April 29, 2019
By Kanstantsin Dzehtsiarou (University of Liverpool)
As I have predicted in my previous blog post on this issue, the campaign for election of a judge in Ukraine has already proved to be a good case study illustrating the challenges that the Council of Europe institutions have to confront. These challenges now mainly result from poor national practices which might lead to suboptimal lists of nominees which in turn have to be rejected by the Council of Europe. These rejections always lead to delays in appointment of new judges for the Court. Luckily, the ECHR does not have the rule that the judge whose term is over cannot sit on the bench. Otherwise, these delays could have been effective in sabotaging the work of the Court. In any event, it is already fair to say that the Ukrainian national selection procedure reflects very bad national practices. On 4 March 2019 the president of Ukraine established an ad hoc selection committee; last week (week commencing on 22 April 2019) it announced the competition. The details of these announcements suggest that the Ukrainian authorities aim to limit the possible pool of candidates as much as possible in order to avoid real competition.
The competition was effectively announced on 22 April 2019; the deadline for submission of the application documents was set on 26 April 2019. The term of the current judge elected in respect of Ukraine is expiring very soon but this fact cannot justify the Ukrainian authorities reserving only one week for submission of the documents. The whole situation is of their own making; they could have started the selection procedure months earlier. This extremely short period clearly contradicts the Guidelines of the Committee of Ministers on the selection of candidates for the post of judge at the European Court of Human Rights, which clearly state that a reasonable period of time should be given for the submission of applications. A week during the Easter break, when many potential candidates are away from their offices can hardly be considered reasonable. Moreover, the sheer number of documents required to submit within a week clearly shows that the authorities are not trying to open this competition to as many good candidates as possible. One can speculate that those close to the presidential administration were informed about the timing prior to the announcement. The requirements of the competition can only be effectively fulfilled by those who knew about the conditions of the competition in advance.
It is also unreasonable to expect a potential candidate to submit a significant number of documents some of which need to be officially confirmed by a notary. A potential candidate needs to submit her CV in a particular form, her application form, and her motivation letter. These documents can arguably be presented within a week. However, apart from these documents the applicant needs to submit her diploma of higher education obtained in Ukraine which is confirmed by the notary. If an applicant got her degree outside Ukraine it needs to be accepted by Ukraine and it would be almost impossible to secure this acceptance within a week. For instance, if a candidate got her bachelor degree from the University of Cambridge, Sorbonne, or Harvard, she is effectively excluded from this competition. The same applies if an applicant has a Master Degree or PhD from outside Ukraine. Finally, the applicant needs to have a written proof of her work experience confirmed by a notary. While this might be a bit easier if an applicant worked all her life in Ukraine, foreign work experiences are effectively excluded due to the fact that it is almost impossible to prove them within a week. I have already pointed out that the government prevented foreigners from applying by requiring all applicants to possess Ukrainian citizenship; now they effectively stopped any citizen of Ukraine who had any international exposure from applying. Obviously, it removes a number of good potential candidates from this competition and goes against the spirit of the Council of Europe and the European Convention on Human Rights.
According to the Guidelines of the Committee of Ministers on the selection of candidates for the post of judge at the European Court of Human Rights the call for applications should be made widely available to the public, in such a manner that it could reasonably be expected to come to the attention of all or most of the potentially suitable candidates. It also requires that states should, if necessary, consider taking additional appropriate measures in order to ensure that a sufficient number of good applicants present themselves to allow the selection body to propose a satisfactory list of candidates. Nothing of that sort was done by the Ukrainian authorities. The competition was announced on the official presidential website, which is not frequently monitored by the legal professionals in Ukraine and the announcement was widely overlooked until Wednesday, 24 April. This effectively limited the time allowed for submission of the documents to three days. The selection commission that approves such rules effectively reduced the pool of candidates to a bare minimal. This approach to election procedure puts in peril the personal reputation of the members of the selection commission.
Judicial proceedings in Ukraine
Only two legal documents were issued by the Ukrainian authorities: the presidential decree which I examined in my previous blog post and the decision of the selection commission announcing the competition which I discussed in the paragraphs above. Judicial proceedings against both of these documents were brought to the administrative courts of Ukraine. While the outcomes of the appeal against the presidential decree is yet to be seen, some interim results of the second legal action are already known. Lawyers of the Ukrainian Helsinki Union for Human Rights (the Ukrainian human rights NGO) managed to secure an interim injunction from the administrative court staying the continuation of this competition for the election of a “Ukrainian judge”. In their request to review, the lawyers of the Helsinki Union emphasised the incompatibility of the competition with Ukrainian laws as well as with the regulation of the Council of Europe. The legal effects of this interim decision are not clear; for instance, it is not clear whether the competition has to be re-announced because the interim injunction was issued before the submission deadline. It is also unclear how the selection commission should proceed even if the lawyers of the Helsinki Union are unsuccessful in these proceedings. What is certainly clear is that the beginning of this election is a mess; instead of conducting this pretty straightforward procedure in an open, transparent and fair manner, it seems that the Ukrainian authorities decided to rely on some Byzantine schemes of pushing for their loyal candidates.
Finally, it is worth remembering that the second round of presidential elections took place in Ukraine on 21 April 2019; the current president lost, he is leaving the post in about a month. One can speculate that the speed and the manner in which this selection is organised is because the outgoing president wants to ensure a loyal person on the bench in Strasbourg. Of course, these tactics of “appointment” of loyal candidates hugely undermine the reputation of a yet to be elected judge, as well as the legitimacy and authority of the Council of Europe and the European Court of Human Rights.