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Commission recommends tainted judges to Ukraine’s new Supreme court, ignoring disapproval of society

Activists in monster costumes hold protest hear the building of the Supreme Court appealing to the HCJ to not approve tainted judges. They were appointed anyway. Photo:
Commission recommends tainted judges to Ukraine’s new Supreme court, ignoring disapproval of society

The process of forming the core judicial institution in Ukraine, the Supreme Court, is almost completed. The High Council of Justice recommended 111 candidates for the positions of judges. The next step is for them to be appointed by the president Petro Poroshenko. Meanwhile, reform activists sound the alarm once again. They warn that more than 22%  of the candidates do not fit the criteria of integrity and professional ethics. Moreover, among the recommended candidates, two judges are responsible for putting acting Prosecutor General Yuriy Lutsenko behind bars in 2012.

In 2014, the case was considered politically motivated and he was released, which presents a legal conundrum: either the supposedly “renewed” judges in Ukraine’s new Supreme Court have a track record of serving political interests, or Lutsenko should still be behind bars.

Initially, the High Qualification Commission of Judges (HQCJ) recommended 120 candidates to the High Council of Justice (HCJ). The Public Integrity Council (PIC), the body formed out of the activists to assist HQCJ on revealing professional ethics and integrity of judges, announced that 30 candidates did not fit the criteria. They insisted these candidates should not be appointed and stated that the Supreme Court can function if there are 65 judges in it. It seemed a better alternative than appointing for life corrupted and ready to take political decisions people.

But in the end, the HCJ disapproved only two candidates. One of them has a negative opinion from the PIC. The consideration of seven candidates is put on hold, out of which four have negative opinions from the PIC.

However, if the PIC checked only the integrity of candidates, the HQCJ was responsible for checking their qualification. Now, the issue of whether the candidates are professional enough to serve in Ukraine’s top court remains unclear. And there is a particular reason for that.

Questions to the candidates’ qualification

The HQCJ is a body formed of judges elected by judges who should look to the situation from the judges’ point of view. So initially this body represented the system which, according to the logic of the reform, should have been cleaned.

The suggestion of the activists to facilitate the renewal of the system by setting a 50% quota for new Supreme Court members to not have a judge’s background was not approved.

Mykhailo Zhernakov, the Director of DEJURE foundation, member of the Public Integrity Council, and an expert of the Reanimation Package of Reforms explained why appointing old experienced judges is not a good idea for Ukraine.

“They carry with them a bad experience which we do not want to have in the new judiciary,” said the expert and added that Ukraine would never have launched a new selection to the Supreme Court if it wanted to keep everything as it used to be.”

Still, at the beginning of the competition, there were more chances to new people to come to the new Supreme Court. Later, their chances were reduced.

These and other aspects raised questions about the integrity of the competition itself.

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.

The professional and psychological test left a fairly wide area for maneuvering for the members of the HQCJ. So they are responsible for selecting of almost every candidate.

Questions to integrity

The were several ways how PIC checked the integrity and professional ethics of the candidates:

  • The body had free access to all the state registers.
  • It also had analytical references from the National Anti Corruption Bureau which contained a lot of information from other sources.
  • It analyzed the judges’ assets declarations, which are publicly available, and their declarations of integrity.
  • It analyzed judicial dossiers.
  • Via the site of the PIC, they also received messages from people who possessed information on several judges – on their decisions and assets. The members of PIC used it in their conclusions too, of course, after fact-checking.
  • The information from open sources, for example, media investigations, were also carefully checked.

A negative PIC opinion means that the body has proof that a candidate does not fit the criteria of professional ethics.

In result, among the candidates recommended by the HQCJ, there were 30 dishonest judges involved in different kinds of controversial cases. There are candidates whose lifestyle does not correspond to their income and those who provided false information in their property declarations.  Here is a brief description of other cases.

Unjustified conviction as a solution for solving business problems.

Stanislav Holubytskyi participated in sentencing a person to life imprisonment without due evidence. Ukrainian Ombudsman Nina Karpachova said this decision was used to solve a conflict between business structures.

Gross violation of right to a fair trial

After years of court hassles, a 97 year-old-granny sued the Supreme Court of Ukraine in the European Court of Human Rights for not giving her the right to a fair trial and won. But the Supreme Court ignored the decision of the European Court of Human Rights! Supreme Court candidate Inna Berdnyk was on the panel of judges who made this decision.

Banning peaceful assemblies.

Several judges among the candidates barred activists from peaceful protests. In result, historical buildings were illegally sold to businesses who planned to destroy them. Some decisions referred to the Soviet legislation, ignoring the Constitution of Ukraine.

Cover-ups for judges who prosecuted Euromaidan activists.

During Euromaidan Revolution some judges had arbitrarily arrested activists or taken away their driving rights. A number of candidates to the new Supreme Court protected these judges from being fired.

Political Prosecution.

The judges Serhii Slynko and Viacheslav Nastavnyi made the final decision to imprison Yuriy Lutsenko, an opposition politician in the times of ex-president Yanukovych. On February 2012, the Kyiv Pechersk District Court sentenced Lutsenko to 4 years with the deprivation of the right to hold positions related to the implementation of organizational and administrative duties at enterprises, institutions, organizations of all forms of ownership for a term of 3 years, with the confiscation of all the property belonging to him personally and with the deprivation of the 1st rank of a civil servant.

The European Court of Human Rights established that the decision on Lutsenko violated provisions of the European Convention on Human Rights and Fundamental Freedoms. Lutsenko was released in April 2013, being pardoned by a presidential decree.

In March 2014, after the Euromaidan revolution, the Pechersk Court in Kyiv canceled the decisions on Lutsenko and recognized him a political prisoner. This decision was made because of coming into force the law “On the rehabilitation of individuals to comply with the decisions of the European Court of Human Rights.”

So, should Lutsenko be fired now, or should these judges not be appointed to the new Supreme Court?

Now president Poroshenko has to appoint the candidates recommended by the HQCJ. In case he does it, 25% of the judges of the new Supreme Court will be dishonest. In case he does not, it means that the president has an influence on the judicial system, despite the fact that it was proclaimed that the influence of the influence on judiciary now is nominal.

Meanwhile, there are candidates who got to the list of 111 recommended judges who promised to fight for fair justice from the inside.

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