The judicial reform launched in Ukraine in 2016 foresaw the creation of the new Supreme Court. In general, changes were aimed at renewing the old system and forming fair institutions. In the years since Ukrainian independence in 1991, courts lost the trust of society – in November 2018, only 16% of Ukrainians trusted the judicial system. Three key steps were made in an attempt to bring back the trust – people from outside the system (lawyers and scholars) were allowed to enter it, and the process of selecting new candidates was made more transparent. Last, but not least, the process should have taken place under the control of society. A civil society watchdog called the Public Integrity Council (PIC) was created for that reason. Its task is to assist the High Qualification Commission of Judges (HQCJ), the body of judicial self-governance, in assessing the integrity and professional ethics of future and current judges.
The first competition to the Supreme Court in 2017 served as an exam for the collaboration between the PIC and the HQCJ. It didn’t go well. The HQCJ ignored the majority of the PIC’s conclusions on dishonest candidates. As a result, according to the society watchdog, at least 29 of the 118 appointed judges of the Supreme Court have proof of being dishonest. Altogether, there are reasons to doubt the integrity of about a half of them.
Later, during another stage foreseen by the judicial reform, the qualification assessment of old judges, the relationship between the PIC and the HQCJ became even worse. The Commission changed their own regulations in a way that in fact blocked the work of the PIC, namely – put forward unrealistically short deadlines for the PIC to provide its conclusions. The PIC members did not want to serve as a cover for unfair assessment of judges and left the process in March 2018. A mediation process for the two bodies organized by Ukraine’s western partners did not bring results. The Commission moved on without society and assessed nearly 2,000 judges. The watchdog, in its turn, assessed the integrity of judges to inform society.
As the term of the office of the old squad of the PIC expired after two years, a new team was elected in December 2018. It contains 20 members – ten from the previous squad, ten new ones. Despite the conflict with the HQCJ remaining relevant for the new PIC as well, they decided to officially participate in the selection of judges to the Supreme Court. Now, the competition is taking place for 78 positions in the court.
“Participation in the selection of judges was the first decision we made, because this process is highly important,” Mykhailo Zhernakov, the coordinator of the PIC and the head of the DEJURE Foundation, said. He explained that the Supreme Court is the highest court institution in Ukraine. It will also consider the cases of the new Anti-Corruption Court in the cassation instance.
Roman Maselko, lawyer and another member of the PIC, added that they realized that the process without them would be even worse.
The PIC still tries to reach a compromise with the HQCJ. A minor change has been agreed – the commission consented to change their regulations regarding the deadlines for the PIC to submit their conclusions – from 10 calendar days to 10 working days.
Still, time remains a very scarce resource for the PIC. Aside from their regular work, the PIC members, who are all volunteers, not only review open source data but analyze the requests of citizens, information of the National Anti-Corruption Bureau, write requests in order to assess the candidates for judges. The first interviews of the candidates are scheduled for January 23.
Another weak point of the process is that the HQCJ has not disclosed their criteria for assessing the integrity of the candidates. While the PIC has their criteria, which are also used by the international experts who take part in the selection process for the Anti-Corruption Court judges, the absence of clear criteria of the Commission opens the door for manipulations.
As of now, the PIC has analyzed 62 candidates out of 235 and has concluded that 16 candidates have breaches of integrity and professional ethics. Another challenge for the watchdog is to provide judges with the right to reply. The task is not easy because the body simply does not have the contacts of many candidates.
The representatives of the PIC admitted that the new competition to the Supreme Court is being rushed. Maselko noted that it appears the rush is taking place so the court is formed before the presidential election takes place in March 2019. He finds this terms unjustified and questions whether the president himself influences the process and whether incumbent President Poroshenko, who is considered the author of the judicial reform in Ukraine, is influencing the Commission to appoint loyal judges.
