During the last two decades, the Ukrainian judicial system has been in constant process of the reforms. By the year 2002, its issues were regulated by the Law “On the Judiciary”, which was adopted in 1981 and acted with certain changes and additions until 2002. Along with this law, the legal status of a judge was determined by a separate Law of Ukraine “On the Status of a Judge”. The mentioned normative acts at one time in a certain way regulated certain issues of the functioning of the judicial system of Ukraine and defined the legal status of judges of Ukraine, acted in certain editions, were amended and supplemented. In 2010, the legislator decided to combine the issues of legal regulation of the judiciary and the status of a judge and lay them out in one normative legal act – the Law of Ukraine “On the Judiciary and Status of Judges”. In addition to this kind of codification, the 2010 reform envisaged many other innovations: the elimination of military courts, the creation of the National School of Judges of Ukraine, the creation of the High Specialized Court of Ukraine for the consideration of civil and criminal cases, the introduction of an automated system for reviewing cases, etc. One of the important innovations of the 2010 Law was a radical change of the selection system of judges. The changes concerned as an institutional component – the creation of a single body of the High Qualifications Commission of Judges of Ukraine, which received the authority to organize and conduct nationwide selection of judges, as well as instruments for determining the level of professional readiness of candidates for work in the position of a judge.
In 2010, the selection for the judge post institute was filled up with such procedures and concepts as anonymous testing, special examination and special training of candidates for a judge’s position, fulfillment of a written practical assignment, rating of candidates for a judge’s position, competition.
It is noteworthy that such legislative innovations, as now, were also accompanied by criticism from the public, a mixed assessment of experts and representatives of various political forces, along with the approval of the European Commission for Democracy through Law and the planned implementation in practice.
Of course, no one can say that the changes in 2010 did not have shortcomings and gaps in the regulation of certain spheres, but for the first time in the history of the selection of judges of Ukraine, all professional lawyers who had experience in the specialty, age of at least 25 years and the citizenship of Ukraine, were entitled to take participation in the national competition, together with all other participants solve test tasks, which for all were of the same level of complexity and content, to prepare a draft court decision for the same initial data where show their best skills, then to choose the court that is liked, and compete with competitors.
In 2011-2012, judging selections were unprecedented in the judiciary. For the first time in practice, the members and staff of the High Qualifications Commission of Judges of Ukraine, who are mostly lawyers according to their specialty, had to solve the logistical nature and organization of the exam for almost 4000 participants, seek technical solutions for the purpose of operational verification of candidates’ work, develop the necessary local regulations, methodical and instructional materials.
A new round of judicial reform and the adoption of the Law of Ukraine “On ensuring the right to a fair trial” further strengthened the significance of the exam in the process of identifying a judge’s professional level.
Starting in 2015, the procedure for its compilation, which included two components – anonymous testing and writing of a practical task, became mandatory for all active judges. Such a duty arose from the need for each judge to undergo a procedure for initial qualification assessment (for today qualification assessment) to confirm the ability to administer justice in the relevant court, as well as compulsory examinations during career progression and transfer to a higher instance court. It should be noted that the provisions of the law on the judicial system in the wording of 2010, before its adoption, and later – and during its operation, were criticized by experts and the public for lack of competitive principles in the formation of the staff of higher court judges and the Supreme Court of Ukraine.
Such remarks and recommendations were not left to the attention of the legislator. The revision of the current Law of Ukraine “On the Judiciary and Status of Judges” provides for the compulsory compilation of the exam for all those who wish to hold a position of judge regardless of previous experience (judge, lawyer, scholar) or the instance in which the candidate has a desire to work. The exam preparation procedure became mandatory for judges of the highest court in the judicial system – the Supreme Court.
Why does this article paying attention to the exam, which is composed by the candidates for a judge or the acting judge? According to the author, in the light of legislative changes, in the reform of the judicial system over the past 10 to 15 years, along with not very successful decisions, the introduction of the anonymous testing format and the implementation of the practical task is a positive and effective step towards a qualitative selection of judiciary that is undergoing evolutionary development and will continue to only increase its weight in providing the judiciary with the highest level of expertise.
Considering the theme of the evolutionary development and reforming of the institute of examination (qualification examination), it is first of all need to be refered to the official documents of the High Qualifications Commission of Judges of Ukraine. One of such documents is the Regulations on the Procedure for the Qualification Examination of the candidates to be appointed to the position of a judge and the Methodology for its evaluation, which was approved by the Commission on July 10, 2013 (hereinafter – the Regulations). In accordance with paragraph 1.2. of this document examines the objective assessment of the theoretical and practical knowledge of candidates in the field of law, the level of their professional training, the degree of readiness to exercise justice in matters of jurisdiction of the relevant court, as well as an assessment of their personal and moral qualities. The exam is conducted by the High Qualifications Commission of Judges of Ukraine by writing anonymous testing (hereinafter – testing), performing the practical task in order to identify the level of practical skills and abilities in applying the law (hereinafter – the practical task). The basic requirements for conducting the examinations that took place in 2011 – 2013 were:
- ensuring a unified approach and equal conditions for all participants (clause 1.2 of the Regulation);
- the ability to observe all stages of the examination by the public (clauses 1.2, 7.3 of the Regulation);
- the confidentiality of tests and practical tasks (clause 3.13 of the Regulation);
- ensuring anonymity during all stages of the examination (clauses 7.1.-7.6. of the Regulation);
- use of the automated complex of task generation and their verification (clause 7.4 of the Regulation);
- the introduction of individual cards of candidates and the direct generation of their personal codes on the day of the examination (clause 5.8 of the Regulation);
- the only qualification requirements for the implementation of the practical task (Annex 9 to the Regulations).
Are the above provisions maintained in the current examination procedure?
In order to receive a response, it is necessary to refer to the order for conducting the examination and the methodology for establishing its results in the procedure of qualification assessment approved by the decision of the High Qualifications Commission of Judges of Ukraine on November 4, 2016 (hereinafter – the Procedure). Objectivity the examination is ensured by its transparency, confidentiality of test questions and practical tasks, the only method of establishing its results, equality of conditions for access to information about its procedure, place, time and duration of conducting, etc. (paragraph 6 of Section I of the Procedure). To complete the exam, the participant is provided with an individual code, after completing the examination of all the answers forms and notebooks, practical tasks are carried out by establishing and personalizing the general exam results using such a code (Section 19 of Section V of the Procedure). The examination of the practical task performed by the participants is to establish its conformity with the indicators of the methodology for evaluating its results (Section 11 of Section V of the Procedure). As you can see, the current normative legal acts of the High Qualifications Commission of Ukraine with certain editorial changes retained the basic principles and tools developed earlier.
Having noted the rather high level of institutional memory in the normative legal acts of the High Qualifications Commission of Judges of Ukraine, it should be noted that some of the provisions that existed in the previous versions of the local legal acts of the Commission in the current documents are absent. It is necessary to pay attention to the necessity of compulsory regulation of the complexity of test and practical tasks that will be included in the respective task bases, the publication of the methodology for evaluating the results of the practical task, the analysis of the results of the tests conducted and the publication of statistical data.
This situation can be explained by a much wider range of relationships that are regulated by the Order of examination and method of establishing the results of the procedure qualification assessment, along with the Regulations on the drafting of judicial candidates qualifying examination and the method of its evaluation, which is likely to be adjusted and luff in line with the amended law, however, does not contribute to improving confidence in the examination as a reliable and objective verification tool professional level of a judge.
The outlined aspects are especially important with the beginning of testing the personal and moral qualities of judges and candidates for a court position. The Law of Ukraine “On the Judiciary and Status of Judges” in the wording of 2010, providing for the need to establish the personal and moral qualities of candidates for a judge’s position during the qualifying examination, contained a gap and did not determine the manner in which such qualities should be verified.
The current Law defines cases and methods of checking personal moral and psychological qualities of judges and candidates for a position of judge. The qualifying examination (Article 76 of the Law) is conducted by the High Qualifications Commission of Judges of Ukraine in the form of anonymous testing in order to verify the level of general theoretical knowledge of a candidate for a judicial position in the field of law, possession of the official language, personal moral and psychological qualities of the candidate. For the purposes of forming a judge’s file (a candidate’s file for a judge’s position), the High Qualifications Commission of Judges of Ukraine may decide on the introduction and conduct of other tests in order to verify personal moral and psychological qualities, general abilities, as well as the use of other means of determining the suitability of a judge (candidate for the position of a judge) criteria for qualification assessment (Article 85 of the Law).
According to the experience of the Contest to the Supreme Court held by the High Qualifications Commission of Judges of Ukraine in 2017, the procedure for drafting written anonymous testing and the implementation of the practical task did not cause any special criticism regarding the order of conducting and content filling. Some comments on the content of practical tasks, the formulation of responses to test questions were more likely to be related to the lack of content preparation practices precisely for the verification of professional competences in the court of the highest instance.
An analysis of the assessment of the public and exact participants in the course of the exam shows that the best from the standpoint of reliability of the result has proved itself the stage of written anonymous testing. The explanation for this is the considerable experience of conducting such tests by the High Qualifications Commission of Judges of Ukraine, the usage of developed and tested by practice approaches of the organization, development and publication of a testing program, rapid processing and setting of test results, etc.
The situation with the second stage of the exam – the implementation of the practical task – became more complicated. The procedure for conducting an examination and the method for the establishing its results in the qualification evaluation procedure used during the contest to the Supreme Court suggests that the examination of the practical task performed by participants of the exam is to establish its conformity with the indicators of the methodology for evaluating its results. If we turn to the Regulation on the procedure for the appointment of candidates for a judge’s qualification examination and the methodology for its evaluation, the indicators for evaluating the implementation of the practical task in accordance with this provision are the legality and validity of the draft procedural document, the compliance of its form and content with the requirements of the procedural law (13 points) and observance of the rules spelling and stylistics of the court decision (2 points). The documents that determined the procedure for the implementation of the practical task of candidates for a judge’s position in the Supreme Court did not establish such “guidelines” for the contestants, which was the result of negative assessments and criticisms of the procedure for determining the results of the practical task.
How to evaluate the procedure of psychological testing of candidates for a judge’s position as a type of test during the qualification assessment of judges and as a stage of the future qualifying examination? Undoubtedly, an assessment of such qualities of the future judge is important and necessary for admission to the profession. The above analysis of individual legal acts and the experience of conducting exams for candidates for the position of a judge by the High Qualifications Commission of Judges of Ukraine makes it possible to draw conclusions about the positive and negative results of examinations in the field of law. Testing to reveal the personal moral and psychological qualities of candidates for the post of judge of the Supreme Court in the history of the judicial system of Ukraine was held for the first time in 2017. Whether it was carried out properly can only be said after analyzing the provisions of the normative acts that establish the appropriate procedure. In the various documents of the High Qualifications Commission of Judges of Ukraine there is a design “method of testing personal moral and psychological qualities.” At this time, you can not read the document or find information about its approval.
Psychological testing of candidates for a judge’s position is a new procedure for the judiciary and is part of the exam, which has to undergo a difficult path of improvement, attempts and mistakes. Existing preventive institutions for the detection of bad faith judges, such as disciplinary liability, will even be able to compensate for them and help to eliminate them in the future, even if there are disadvantages. However, work on improving the system for assessing the moral and psychological qualities of judges and candidates for a judge’s position is not possible in the information vacuum. In accordance with the Procedure for compiling the qualifying exam and the methodology for evaluating its results, approved by the decision of the High Qualifications Commission of Judges of Ukraine on April 10, 2017, the principles of the qualifying examination are publicity, transparency, openness, equality of conditions for the persons participating in it. Taking into account the Commission’s schedule for conducting the qualifying examination in October-November 2017, we hope to announce in the near future the methods of testing the personal moral and psychological qualities of candidates and the possibility of studying and evaluating them.
Instruments and ideology of the Law, incorporated in the system of judge’s professional qualifications, allow a qualitatively and reliably selection among the best applicants. As practice shows, the credibility of such methods of evaluation is not formed immediately, and the effectiveness of their usage depends on practical experience and the maintenance of the institutional policy of the institution responsible for conducting such procedures. The usage by the High Qualifications Commission of Judges proven procedures and mechanisms tested earlier has had a positive impact on the assessment of the order and results of the selection process for the new Supreme Court. At the same time, the new approaches that were used during this procedure, due to lack of information about them, caused a negative reaction. The conclusion that can be made in this situation is raising the level of awareness of all participants in the following competitions and selections through the promulgation by the High Qualifications Commission of Judges of Ukraine of appropriate methods, criteria and indicators of evaluation, system analysis and understanding which will remove any doubts and reservations regarding bias and prejudice.
The introduction of a psychological testing institute during appointing of a judge attaches particular importance to the formation of a psychological portrait of a candidate for a judge position. The need for the further improvement of the instruments, approaches and procedures of coverage (communication with society) in this field, which are just beginning to function, requires even more attention, the creation of an effective methodological basis and transparent procedure for the possibility to ensure functioning in the Ukrainian judicial system of an effective mechanism for assessing the professional level for work as a judge.
Roman Savchuk, member of a Board of NGO «Law Development Centre»