As the reform of the key judicial institution in Ukraine, the new Supreme Court, draws closer to the end, the differences between the views of representatives of civil society and state institutions on this process becomes dramatic.
The President Petro Poroshenko, who is considered the initiator of judicial reform, praised the competition to the Supreme Court and insisted that it was transparent. So did the High Qualification Commission of Judges (HQCJ), the selection committee made out of judges which chose which judges will go into the new Supreme Court, which sifted out 120 judges from the pool of candidates.
But activists headed by the Public Integrity Council (PIC), the body formed of representatives of civil society to assist the High Qualification Commission of Judges (HQCJ) to assess the professional ethics and integrity of judges, pointed at crucial violations of the procedure and complained that the HQCJ and the High Council of Justice (HCJ), the final instance which approved the list of the HQCJ, ignored most of their negative assessments of the candidates. The PIC says that of the 120 candidates that the HQCJ chose, 30 have a track record of unjustified wealth and dishonest decisions. The HCJ, in its turn, approved all but two candidates, of whom only one had a negative assessment by the PIC, and put seven on hold.
According to the activists, this allowed incompetent and dishonest representatives of the old corrupted system to make it to the final list of candidates to the Supreme Court.
On the last week of September, the list of 111 candidates who should be appointed by the President was released to the public.
– There should be a judicial decision on the violations which took place during the competition.
– The HQCJ and HCJ should explain the reasons why they rejected the PIC’s opinions on the candidates.
The official PIC statement says that the activists expect President Poroshenko, as the author of the judicial reform, to initiate an independent international audit to fix all the mistakes of the procedure of selection of judges, and reformat the judiciary bodies responsible for conducting the competition, meaning that changes will be made in the squad, structure, and procedure of their election.
At the beginning of the reform the activists didn’t confront the system, seeing space for compromises. Now they question whether the old system just used them:
“[The named violations] give us reasons to assume that the procedures of the competition were set for appointing predetermined candidates and that the Public Integrity Council was used for the legitimization of this process.”
So let’s take a look which arguments of the activists were ignored by the HQCJ and HCJ.
The violations during the process of forming the new Supreme Court
The Public Integrity Council points out at 3 major violations of the competition’s rules by the HQCJ:
- It established a third minimal score for the first stage of the qualification assessment of candidates but didn’t establish a minimum score for the evaluation of the personal and social competence of candidates.
- It refused to publicize the candidates’ results for the practical assignment, as well as the marks they received from the members of the Commission, and the marks they got according to the criteria of integrity and professional ethics.
- It did not explain why it rejected the PIC’s opinions.
The integrity and professional ethics of judges is a separate issue. The activists warn that over 22% of the candidates approved by the HCJ 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.
Among other claims towards candidates integrity there are:
- Unjustified conviction as a solution for solving business problems,
- Gross violation of the right to a fair trial,
- Banning peaceful assemblies,
- Cover-ups for judges who prosecuted Euromaidan activists,
- A lifestyle way too luxurious for their official income.
The Center for Policy and Legal Reform NGO raises a few more issues about the transparency of the competition:
- Communication devices were not taken away from candidates during the practical part of the competition.
- Despite the fact that meetings of the HQCJ were open, it is impossible to check whether the results are fair. The NGO states that there is information which hints there is no correlation between the performance of a candidate during the competition and his/her results.
They also complain that to one of the members of the HCJ (Hrechkivskyi), who participated in the decision-making process regarding the candidates, has been accused in attempted fraud on an especially large scale. Also the Head of the HCJ (Benedysiuk) when being a judge received a state award from the President, despite this being illegal.
The activists are concerned that in the future politicians can use the mistrust of society to the way how the Supreme Court was formed to reformat the judicial system according to their interests. They state that it is important to create a Supreme Court which society can defend in the future.
The representation of the EU in Ukraine also called on HCJ to explain selection candidates with a tainted reputation, the Ukrainian outlet UNIAN wrote.
- Commission recommends tainted judges to Ukraine’s new Supreme court, ignoring disapproval of society
- Will Ukraine finally have a new judiciary? Explained by the Public Integrity Council
- Activists: with failed new Supreme Court, we can “forget about democracy and justice” in Ukraine
- EU Delegation, civic society insist Ukraine show the door to dishonest Supreme Court candidates
- Judiciary reform under threat because of the old new Supreme Court
- Here’s a hit parade of judges who might return the worst days of Ukrainian justice
- “The evil ethos of impunity and corporatism has been broken” – expert about Ukraine’s judicial reform
- 90% of Ukrainian judges who prosecuted Euromaidan activists still in office – lustration committee
- “Ukraine’s former judicial system crumbles” – lawyer who made it to the new Supreme Court
- “Ukraine finally to have independent judiciary.” Interview with Head of Qualification Commission of Judges