Public representation in commissions to select members of the judiciary: comparative analysis

In addition the effective participation of society in the formation of the judiciary is not necessarily limited to the direct election of judges, although this practice had already been used in Ukraine before. The practice of electing judges continues to be used in some European countries, in particular in Switzerland. Society can also be involved by including representatives of the people in the composition of bodies or commissions that carry out the selection of candidates for the position of judges and the bodies that evaluate of the activities of acting judges.

The following important conclusions, based on the results of the research, will help in understanding certain global trends observed in this area.

First, some European countries consider it completely justified and democratic to form commissions that select candidates for judicial positions not only from representatives of the judicial branch of power, but also from other specialists from the extra-judicial system to be completely justified and democratic.

The composition of such commissions is also not limited to legal specialists, but also includes representatives of other professions, even such unexpected professions as theologians, and film directors, etc. The main idea in this approach is to achieve the maximum pluralism of opinions - pluralism of profession, pluralism of experience and pluralism of mentality.

Second, many states in the US, as well as some European countries, also prefer mixed representation in commissions that select judges. This again strengthens the belief in the correctness of the approach, according to which the participation of representatives of civil society and the professional environment minimizes the risks of the formation of closed corporate systems. Systems that reach such a level of autonomy that any intervention from the outside, even if it is completely justified and necessary to improve the quality of work of the judicial system, is perceived as a real threat to its existence.

Third, some US states take a more democratic approach, in which the quantitative advantage in the composition of commissions for the selection of candidates for the position of judges belongs to representatives of the public sector. In Europe, in contrast, there is still a strong trend towards strengthening judicial autonomy. Similar features in the approaches to the formation of bodies that carry out the selection and evaluation of judges, that is characteristic for the respective US states, have a more positive effect on the level of objectivity of the selection of judges and their evaluation, and on the level of trust in such a selection and evaluation, primarily by society. Such development directions must be chosen for Ukraine as well.

The experience of the US shows, that the principles of the formation of selection commissions are also an important part of the system of the selection of judges. Such principles can increase not only the quality of persons in the judicial corps, but also the quality of the composition of the commissions themselves and their expertise. These are, of course, interrelated processes.

REFERENCES

[1] Constitution of Ukraine. (1996, June). (in edition 21.02.2019.). Retrieved from https:// zakon.rada.gov.ua/laws/show/254%D0 %BA/96-%D0 %B2%D1 %80?lang=en#Text.

[2] Electoral Code of Ukraine. (2019, December). Retrieved from https://zakon.rada.gov.ua/ laws/show/396-20?lang=en#Text. [Accessed 5 September 2022].

[3] Law of Ukraine No. 1798 «On the High Council of Justice» (2016, December). Retrieved from https://zakon.rada.gov.ua/laws/show/1798-19?lang=uk#Text.

[4] Law of the Ukrainian SSR No. 2022 «On the Judicial System of Ukraine». (1981, June). Retrieved from https://zakon.rada.gov.ua/laws/show/2022-10#Text.

[5] Law of the Ukrainian SSR No. 2023 «On elections of district (city) people's courts of the Ukrainian SSR». (1981, June). Retrieved from https://zakon.rada.gov.ua/laws/show/2023- 10#Text.

[6] Bovend'Eert, P. (2018). Recruitment and appointment ofjudges and justices in Europe and the US: law and legal culture. Trema: Tijdschrift voor de Rechterlijke Macht. 5. Retrieved from https://trema.nvvr.org/editie/2018-05/recruitment-and-appointment-of- judges-and-justices-in-europe-and-the-us.

[7] Harpenko, O. O. (2017). Eligibility of judges: disadvantages and advantages. Materials of conference in Odessa: Current issues of the judicial system and the formation of the corps of judges, 253-254.

[8] Organisation for Economic Co-operation and Development. (2017). Citizen confidence with the judicial system, 2007 and 2016. Retrieved from http://www.oecd-ilibrary.org/ governance/government-at-a-glance2017/citizen-confidence-with-the-judicial-system-and- the-courts-2007-and-2016_gov_glance-2017-graph168-en.

[9] Regulations National Selection Committee for Judges. (Regeling Landelijke selectiecommissie rechters (LSR). (2020). Navigator website. Retrieved from https:// www.navigator.nl/document/id820042114a7d403082124780d2c9f2d2?ctx=2115b88db8 1c7cafd26b40c36ead00e2.

[10] Werkenbijderechtspraak. (No data). De Landelijke selectiecommissie rechters. [Working at the judiciary's website]. Retrieved from https://www.werkenbijderechtspraak.nl/de- organisatie/lsr/.

[11] CEDAM. (2019). Judicail system cannot be changed within: public participation is necessary. Retrieved from https://cedem.org.ua/analytics/sudovu-systemu-ne-zminyty- zseredyny-potribna-uchast-gromadskosti/.

[12] Judicial Appointments Commission. (No data). About us. Retrieved from https:// judicialappointments.gov.uk/about-the-jac.

[13] Lawteacher. (No data). Administrative Tribunals Lecture Notes. Retrieved from https:// www.lawteacher.net/lecture-notes/admin-tribunals.php.

[14] Doherty, M. (2005). English and European legal systems. 1st Ed. England: Old Bailey Press, Holborn College.

[15] Delaney, E. F. (2014). Judiciary rising: Constitutional change in the United Kingdom. North Western University Law Review. [Online]. 108(2), 543-606. Retrieved from https:// scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1024&context=nulr.

[16] Constitutional Reform Act (2005). Retrieved from https://www.legislation.gov.uk/ ukpga/2005/4/section/61.

[17] UK Judiciary. (No data). Judicial Appointments Commission. Retrieved from: https:// www.judiciary.uk/related-offices-and-bodies/judicial-appointments-commission.

[18] Judicial Appointments Commission. (No data). The Board of commissioners. Retrieved from https://judicialappointments.gov.uk/the-board-of-commissioners/.

[19] Judicial Appointments Commission. (No data). History of the judicial appointments commission. Retrieved from: https://judicialappointments.gov.uk/history-of-the-judicial- appointments-commission/. [Online].

[20] Denmark Domstol. (2021). A closer look at the courts of Denmark. Retrieved from https:// domstol.dk/media/jqhg2psf/a-closer-look-at-the-courts-of-denmark.pdf.

[21] Consultative Council of European Judges. (2016). Questionnaire for the preparation of the CCJE Opinion No. 19 (2016): «The role of court presidents». Answers Denmark. Retrieved from https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?d ocumentId=09000016805aaa6c.

[22] Office of UN High Commissioner for Human Rights. (2018). Questionnaire of the Special Rapporteur on the independence of judges and lawyers. Retrieved from https:// www.ohchr.org/sites/default/files/Documents/Issues/IJudiciary/JudicialCouncils/Denmark. docx.

[23] European Network of Councils for the Judiciary. (No date). Denmark court system review. Retrieved from https://www.encj.eu/images/stories/pdf/factsheets/domstolsstyrelsen_ denmark.pdf.

[24] On Courts: Law of Republic of Lithuania. (2008). Retrieved from https://e-seimas.lrs.lt/ portal/legalActPrint/lt?jfwid=13y0a4w4uo&documentId=TAIS.338141&category=TAD.

[25] Stava, G., Van Bentham, V, Moliene, R. (2018). Report of the group of international experts «Selection and evaluation of judges in Ukraine» as part of the implementation of the EU project Pravo-Justice. Retrieved from https://www.pravojustice.eu/ storage/app/uploads/ public/5c0/fcd/d87/5c0fcdd87fb7e669371310.

[26] Missouri Nonpartisan Court Plan. (No data). Missouri Court's Website. Retrieved from:https://web.archive.org/web/20070709014058/http://www.courts.mo.gov/page. asp?id=297.

[27] IAALS. (2014). The O'Konnor judicial selection plan. Retrieved from: https://iaals.du.edu/ projects/o-connor-judicial-selection-plan.

[28] American Judicature Society. (2009). Judicial Merit Selection: Current Status. Retrieved from https://web.archive.org/web/20090920020232/http://www.judicialselection.us/ uploads/Documents/Judicial_Merit_Charts_0FC20225EC6C2.pdf.

[29] European Charter on the statute for judges [1998] DAJ/DOC (98)23

[30] Burdin, D. A. (2015). Modern models of formation of the judiciary in foreign countries. Journal of Law and Policy, 3(183), 368-372. DOI: 10.7256/1811-9018.2015.3.14433

[31] Arizona Commission on Judicial Performance Review. (2021). About the Commission on Judicial Performance Review. Retrieved from https://www.azcourts.gov/jpr/About-JPR.

[32] Ballotpedia's website. (No data). Alaska Judicial Council. Retrieved from https:// ballotpedia.org/Alaska_Judicial_Council.

[33] Duffey, W. (2010). The Judiciary: Guardian of Democracy. Journal Courts and society. International swmmit, 2-4

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