About a month is left until Ukraine makes the decision which will define its future for the next decades. The candidates to the new Supreme Court, the core judicial institution influencing processes in all the areas of life, have been selected. Opinions about this potential squad differ dramatically.
Ukrainian President Petro Poroshenko and the High Qualification Commission of Judges who were responsible for selection praise the transparent process of the competition and claim that Ukrainian judiciary will finally be independent. However, the activists and the Public Integrity Council, the public body created to assist the High Qualification Commission to assess the professional ethics and integrity of judges, sound the alarm – too many candidates do not fit the criteria. This endangers the whole reform.
Before the final list was released, Euromaidan Press published an interview with Serhiy Koziakov, the Head of the High Qualification Commission of Judges (HQCJ), representing the opinion of the body on the competition to the Supreme Court. Now, we also want to present the other side of the story – the competition and the results as seen by the activists and the Public Integrity Council (PIC).
The list of finalists consists of 120 candidates – 30 for each of the four courts of Cassation (administrative, criminal, civil, and commercial). The activists complain that 30 out of the 120 do not fit the criteria of integrity and professional ethics. Another drawback, they say, is that 83% of the candidates are acting or retired judges, meaning they players of the old system. The next step is for the High Council of Justice to vote for the candidates, and then to have them appointed by President Poroshenko. The activists say that the situation can still be improved.
The candidates who do not fit the criteria
To understand why the Ukrainian judiciary is in danger because of these 30 candidates, the activist gave an example of political persecution of Yuriy Lutsenko, the current Prosecutor General and former Minister of Interior who in February 2012, during the presidency of Viktor Yanukovych, was sentenced to jail.
“Two judges [Serhiy Slunko and Viacheslav Nastavnyi] who made the final decision against Yuriy Lutsenko, are recommended for appointment as new criminal judges for the Supreme Court. Then, the decision was recognized by the Council of Europe as a political prosecution,” says Anastasia Krasnosilska an advocacy officer at the Anti-Corruption Action Centre.
“There can be only two options for the case – either Yuriy Lutsenko is a criminal and should be fired, or the person who made it to the final list can’t become a judge of the new Supreme Court,” said Leonid Yemets, an MP, First deputy chairman of the Verkhovna Rada Commitee on Legal Policy and Justice.
The activist also described the situation at each Court of cassation.
- The PIC gave negative assessments to ¼ of the judges in the Administrative Court, mostly because of their unjustified assets, participation in political prosecution, and taking decisions that were confirmed to be violations of human rights. This court makes the final decisions in all the cases where Ukrainians challenge the activities of Ukraine’s branches of power, them being judicial, executive, and legislative.
- The Criminal Court makes the final decisions in the cases that are now investigated by the National Anti Corruption Bureau. According to the results of the competition, each and every panel that will deal with these corruption cases will have people who have experience in political prosecution.
- In the Commercial Court and Court of Cassation each, ¼ of the judges will have unjustified assets and/or a track record of political prosecution and violation of human rights.
In his interview with Euromaidan Press, Mykhailo Zhernakov, the Director of DEJURE foundation, member of the Public Integrity Council, and an expert of the Reanimation Package of Reforms, gave this example of an absurd result: “The judge Olha Stupak during the interview [to the PIC] said she can’t prove the origins of the money with which she purchased two apartments.”
Zhernakov emphasizes that the Сonstitution of Ukraine puts the responsibility to prove the origins of assets directly to the judge. The inability to prove it is a reason to fire a judge, not even mentioning appointing to a lifelong post. According to the 6th European Convention, the decisions of such a judge is a gross violation of human rights.
Some attorneys and legal scholars who took part in the competition also received negative conclusions from the PIC.
What about the rest?
In case the High Council of Justice will not approve some candidates, the principle of ranking in priority will not be applied and there will be less than 120 judges in the Supreme Court.
According to the PIC, not only the above mentioned 30 judges should be under strict supervision before the appointment. The Public Integrity Council had two kinds of conclusions on the candidates:
- an “opinion” which means there exist proven facts that the candidate doesn’t fit the criteria;
- “information,” which casts a shadow on the reputation of a judge, but does not contain evidence of misconduct.
PIC provides both types of conclusions to the HQCJ. Both could become the reason for a further investigation by the HQCJ, or be dismissed.
Zhernakov highlights that “information” can also prove dishonesty of a judge:
“It’s not proven that the rest [out of 30] are honest. Maybe, we did not work on them enough or maybe they did not show off their assets. Maybe, they were not noticed in making odious decisions, but in general they are ready to serve politicians or they are corrupt.”
Still, the activists say that it is important to create the Supreme Court and they do not aim to derail the competition. According to them, 65 judges is a sufficient number for the proper functioning of the Supreme Court.
Only a light renewal
The activists and PIC also complain that 93 out of 120 candidates are acting and retired judges and only 27 are attorneys or legal scholars. Moreover, they claim that if the whole list will be approved, the new Supreme Court will be 54% old.
However, the Presidential Administration claims that the new Supreme Court will be 95% new. Let’s clarify why the numbers are so different.
“The claims of PR managers of Presidential Administration is a very sophisticated manipulation,” says Krasnosilska. “How do they calculate it? They take the existing composition of the Supreme Court and say that only 5 people made it to the final list to the new Supreme Court. But we also have high specialized courts which also act as Courts of Cassation right now. And with the judges of the existing high courts, the Supreme Court would be 54% old.”
From the point of view of Ukraine’s partners, appointing professional judges with experience is not that bad. However, for Ukraine the situation looks different:
“They carry with them a bad experience which we do not want to have in the new judiciary,” says Zhernakov, and adds that Ukraine would never have launched a new selection to the Supreme Court if it wanted to keep everything as it used to be.
“The president who is an author of the reform and other stakeholders who actively promote the reform say that we involved candidates from outside of the system. We allowed attorneys and legal scholars to take part in the competition because we did not and do not trust the current judges,” says the expert.
In his opinion, keeping more than 80% of old judges is not a good indicator for the renewal. However, the suggestion of the activists to set a quota – to have 50% of people out of the system – was not approved at the official level.
The interaction between HQCJ and PIC
Further, we provide the answers of Mykhailo Zhernakov which represent the position of the Public Integrity Council on the aspects of the competition to the Supreme Court discussed with Serhiy Koziakov.
How did you check whether candidates fit the criteria of integrity and professional ethics?
According to the law, we had free access to all the state registers. We had analytical references from the National Anti Corruption Bureau which contained a lot of information from other sources. We had the judges’ assets declarations, which are publicly available, and their declarations of integrity. We had their judicial dossiers. We fought with the HQCJ for it, as they did not want to make them public. Via the site of the Public Integrity Council, we also received messages from people who possessed information on several judges – on their decisions and assets. We used it in our conclusions too, of course, after fact-checking. When we say that we take information from open sources, it does not mean that we republish some article and say that this is a bad judge. It means that we carefully check all the circumstances which were the reason for a journalist investigation or some other media material.
Who identified the criteria?
We matched all this information to the criteria determined by the HQCJ. One of the main documents for us was the assessment methodology of the HQCJ. Because according to the law, we are the body which helps it in the assessment. Other important documents were the declarations of Integrity filed by the judges. And also the Bangalore Principles of Judicial Conduct which is a UN document. Ukraine is a part of UN so we also signed it.
In his interview, Mr. Koziakov said that PIC had too little time to assess an enormous quantity of information and speak with candidates, is it true?
It’s true that we all had little time. We and them had a lot of work. Our priority was qualitative conclusions. The time will show how we managed to do it. And the practice already shows. Unfortunately, by far not all the conclusions were taken into consideration. However, we had no time to do another job. We had neither an office, nor financing. We did not do a lot of the needed public communication. We were reproached for having no methodology. In fact we had it, it just was not described.
However, Mr. Koziakov said that the lack of time influenced the quality of the conclusions of PIC.
Often we hear one example from the HQCJ. It says that allegedly we found some car [belonging to a judge] and wrote in the opinion that we found signs near a garage and made undeniable conclusion that a judge has it. Unfortunately, it looks like a manipulation. Because it was not the reason for the opinion. It was additional information which we had to give to the HQCJ according to the law. Often the HCQJ portray this and similar episodes as the reason for our opinions. And then say that there is a lot of such cases. I do not say that we are definitely right in everything. In the cases when the candidates refuted some information during the interviews, we canceled our opinions. For example, there could have been a mistake in the register, or a car could have been sold and the register was not updated.
So these 12 cases when the PIC canceled its opinions are related to interviews with candidates?
Yes, it happened after the interviews. One thing we could not do because of the lack of time and resources is to communicate with candidates before making decisions. However, now we see that it makes sense and has to be done. Because it gives an opportunity to write to a candidate before making a conclusion – to ask something or to write the reasons which made us doubt his or her integrity and professional ethics and to receive a comment or refutation. I think we will changes this practice. We canceled some opinions because we looked at things objectively.
According to your words, it seems that HQCJ has more resources for communication than PIC?
The HQCJ’s building has 6 floors, not counting the canteen one. If I am not mistaken, every member of the commission has 4 inspectors. They can go and check the information. I think that every member of the commission receives at least UAH 225,000 (nearly $9,000) per month. We do not have anything like that. Everything we did was done by ourselves. Of course, they also have a communication department and a special department for communicating with international partners. The members of the PIC did everything on a volunteer basis. So of course there was a lack of communication from our side. It gave the HQCJ and those who do not like the idea of the competition the opportunity to represent their position more actively. Also there was a dirty campaign against the PIC. It contained the information that allegedly the European Council smashed the PIC. However, it did not correspond to reality. But we could not resist it because of the lack of resources.
Is there a conflict between PIC and the HQCJ?
I would not say so. We have questions to each other. The law says that we have to be partners. The idea of the legislator was to have two bodies. One consists of judges elected by judges who should look to the situation from the judges’ point of view. The second body should consider things from the point of view of society. The aims of these bodies should have been the same – to clean the judiciary from dishonest and unqualified judges. Unfortunately, we see that the HQCJ wants to maintain the previous state of the judiciary. I would say that our aims differ. However, we started to work on replacing existing confrontation with collaboration.
The activists put the responsibility of dealing with the situation with the Supreme Court on President Poroshenko, as he is the person who launched the judicial reform. They also hope that due to the attention to the process, during this month the situation can be improved.