of the High Council of Justice was conducted; the powers of one member of the High Council of Justice, in respect of whom the Ethics Council issued a conclusion on non-compliance with the above criteria, were terminated. In addition, to form a new composition of the High Qualification Commission of Judges of Ukraine, the Competitive Committee for the Selection of Members of the High Qualification Commission of Judges of Ukraine was established and has already begun its work.
At the same time, the following issues remain unresolved:
the formation of the new composition of the High Council of Justice and the High Qualification Commission of Judges of Ukraine has not been completed. That is why the European Commission’s opinion on Ukraine’s application for membership in the European Union recommends that “the Ethics Council should complete the verification of the integrity of candidates for the High Council of Justice and select candidates for the High Qualification Commission of Judges of Ukraine”. At the same time, the public criticized the lack of transparency in the activities of the Ethics Council;
the existing mechanisms for preventing and resolving conflicts of interest in the activities of members of the High Council of Justice and the High Qualification Commission of Judges of Ukraine were not effective in practice and thus failed to prevent actions or decision-making in conditions of a real conflict of interest. For example, the provisions of part two of Article 351 of the Law of Ukraine On Prevention of Corruption stipulate a general rule that in case of a real or potential conflict of interest of an official performing the functions of state or local self-government or person in equivalent capacity who is a member of a collective body (committee, commission, board, etc.), they have no right to participate in the decision-making process of this body. At the same time, pursuant to Article 100 of the Law of Ukraine On the Judicial System and Status of Judges, the recusal of a member of the High Qualification Commission of Judges of Ukraine in respect of whom there is evidence of a conflict of interest is not unconditional – the decision to recuse (self-recuse) is made by a majority vote of the members of the High Qualification Commission of Judges of Ukraine participating in the meeting. A similar provision also exists with respect to the procedure for consideration of recusal by members of the High Council of Justice (part five of Article 33 of the Law of Ukraine On the High Council of Justice). However, in practice, there may be situations when all members of the High Council of Justice or the High Qualification Commission of Judges of Ukraine will have the same private interest or when the statement of the fact that a conflict of interest exists will lead to the loss of the ability to make relevant decisions;
in practice, there have been problems with the validity and transparency of scoring and decision-making in the High Council of Justice and the High Qualification Commission of Judges of Ukraine during the process of selection of judges of evaluation of their qualifications. For example, during the evaluation of qualifications of judges, the High Qualification Commission of Judges of Ukraine did not specify the number of points assigned separately for each of the ten indicators prescribed by the regulation on the qualification evaluation, making it impossible for the public to control the evaluation process.