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

93 out of 120 candidates to the new Supreme Court are representatives of the old guard. Photo: infokava.com

93 out of 120 candidates to the new Supreme Court are representatives of the old guard. Photo: infokava.com 

Analysis & Opinion

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.

Read also: Judicial reform in Ukraine. What to expect from it | #UAreforms

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

Source: Reanimation Package of Reforms

The reform canceled the system of high specialized courts.

These courts were introduced in ex-President Yanukovych’s time and considerably weakened the Supreme Court, as the President’s Administration controlled all the appointments to them. Then, the structure of the judiciary was:

  1. the local courts;
  2. the Court of Appeals;
  3. the Court of Cassation, or the High Specialized Court
  4. the second level of Cassation – the Supreme Court.

Now, the High Specialized Courts will be dissolved, and the Supreme Court will have the highest judicial authority.

The new Supreme Court will consist of four Courts of Cassationadministrative, 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

The High Qua

The High Qualification Council of Judge’s members were responsible for selecting the finalists to the Supreme Court. Photo: HQCJ’s website

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

The Public Integrity Council. Photo: the HQC's website

30 judges with negative assessments by the Public Integrity Council were admitted as Supreme Court judges. Photo: the HQCJ’s website

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.

However, activists in the field maintain that the statements of the Administration of President and the High Qualification Commission of Judges are manipulative.

They say that if the conclusions of the Public Integrity Council were taken into consideration, the share of lawyers and academics would rise up to 28%. 39% of the positions would be taken by the most successful judges of local courts and courts of appeal. And the share of active judges of the high-level courts would drop to 33%.

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.

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

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  • Rafael Hernandez

    Long live Maidan!! What a success it has been!

    • Tony

      https://en.wikipedia.org/wiki/Corruption_Perceptions_Index#2016
      Ukraine climbed 4 points since 2014, russia climbed 2 and now they are equally corrupt but by next year Ukraine will likely overtake russia.

      https://freedomhouse.org/report/freedom-world/2017/ukraine
      https://freedomhouse.org/report/freedom-world/2013/ukraine

      So Ukraine improved 1/7 points in political freedoms.

      Meanwhile, russia lost 2/7 points in that category since Maidan and generally Ukraine is rated partially free or hybrid regime while russia is rated as not free or authoritarian.
      https://freedomhouse.org/report/freedom-world/2017/russia
      https://freedomhouse.org/report/freedom-world/2013/russia

      Progress may be slow but even at this pace Ukraine will leave russia in the dust.

      Yet still russia pays trolls like you to criticise and write trash instead of fixing your own problems.

      • Screwdriver

        Ukrainian progress :
        Volodymyr Groysman
        July 31 at 10:27am ·
        Вперше за 14 років херсонські кавуни відправляться в столицю не автошляхами, а річковим транспортом. Це – позитивна новина, яка говорить про те, що річкове сполучення, яке, на жаль, перебуває в занепаді останніми роками, починає відроджуватися.
        Використання річкового транспорту замість автомобільного, по-перше, зменшує завантаженість доріг, а по-друге, здешевлює продукт для кінцевого споживача
        https://twitter.com/kavun_z_barzhi

        • MichaelA

          too bad that so many officials are still in love with moscow corruption
          of course they hate reform
          as you do

      • Screwdriver

        “Ukraine is rated partially free or hybrid regime”
        There is a hybrid pension in Ukraine now. Half of the pension goes to electric bill, another half is for gas.

        • MichaelA

          you again show you know nothing about ukraine
          in russia pensioners can barely afford necessities

    • MichaelA

      yes it has
      important not to let moscow corruption be brought back

  • Tony

    The corrupt should remember there were two revolutions in 10 years, they risk much by digging in their heels. They should study history, understand the shift thats at work and get out of the way least they find their heads on the chopping block in a few years time.

  • MichaelA

    poroshenko wants to keep the soviet system

  • Микола Данчук

    This is unacceptable, Ukraine should not give in to the old business as usual.
    The EU and IMF must hold the leadership to progressive reforms at any cost.
    Ukraine needs transparency and rule of law if it is to retain democracy!
    The people deserve no less!

  • Screwdriver

    Arent we surprised..

    Кавун з Баржі‏ @kavun_z_barzhi 22h22 hours ago
    Кремлівські пропагандони пишуть, що я набрався тарганів, як сучка бліх. Це не так. Це кісточки. Кісточки моїх ворогів! Не плутайте!

    • MichaelA

      not at all
      many officials in ukraine want to keep russian corruption
      more reform is needed
      and will happen