Activists: with failed new Supreme Court, we can “forget about democracy and justice” in Ukraine

The most crucial reform in Ukraine is in danger. The results of the competition to the highly important body in the judiciary system, the Supreme Court, showed that 93 out of 120 candidates to the body are representatives of the old guard. This places not only the impartiality of the judiciary but all other reforms in Ukraine under threat - all of them, to a certain extent, depend on the ability to pursue justice in the courts. And Ukraine's corrupt judiciary is notorious for its corruption and politically motivated decisions. In 2013, a Transparency International Global Corruption Barometer report showed that 66% of the Ukrainian public considered the judiciary to be the most corrupt institution in the country. 21% percent of Ukrainians admitted they had paid bribes to judicial officials themselves. The situation had not changed much since. The necessity of judicial reform has been discussed in Ukraine since the country entered its new period of history after the Euromaidan Revolution of 2014. However, despite the pressure from civil society, in particular, NGOs involved in advocacy and reforms, the launch of the reform was delayed. It started only in the fall of 2016 when the corresponding legal changes came into force.

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Some attempts to reform the judiciary had taken place before 2016. One of them was adopting the law on Assuring the Right to a Fair Trial in 2015. The Head of the Supreme Court Yaroslav Romaniuk stressed that thanks to the law, the Supreme Court received the opportunity to act as the highest judicial authority in the country and to have the final word during the consideration of cases. The reform envisaged the creation of a new Supreme Court. However, after changes were launched in Autumn 2016, the idea immediately faced opposition. The old Supreme Court appealed to the Constitutional Court to recognize the new legislation as unconstitutional. The Ministry of Justice called these steps of the Supreme Court an attempt to derail the reform. Nevertheless, changes came into force. The creation of the new Supreme Court was planned for the spring of 2017. It was planned that the competition for the positions in the Supreme Court will end the era of old rule in it. However, predictably, it did not. The way the competition itself was conducted raises a lot of questions.

The competition

The reform canceled the system of high specialized courts. The new Supreme Court will consist of four Courts of Cassation – administrative, criminal, civil, and economic. The number of judges working within the Supreme Court was drastically decreased to 200, which is twice less than was the total number of judges of High Specialized Courts and the Supreme Court of Ukraine taken together. It was envisioned that people from outside the court system, attorneys and academics, will also join. Almost 1,500 candidates wanted to apply. However, only 846 managed to provide documents. Serhiy Koziakov, the head of the Highest Qualification Commission of Judges said that the rest did not collect all the documents or did not provide proof of their 10-year experience. Those who previously served as judges prepared the best. The expert explained this by saying that the whole system worked for them while the newcomers needed to do everything by themselves from scratch. Still, at first the chances that people from outside the system will come to the Supreme Court were quite high. 47% of those who applied were judges, 24% - attorneys and 14% academics. Others had mixed experience. However, after the High Qualifications Commission of Judges checked all the documents, only 653 candidates were allowed to take part in the competition. The share of judges among them rose to 69% and the number of attorneys dropped by 2.5 times. At the first stages of the competition, the judges wrote a test and did a practical task. In result, 382 candidates (73% of whom were judges) were accepted to the next stage – examination of the judiciary dossier and an interview. The written test did not raise many questions. Doubts about the impartiality of the competition appeared after the practical test. At first, the High Qualifications Commission of Judges announced the minimum points and listed the judges who scored higher. However, the next day the commission suddenly accepted the 44 candidates who failed the practical test to the final stage. The commission came to a conclusion that the whole exam (test and practice) should be considered as one stage of the competition. So the points are calculated after the two tasks. “It is strange when a person who did not score the minimum points goes further. And why were those that didn’t score enough at the test level pushed aside?” wondered Roman Maslenko, a member of the Public Integrity Council, the public body created to assist the High Qualification Commission on assessing the professional ethics and integrity of judges. “According to the logic of the High Qualification Commission of Judges, the two stages should have been conducted without eliminating anybody, with the selection to the final taking part only after,” says the expert. Mykhailo Zhernakov, the Director of DEJURE foundation, a member of the Public Integrity Council told Euromaidan Press that some new practices, like introducing the Public Integrity Council and psychological tests for judges are a progressive measure. However, the representatives of the old system outwitted them at other questions – they did not release the results of the written test and marked it at their discretion.

The final list

On July 27, the High Qualification Commission of Judges published the list of the 120 finalists of the competition – 30 for each of the four courts of Cassation.

The activists from NGOs involved in reforming process and fight against corruption Anti-Corruption Action Center, Chesno movement, Auto Maidan, and the initiative ProSud stated that out of 120 finalists, only 27 are attorneys or legal scholars, the other 93 (83%) are acting or retired judges. 30 candidates have negative opinions from the Public Integrity Council. “So every fourth future judge of the Supreme Court, elected by the High Qualification Commission of Judges, either violated human rights, made politically motivated decisions or can't explain the origins of their wealth,” the activists express their resentment. “About these 30 we have facts in open access which prove that they are dishonorable. About the rest, we can’t say it definitely, but we are more or less confident that they are OK,” says Zhernakov. 9 out of the 30 finalists with negative conclusions from the Public Integrity Council will be appointed to serve at the Cassational Administrative Court, one of the four subdivisions of the Supreme Court. This court is responsible for making the final decisions in cases where citizens  the cases on action or inaction of all institutes of power in Ukraine. The next step to create the Supreme Court is for the High Council of Justice to vote for the candidates, and then to have them appointed by President Poroshenko. If some candidates will not be approved by the High Council of Justice or if some of them withdraw, the principle of ranking in priority will not be applied. “The procedure of competition is completed. You can't replace anyone in it or raise to this place someone who is next from the list,” said Stanislav Shchotka, the Secretary of the Qualification Chamber of the High Qualification Commission of Judges. The current Head of the Supreme Court Yaroslav Romaniuk, notorious for his support for Yanukovych's "dictatorship laws" adopted to outlaw the Euromaidan protests of 2013-2014, already withdrew his candidacy from the competition

The reaction

President Petro Poroshenko expressed his high satisfaction with the competition. According to him, for the first time in Ukraine's history, the country is forming the Supreme Court through an open and transparent competition. The Head of the High Qualification Commission of Judges Serhiy Koziakov also praised the competition as a result of the large-scale judiciary reform. According to Roman Kuybida, the member of the Public Integrity Council, the situation still can be improved. He says that the High Council of Justice might not approve a candidate if he does not meet the criteria of integrity, professional ethics, or because of other circumstances which can negatively influence the public trust in the judiciary. Zhernakov points out that with such a new Supreme Court we can forget about democracy and justice as these judges are appointed indefinitely. He says that the attention of Ukraine's international partners is important and that they should not fall into the government stories about the open process of the competition. “The result is still bad. There should have been zero judges disapproved by the Public Integrity Council,” concludes the expert. The results of the competition were already criticized by Ukraine's international partners – the US Embassy which called on the High Council of Justice to check every candidate.

…High Council of Justice obliged to independently review each candidate. #IntegrityMatters

— U.S. Embassy Kyiv (@USEmbassyKyiv) July 31, 2017

A number of strong Supreme Court nominations, but integrity concerns of many nominees remain… #IntegrityMatters

— U.S. Embassy Kyiv (@USEmbassyKyiv) July 31, 2017

The selection was conducted with the support of the EU and American program of help USAID “New Justice.” As Serhiy Koziakov told Euromaidan Press, it is expected that the High Qualification Commission will work on the rating in August.

Read more: “Ukraine finally to have independent judiciary.” Interview with Head of Qualification Commission of Judges