July 25, 2019
By Dr. Kanstantsin Dzehtsiarou (University of Liverpool)
I have already written two blog posts on the issue of election of judges of the European Court of Human Rights in Ukraine here and here. To sum up, the election of the new Ukrainian judge meant to take place in December 2018, but the Ukrainian authorities have only opened the national completion in March 2019 which meant that the whole process is way behind the schedule. I was quite critical of the then proposed design of the competition as it did not comply with the recommendations of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe. Since then the Ukrainian authorities have completely reloaded this competition, changed the rules of the game and reached the pinnacle of the national selection – interviews of the candidates. Recent presidential elections and changes in personnel in presidential administration were perhaps the key reasons why the previous competition was stopped and a completely new procedure was designed. Apart from that, academic criticism and litigation initiated by leading Ukrainian lawyers helped to bury the old competition. The new procedure was promising but its practical application puts the legitimacy and fairness of the whole process in some doubt.
The New Design
The authors of the new procedure did a good job by taking into account the main mistakes made by their predecessors. The new process was designed to comply with the key recommendations of the Council of Europe. Enough time was given to submit the documents, the advertisement was widely circulated, non-Ukrainian nationals got a chance to apply and non-Ukrainian education was easily accepted. The authors have also simplified the procedure of authorisation of the documents. Effectively, an applicant was obliged to submit copies of the relevant documents confirming that they are real. Post-soviet obsession with the requirement to authorise all copies of the official documents by a notary was rightly abandoned by the organisers of the competition. So, the regulations of the competition made it fairly easy to fulfil two key aims of any competition – first, it allowed to exclude those who did not comply with the formal requirements such as length of experience, and education, and second, those who were not excluded could prepare the necessary documents without unnecessary obstacles.
The only problematic aspect of the new design was the selection commission which was mostly inherited from the previous iteration of this competition. I have written about the commission in my previous blog post. Only one member of the commission was replaced – the representative of the EU mission in Ukraine was replaced with yet another academic. So, all members of the Commission are now academics and not all of them are specifically specialised in the Council of Europe. The Council of Europe recommends that the selection commission is balanced and members of various legal professions are represented. Unfortunately, it is not clear how the purely academic panel will select the most appropriate candidates to stand for election in Strasbourg. The organisers have not revealed yet how the selection will be conducted; the members of the Commission will have to assess some candidates that have much more specific expertise in the European Convention than they do. It is unclear whether the Commission will reveal the ranking of the candidates and how they are going to justify these rankings.
The new design had a potential to make this competition fair, transparent and leading to selection of the most qualified candidates. The number and reputation of those who decided to participate in this competition clearly shows that it managed to attract the most high profile candidates. The President of the Committee for the Prevention of Torture, judges of the Supreme Court of Ukraine, famous lawyers and defenders are among those who submitted their applications. In order to provide the readers of this blog with the first-hand information about the particularities of this competition I have also submitted an application and the Commission admitted me as a candidate.
The fairy tale of success seems to end there. After the deadline for submission of documents, the Commission has notified the participants about the language tests and interviews in Kyiv. This was done one working day before the tests. This was done in July when many people are abroad on annual leave, some people might have professional obligations such as court hearings, meeting with clients, business trips etc. Generally, it does not seem reasonable to notify candidates to such an important role as the judge of the European Court of Human Rights only a day in advance. I contacted the organisers asking if the interviews and testing can be done remotely, for example via Skype. My request was rejected and no reasons for this rejection were given.
I was not the only one who was excluded from the competition by a very short notice for an interview. A few candidates were not in a position to take part in the competition due to the short notice and this led two leading human rights NGOs in Ukraine to send an open letter asking the government to postpone the tests and interview. They pointed out that such a short notice is discriminatory and effectively excludes certain candidates from the competition. As a response to this, the authorities postponed the testing by two working days. Of course, formally, the authorities reacted to the voice of civil society but in reality in many cases, this postponement changed nothing. For instance, one of the best qualified female candidates is outside Ukraine on annual leave and could not return on time. I have again emailed the organisers of the competition with the request to postpone the competition but this time my email was left unanswered. This approach suggests that the best lawyers in the country have nothing better to do than to wait until they are called for an interview with a one or two day notice. It seems that this approach does not strike a proper balance between the need to conduct the competition in a timely manner and the requirements that ensure that the best candidates have a real chance to take part in this competition.
Need for Speed
What is the point in rushing this competition and putting its results under threat? On a more practical level, the Committee on the Election of Judges to the European Court of Human Rights might reject the list submitted by a member state if it establishes that the competition did not comply with the requirements of the Council of Europe. In this case, instead of speeding things up, unfair competition will delay the election of a new judge from Ukraine. In the past the Committee rejected lists from a number of states including Turkey, Hungary, Azerbaijan and others. These rejections do not only delay the elections but also question the reputation of the authorities which submitted a suboptimal list. On a more general level, rushing this competition might undermine the legitimacy of the whole process. It seems that summer is not the greatest time to hold job interviews in general; this is especially so when the interviews are conducted with one or two day notice.
It is also unclear what is the reason for this rush. The elections of the “Ukrainian judge” in the Parliamentary Assembly of the Council of Europe (PACE) were supposed to take place in 2018. The authorities are already very late. Extra month or two would not make a major different. Moreover, it is unlikely that the list will be ready for election by the PACE in October as there are many formal procedures that need to be fulfilled. The list needs to be sent to the Panel of Experts and I guess that many panel members are on leave in summer. It would make a lot of sense if the tests and interviews were postponed until September, the candidates would be properly notified and the potential for this competition to be fair and legitimate would be fully realised. Unfortunately, in reality the potential to be fair and legitimate might remain a potential.