International experts within Ukrainian competitions: the lessons learned
The engagement of international professionals was introduced into the rules of procedure of the competitions for the highest state positions in Ukraine with the aim to reduce corrupted practices and nepotism. Such a mechanism especially makes a difference while recruiting to the anti-corruption and judicial infrastructure.
The internationals were part of the jury while selecting the HACC judges and the SAPO leadership. They also participated in the selection process of ARMA head and now enjoy the decisive vote of the Ethics Council selecting the High Council of Justice members. International experts joined the High Qualification Commission of Judges selection process within the Selection Commission as well as will help choose the NABU head.
These competitions have a lot of differences but one thing in common: the decisive vote of international experts really contributed to the level of integrity never seen in Ukrainian law enforcement and justice systems before.
According to analysts, 80% of competitors to HACC whose integrity and professional capability were reasonably questioned by the Public Council of International Experts quit the competition.
The reason for this was the newly introduced "presumption of guilt" of a candidate whose integrity arose well-grounded doubts. A candidate could proceed with the competition only in case he or she dispelled these doubts. Otherwise, a person was banned by a joint meeting of the judicial qualification commission and international experts. It is still quite early to evaluate the anti-corruption court performance since it turns only 3 while the court proceedings of top cases may last for 5 years. However, it is already remarkable that unlike all other courts for 31 years of Ukrainian independence the HACC successfully completed NABU cases with real sentences for 41 judges including imprisonment. This vicious circle has finally broken.
International experts within the selection commission advocated for every inch of the SAPO head selection process in Ukraine. The whole country witnessed almost a two-year fight for integrity between the group of four professionals nominated by the international organizations and the group of seven parliament representatives pursuing their interests. The voting mechanism where two votes of international experts are compulsory to take the decision notwithstanding the delay in the process resulted in the selection of a genuinely independent SAPO head. His performance will be evaluated in due course.
The work of the Ethics Council aimed at selecting new members of the High Council of Justice was significantly influenced by the war with Russia. The Council made a decision to terminate the broadcast of interviews with the candidates due to security reasons. This solution faced criticism by Ukrainian watchdogs because of the lack of transparency. Yet the communication of the process is to be improved while taking into account the war-related threats, the genuine problem with this exact competition has little to do with the international experts.
The Ethics Council consists of 6 members, half of them are internationals enjoying decisive votes, and half represent the Ukrainian judiciary appointed by the Council of judges. Such a configuration generates a major internal debate which inevitably affects the final decisions of the Council. The civil society component in such a configuration may contribute to the other selection process balance in the judiciary, i.e. for the Constitutional Court.
Moreover, the law under which the Ethics Council operates provides for the negative selection of candidates principle. That means the Ethics Council must admit a competitor to the next stage if there is no well-grounded proof from a reliable source that his or her integrity is compromised. In other terms, this procedure envisages that the Ethics Council does not select the best candidates but each of them who sufficiently explained the allegations. Given the closed interviews, this is the obvious reason why the watchdogs still have questions about the candidates who have passed the Ethics Council examination.
However, we expect to see a bit altered approach while the competition to the High Qualification Commission of Judges. The Selection Commission the decisive vote of which is enjoyed by the international experts will utilise the positive selection procedure. It means that the jury will admit to the next stage only the best candidates among the pre-selected ones. This may positively influence the whole selection outcome. Let us check this assumption in several months.
One of the main battles for the sustainability of anti-corruption infrastructure is still ahead. The Selection Commission of the NABU head consists of 6 members, three of which are internationals. A candidate will become the NABU head only if his candidacy is supported by two votes of international experts. Moreover, the NABU law amended last October envisages the provision preventing an intentional competition delay.
The right time to evaluate the performance of international experts in all selection processes will come when the NABU and HQCJ competitions are complete. Notwithstanding some procedural omissions and old system resistance, the overall competition results so far are quite impressive, especially in comparison with the period of time when personnel matters were decided exclusively by people of power.
Vitaliy Shabunin, ANTAC Head of Board
