Subparagraph 4 of Paragraph 16 of the Law of Ukraine “On Amendments to the Constitution of Ukraine (Regarding Justice) No. 1401-VIII of June 2, 2016” introduced amendments to Section XV, “Transitional Provisions,” namely: “The suitability for office of a judge appointed for a five-year term or elected as a judge for an indefinite term prior to the entry into force of the Law of Ukraine ‘On Amendments to the Constitution of Ukraine (Regarding the Administration of Justice)’ shall be assessed in accordance with the procedure established by law. A finding, based on the results of such an assessment, that a judge is unsuitable for the position held based on criteria of competence, professional ethics, or integrity, or a judge’s refusal to undergo such an assessment, shall constitute grounds for the judge’s removal from office. The procedure and exhaustive grounds for appealing a decision to remove a judge based on the results of the evaluation shall be established by law;”

Based on this provision and the results of an anonymous written examination, decisions by the High Qualification Commission of Judges of Ukraine (hereinafter—HQCJ) deem judges who fail the aforementioned examination to be unfit for their positions.

Subsequently, guided by such decisions, the High Council of Justice (hereinafter—HCJ), pursuant to subparagraph 4 of paragraph 161 of Section XV “Transitional Provisions” of the Constitution of Ukraine, paragraph 20 of Section XII “Final and Transitional Provisions” of Law No. 1402-VIII, and Articles 3, 30, 34, 56, and paragraph 12 of Section III “Final and Transitional Provisions” of Law No. 1798-VIII, has decided to remove these individuals from their positions as judges.

To date, the outcome of judicial appeals against these decisions on the grounds that such removal violates the provisions of the Constitution of Ukraine has, unfortunately, been negative.

At the same time, the Resolution of the Grand Chamber of the Supreme Court dated November 28, 2019, in Case No. 9901/24/19 regarding the lawsuit filed by Vira Viktorivna Velykokhatska against the High Council of Justice concerning her dismissal from the position of judge of the Obolon District Court of Kyiv, which was adopted with a joint dissenting opinion by six Supreme Court justices who disagree with the decision.

In the opinion of the Supreme Court justices, the circumstances of this case require an assessment not only of the defendant’s compliance with the formal procedure for dismissing the plaintiff from her position as a judge, but also of the factual grounds that served as the basis for the High Council of Justice’s submission of the relevant motion.

The legal status of a judge, as a bearer of judicial power, provides certain guarantees for his or her professional activities. In the context of the circumstances of this case, it should be noted that one of these guarantees is the special procedure for removal from the office of judge.

The list of grounds for removal from the office of a judge is set forth in Part Six of Article 126 of the Constitution of Ukraine, and this list is exhaustive.

The fact that the Constitution of Ukraine provides a clear list of grounds for removal from the office of a judge, as well as grounds for the termination of a judge’s powers (Part Seven of Article 126 of the Constitution of Ukraine), serves as a guarantee that, in particular, judges will be aware of these legal grounds—to which the legislature links the impossibility of a person continuing to serve as a judge—and serves as a guarantee of the stability of legal regulation and the predictability (over a long period of time) of the consequences that any person with an interest in this area—especially those serving as judges—can foresee in advance.

A judge holds office for an indefinite term, and the predictability of legislation governing the judicial system is a crucial aspect of the functioning of the judiciary as a whole. If, in this context, one also considers the role of the court and the status of a judge, the certainty and stability of legal regulation in this sphere of social relations take on particular importance.

It is evident that, over time and with the evolution of social relations, the list of grounds for a judge’s removal set forth in the Constitution of Ukraine may change (in accordance with established procedures). This process is natural; however, it is important to emphasize that, in this context, changes regarding the grounds for a judge’s removal cannot be applied on a “one-time” basis. Equally important is the fact that, under the existing legal framework, the removal of a judge from office in anycase is the result of circumstances that objectively make it impossible for the judge to continue holding that office, and the task of the High Council of Justice is to ascertain these circumstances and provide a legal assessment of them.

In this case, the Complainant, like other judges who failed the exam, was removed from office on the basis of Section XV, “Transitional Provisions,” of the Constitution of Ukraine (subparagraph 4 of paragraph 16-1) — the determination, based on the results of the qualification assessment, that a judge does not meet the competency criteria for the position held.

First and foremost, it is noted that this section of the legislative act, by its very purpose and even its title (“Transitional Provisions”), is intended to contain provisions aimed at regulating interim (temporary) relationships that will exist for a certain period until they are exhausted in connection with the introduction of new or amendments to existing regulatory provisions governing a specific sphere of social relations.

Transitional provisions govern legal relationships that arose before the law took effect, the resolution of pending cases, and the possibility of retroactive application of the law. They may define the procedure or conditions for the application of other laws or specific provisions thereof, and regulate legal relationships arising in connection with the entry into force of a new law.

In essence, the provisions of the “transitional provisions” of a law (including the Constitution of Ukraine as the fundamental founding act of the state) must facilitate the implementation of the changes introduced by that law, but not replace them. What we mean is that, by their very nature, transitional provisions cannot contain provisions that would supplement the main text of either an ordinary law or the Constitution of Ukraine—as the foundational document that sets the guidelines for the further development of the state and society— thereby expanding or supplementing its (main) content for a certain period of time. In light of this case and the considerations outlined above, it is important to note that this issue is particularly acute with regard to the formation and functioning of the professional judiciary as a branch of state power in Ukraine.

A separate position of the Constitutional Court of Ukraine

In the second paragraph of the Opinion in Case No. 1-16/2008 dated January 15, 2008, in response to a request from the Verkhovna Rada of Ukraine for an opinion on the compliance of the draft law on amendments to the Constitution of Ukraine regarding the improvement of the local self-government system with the requirements of Articles 157 and 158 of the Constitution of Ukraine (the case concerning amendments to Articles 85, 118, 119, 133, 136, 140, 141, 142, and 143 of the Constitution of Ukraine) The Constitutional Court of Ukraine noted that the Transitional Provisions of the Constitution of Ukraine are intended to ensure its implementation. A significant portion of the transitional provisions will eventually cease to be in effect and will have only historical significance.

In a separate opinion regarding the Opinion of the Constitutional Court of Ukraine in the case concerning the request by the Verkhovna Rada of Ukraine for an opinion on the compliance of the draft law on amendments to the Constitution of Ukraine (regarding the judiciary) with the requirements of Articles 157 and 158 of the Constitution of Ukraine, Judge O. M. Litvinov emphasized that the provisions proposed in the draft law under subparagraph 4 of paragraph 161 of Section XV “Transitional Provisions” of the Basic Law of Ukraine contain significant logical inconsistencies. Specifically, they provide that, as of the date the Law of Ukraine “On Amendments to the Constitution of Ukraine (Regarding the Administration of Justice)” enters into force, legal consequences are created retroactively to a time prior to its entry into force, that is, a paradoxical situation arises in which a constitutional law that is not yet in force already regulates legal relationships that occurred in the past.

Regarding the provisions proposed by the bill in subparagraph 4 of paragraph 161 of Section XV “Transitional Provisions” of the Constitution of Ukraine concerning the evaluation of judges—which reflect existing legislative regulations—the judge drew attention to the fact that that the Constitutional Court of Ukraine, in its Decision No. 10-rp/2013 of November 19, 2013, emphasized that the Constitution of Ukraine establishes an exhaustive list of grounds for removing a judge from office, which precludes any legislative expansion or narrowing of this list (third paragraph of subparagraph 3.1 of paragraph 3 of the reasoning section). However, neither the Constitution of Ukraine nor the proposed legislative amendments thereto contain such grounds for removing a judge from office as “a judge’s unsuitability for the position held based on criteria of competence, professional ethics, or integrity, or a judge’s refusal to undergo such an evaluation”.

Furthermore, as noted in a separate opinion, paragraph 48 of the Venice Commission’s Opinion on proposals to amend the draft law on amendments to the Constitution regarding the strengthening of the independence of Ukrainian judges, dated December 10, 2013, No. 747/2013, it is noted that a qualification test for all sitting judges is a highly sensitive issue; qualification tests for all sitting judges could jeopardize judicial independence and should therefore be avoided; issues regarding judges’ qualifications should be addressed through effective disciplinary proceedings on a case-by-case basis.

In the fifth paragraph of section 6 of the dissenting opinion to this same Opinion, Judge M. I. Melnyk of the Constitutional Court of Ukraine noted that the draft law [Draft Law on Amendments to the Constitution of Ukraine (Regarding the Administration of Justice) (Reg. No. 3524)] provides for a special ground for removing a judge from office—the determination that a judge is unsuitable for the position held based on the results of an evaluation (subparagraph 4 of paragraph 16-1 of Section XV “Transitional Provisions” of the Constitution of Ukraine). The distinctive nature of this ground stems from the fact that, first, it is not provided for in Article 126 of the Constitution of Ukraine as amended by the proposed bill, which contains an exhaustive list of grounds for a judge’s removal, but rather by Section XV “Transitional Provisions” of the Constitution of Ukraine; and second, it is the result solely of an evaluation, rather than the outcome of disciplinary or criminal proceedings. It is proposed that such an assessment be conducted based on criteria of competence, professional ethics, and integrity, which are difficult to formalize; this will inevitably introduce a significant degree of subjectivity into the procedure for removing a judge from office on this ground.

A similar opinion to this Conclusion was expressed in a separate opinion by Judge N. K. Shaptala of the Constitutional Court of Ukraine.

Subparagraph 4 of Paragraph 161 of Section XV, “Transitional Provisions,” of the Constitution of Ukraine, which the High Council of Justice cites in the disputed Decision as the legal basis for removing the Complainant from office as a judge, in fact introduces yet another ground for a judge’s removal—namely, “the determination, based on the results of a qualification assessment, that a judge is unsuitable for the position held according to criteria of competence, professional ethics, or integrity, or a judge’s refusal to undergo such an assessment.”

Such a ground for removing a judge from office is not provided for in Part 6 of Article 126 of the Constitution of Ukraine. Furthermore, this ground for dismissal is in no way linked to the judge’s conduct and/or actions that would indicate incompatibility with the status of a judge or reveal unsuitability for the position held. Nor is it related to a judge’s failure to fulfill the obligation to confirm the lawful origin of their property, which is one of the independent grounds for submitting a motion to remove a judge from office (paragraph 6 of part six of Article 126 of the Constitution of Ukraine, part eight of Article 109 of Law No. 1402-VIII).

Moreover, this ground for removing a judge from office is of a “one-time” nature, since the consequences of failing the qualification assessment (removal from office) apply only to those judges who were appointed to a five-year term or elected as judges for an indefinite term prior to the entry into force of the Law of Ukraine dated June 2, 2016, No. 1401-VIII “On Amendments to the Constitution of Ukraine (Regarding Justice)” came into force.

The qualification assessment of sitting judges for compliance with the criteria of competence, professional ethics, or integrity is not a procedure within the framework of which it is possible to establish the fact of a disciplinary offense or actions/conduct by a judge that, within the meaning of Part 8 of Article 109 of Law No. 1402-VIII, constitute grounds for imposing a disciplinary sanction in the form of a motion to remove a judge from office (pursuant to paragraphs 3 and 6 of Part 5 of Article 126 of the Constitution of Ukraine).

Meanwhile, given the consequences of the qualification assessment, a failure to demonstrate the ability to administer justice (during this procedure) is equated with unsuitability for the position held and, in essence, with the commission of a serious disciplinary offense (as defined in Part 9 of Article 109 of Law No. 1402-VIII), which is unacceptable from the standpoint of the principle of legal certainty.

The qualification assessment procedure itself has different goals and objectives when evaluating sitting judges and when evaluating candidates for judicial office; however, it shares a single goal: to ensure that the professional judiciary is qualified and trusted. Achieving this goal requires not only that judges or candidates for the position meet high professional and moral-ethical standards, but also that the state, through its authorities, ensure compliance with established rules of conduct.

Given this objective, the qualification assessment of judges is one of the means of achieving it; however, under no circumstances can the qualification assessment replace disciplinary proceedings against a judge. It is worth noting that committing a disciplinary offense while administering justice does not always result in dismissal from the position of judge, whereas failing a qualification assessment (if one follows the approach taken by the High Council of Justice in this case) leads to only one outcome—removal from office—without any investigation into the underlying reasons for such a decision.

As for the criteria for the qualification assessment—failure to meet even one of which results in the judge’s removal from office—these criteria pertain not only to the judge’s professional activities but also to the judge’s moral, ethical, and psychological characteristics and way of life.

The Position of the Venice Commission and the Council of Europe

 Paragraphs 73, 74, 75, 76, and 78 of the Joint Opinion of the Venice Commission and the Directorate of Human Rights of the Directorate General of Human Rights and the Rule of Law of the Council of Europe on the Law “On the Judicial System and the Status of Judges” and Amendments to the Law of Ukraine “On the High Council of Justice” dated March 23, 2015, No. 801/2015, it is noted that if the situation is as described by government officials [problems involving both corruption and the incompetence of judicial officials, resulting from political influence over judicial appointments in the previous period; an almost complete lack of public trust in the integrity or competence of judicial bodies], it may be necessary and justified to take extraordinary measures to remedy these shortcomings. Such extraordinary measures must indeed be aimed at identifying individual judges who are unfit for the office of judge. In this regard, the dismissal of every member of the judiciary appointed during a specific period would not be an appropriate solution to the problems identified by the authorities. This is particularly unfair in the case of judges who were lawfully appointed in a country that had a democratic system—albeit one that was in many respects flawed and allowed for excessive political influence over judicial appointments.

However, a measure such as a qualification assessment should be viewed as entirely exceptional and subject to exceptionally strict safeguards protecting those judges who are qualified for their positions.

Furthermore, Article 126 of the Constitution of Ukraine must be taken into account, which provides that judges hold their offices for an indefinite term, with the exception of judges of the Constitutional Court of Ukraine and judges appointed to office for the first time.

Any law that provides for the removal from office of all incumbent judges without any review of individual responsibility or culpability would constitute a clear violation of this constitutional provision.

In this regard, it appears that the qualification assessment may also lead to a judge’s removal from office. If, based on the results of the initial qualification assessment, a judge’s ability to administer justice is not confirmed, he or she will be suspended from administering justice and referred to the National School of Judges of Ukraine for retraining, followed by a repeat qualification assessment. Failure by the judge in question during the repeat qualification assessment constitutes grounds for the High Qualification Commission of Judges of Ukraine to conclude that a recommendation should be sent to the High Council of Justice to decide on submitting a motion to remove the judge from office on the grounds of breach of the oath.

The Venice Commission and the Directorate consider it inappropriate for this issue—which introduces substantial changes to the Law and may have significant consequences—to be addressed in the Transitional Provisions, as currently proposed. This issue should be addressed in greater detail in the main body of the Law and requires constitutional underpinning. During the meeting in Paris, government representatives emphasized that the detailed provisions of Articles 83–86 may also be used for qualification assessments. However, the Venice Commission and the Directorate do not believe that these provisions, which are appropriate for the appointment of judges for life, are necessarily appropriate for qualification assessments.

Law No. 1402-VIII does not contain a legal definition of what is meant by the terms “competence” and “integrity,” whereas these criteria (requirements) serve both as conditions for entry into the judicial profession (in accordance with Article 127 of the Constitution of Ukraine) and as a condition for remaining in that position.

The absence of even a general definition (delineation) of these concepts at the legislative level, as well as of guiding principles for their application when evaluating the professional conduct of judges—coupled with the broad discretionary powers of the High Council of Justice and the High Council of Prosecutors in this area of legal relations— calls into question the “quality” of such a law, in particular one of its characteristics: predictability.

The Next Step—A Constitutional Complaint

The concepts of “competence” and “integrity” have a very broad meaning (scope), and their understanding and perception are influenced by mentality, traditions (customs), societal culture—including legal culture—and a society’s socioeconomic development. In other words, there are many factors that shape perceptions of these categories; therefore, in the absence of a normative definition of these concepts and of practice-based approaches to their interpretation and application, it is not possible to speak of the precision, clarity, and predictability of the law regarding the implementation of such grounds for dismissal, failure to meet which is effectively equated with disciplinary liability for a judge, is not possible.

In this context, dismissal from the office of judge due to failure to meet the criteria for qualification assessment is somewhat analogous to dismissal from the office of judge “for breach of the oath” (paragraph 5 of part five of Article 126 of the Constitution of Ukraine, as amended prior to September 30, 2016) and in this regard, the judgment of the European Court of Human Rights of January 9, 2013, in the case of “Oleksandr Volkov v. Ukraine” (Application No. 21722/11; paragraphs 169–187 of the judgment).

Under the current legal framework, the High Council of Justice, as the body whose powers include, in particular, the removal of a judge from office, can and must conduct a comprehensive assessment of the circumstances serving as the basis for submitting a motion to remove a judge from office, through the lens of the provisions of Part Six of Article 126 of the Constitution of Ukraine and, on this basis, determine whether there are objective factual grounds for implementing such measures with respect to a specific judge.

Such an approach to resolving the issue of a judge’s removal from office will not only ensure compliance with the guarantees of a judge’s independence and inviolability but will also give real substance to the purpose of the qualification assessment of judges within the meaning of the provisions of Articles 83 – 88 of Law No. 1402-VIII and will justify the purpose of introducing such evaluations of judges.

If we take into account the historical context of the introduction of the qualification assessment—which, from the state’s perspective, at least as presented by its representatives to members of the Venice Commission, was primarily driven by the desire to restore public confidence in the integrity and competence of the judiciary, to overcome and eliminate problems with corruption in the courts, as well as the incompetence of judicial officials—problems that arose or intensified as a result of political influence on judicial appointments during the previous period—then, in terms of achieving the goal of restoring public trust in the judiciary and identifying judicial officials who, through their unprofessional actions, unethical conduct, or in any other manner established by law, have discredited justice, tarnished the good name of judges, and undermined trust in the judicial system and justice, the qualification assessment is (speaks) whether it can serve as the form (method, mechanism) intended to ensure the achievement of such a goal, capable of identifying judges who harm justice, and identifying individual (personal) significant factors indicating that their actions are incompatible with the status of a judge and constituting grounds for the dismissal of such a judge from office, as provided for in Part Six of Article 126 of the Constitution of Ukraine.

The opinions or conclusions of the authorized bodies responsible for conducting qualification assessments, beyond the grounds for a judge’s removal established by the Constitution of Ukraine, cannot serve as grounds for such removal in any capacity; nor may they constitute exceptional, special, separate, or temporary grounds for dismissal. Nor shall the ground specified in subparagraph 4 of paragraph 161 of the Final and Transitional Provisions of the Constitution of Ukraine—namely, the finding, based on the results of a qualification assessment, that a judge is unsuitable for the position held according to criteria of competence, professional ethics, or integrity, or a judge’s refusal to undergo such an assessment,

In light of the foregoing, in late February 2020, Oleksandr Tananakin, an attorney with BARRISTERS Law Firm, filed a constitutional complaint regarding the inconsistency of the Law of Ukraine “On Amendments to the Constitution of Ukraine (Regarding the Administration of Justice) No. 1401-VIII of June 2, 2016, with Article 126 of the Constitution of Ukraine.