Judicial reform has a special place in Ukraine. It was one of the most demanded changes since Ukraine’s independence in 1991, and potentially was among the hardest ones. After Euromaidan, the renewal of the judiciary was placed high among the list of tasks, with 46% of respondents of a survey in 2015 noting it’s one of the most urgent ones, and 81% of respondents distrusting the courts. This is natural: even the best laws are worthless if there are no independent judges to punish the violators. “There is no more important reform than the judicial one,” President Poroshenko told the parliament in 2016 prior to the vote for changing Ukraine’s Constitution which launched the reform.
- It is a success, passes with the active involvement of civil society, and is nearly completed.
- Judicial reform in Ukraine was faked, and civil society was used to legitimize it.
The first opinion belongs to the government and President Petro Poroshenko who initiated the reform and controlled it himself. The second one belongs to the civic watchdog Public Integrity Council and other representatives of civil society.
The Public Integrity Council (PIC) is a body made of representatives of civil society to assist the High Qualification Commission of Judges (HQCJ), a selection committee of judges which was tasked to assess the professional ethics and integrity of judges. The PIC, which some believe to be a unique judicial phenomenon, was created in 2016 according to the Law on Judiciary and the Status of Judges, which were part of the judicial reform. In 2017, the body was actively involved in the process of selection of judges to the Supreme Court, repeatedly claiming that the HQCJ neglected their opinions and conclusions, essentially rigging the selection. In the end, the watchdog stated:
“The Public Integrity Council demands to stop misleading society in public speeches of the President in regards that during the competition to the Supreme Court the position of society was taken into account as much as possible. The Public Integrity Council totally disagrees with this statement and considers that we were used to legitimize the needed result in the eyes of society and the international community.”
However, the reform is ongoing. And one of its next steps is the process of evaluating existing judges, with the goal of purging unfair judges from the judiciary, one of the demands of the Euromaidan Revolution. PIC sees the situation differently – the process is used to increase the salaries of judges and the HQCJ is not really interested in a real evaluation.
The reform foresees increasing the salaries of those judges who passed the evaluation. Theoretically, a judge who is paid more will be less susceptible to bribes. In the next few years, the salaries of local judges would rise to UAH 62,000 ($2,400) – UAH 428,000 ($16,300) a month, depending on the qualification. Quite a difference compared to the average Ukrainian salary of $300 a month.
Between themselves, the members of PIC had earlier discussed withdrawing from the process, but still had some hope that the situation can be improved. On Friday, 23 March 2018, the first interviews with the judges were held and they were the last straw: no judge was disqualified, and the PIC’s conclusions were not considered because procedures were changed. The members of PIC assessed the situation as hopeless and unanimously decided to withdraw on 26 March 2018:
“The aim of the process should have been the dismissal of judges who do not correspond to the requirements – those do not fit to criteria of integrity and professional ethics, those who can’t prove the legitimacy of origins of their assets. The beginning of the process on Friday showed that our previous suggestions were true – the process is a conveyor with only one goal – to report on the completion of the judicial reform as soon as possible,” said PIC member Halyna Chyzhyk.
Mykhailo Zhernakov adds that the PIC members were driven by the new rules which the HQCJ applied during the first interviews. They are:
- The extremely brief interviews. The interviews with judges which started last week lasted about 6 minutes each. “They are going to evaluate some 5,600 judges in a few months, which is unrealistic. You can’t evaluate 200 people in a week,” says Zhernakov.
- The HQCJ changed its regulations, making it harder for the PIC to submit their conclusions. According to the new regulations, the HQCJ will only accept PIC’s conclusions if they are submitted no later than 10 working days before an interview, and with the signatures of all of PIC members. It is due to this change in regulations that the HQCJ dismissed all PIC conclusions on the first day of interviews with judges.
However, the PIC believes it is not obliged to conform with the HQCJ’s changed regulations, and even if they would want to, it is impossible to fulfill these demands taking into account the amount of work which the members of PIC spend on researching a single candidate. Moreover, the HQCJ would not be obliged to take the PIC’s research into account in the first place unless there was a ruling by a court or the National Agency for Preventing Corruption against a judge.
- Non-transparent procedure for evaluating judges. It is not clear on which basis the HQCJ rates the candidates, and it is unknown how each judge evaluated a candidate.
PIC members say hey repeatedly appealed to the HQCJ to change these provisions with no result, and that now their resources for a dialogue have run out.
“Society’s involvement in the process used to be the basis of the reform. … Now, there is no involvement of society in it anymore,” says PIC member Roman Maselko.
The members of PIC demand to carry out an impartial evaluation of the judges.
“A real evaluation is possible if the rules are changed – the terms for the evaluation should be realistic, the illegal provision of the regulations of the HQCJ should be canceled. The integrity of the HQCJ should be reconsidered as its members have conflicts of interests. Also society should be actively involved. Not like now, when society serves just as a cover, but has not power to influence the process,” says Zhernakov.
The members of PIC emphasized that there are members of HQCJ who a priori can’t be doing the evaluation, naming several members who didn’t declare their assets or couldn’t prove that they acquired them legally. Also, one of the members of the HQCJ used falsified documents to get appointed.
Despite such a radical decision, the members of PIC state that their fight for cleaning the judiciary will continue, but with other methods. These other methods include criminal cases and disciplinary measures regarding the judges.
“We also continue to work to cleanse the new Supreme Court from unfair judges. There are criminal proceedings regarding the acting judges, there are facts of improper declaration [of assets], falsification of documents, more than 100 claims regarding the judges of Maidan,” says Maselko. In 2017, the selection of judges to the Supreme Court was finished, despite the PIC concluding that 22% of its new judges had a tainted reputation.
The members of the body say that in general the situation can be improved by giving more powers to the PIC and by changing the composition of the HQCJ. They say that legally, the PIC was not given instruments to influence the process. Also the members of the public body are volunteers and work for free, unlike the HCQJ. In the summer of 2017, Zhernakov told told Euromaidan Press that members of the Commission are paid $9,000 monthly for their work of evaluating the candidates for the Supreme Court.
PIC not “civic society” but public body
However, not all representatives of civil society have hailed the PIC’s decision. Taras Shevchenko, co-chair of the Reanimation Package of Reforms NGO coalition and head of the Center for Democracy and Rule of Law which helped launch the PIC, wrote on fb that after legally receiving powers, PIC changed its status from “civic society” to that of a special body that operates in the justice system, and can’t just lay down its duties.
“You can’t simply say ‘we won’t do what we were formed for doing.’ You can resign, but we must understand that the next composition of the PIC is likely to be worse. So, the bad guys win. … Even one fired dishonest judge is a contribution to fair justice. If the PIC can influence 10 or 100 judges which will not pass the qualification assessment, this should be done, focusing on the most odious ones,” he added.
At the same time, Shevchenko agrees with PIC members that the main problem of the judicial reform is that the HQCJ’s is a body of judges tasked with selecting judges, which under Ukrainian conditions means a bad result a priori. The PIC believes that allowing society to do the selection would improve the situation. However, under the current circumstances there is no time to work out such a model. PIC members say that a discussion over the general concept will take time. But the process of evaluating judges is urgent: spending time on discussions now will just let the HQCJ and the president to reach their goal – completing the imitation of the reform.
HQCJ claims there is a crisis of judicial power in Ukraine
The HQCJ itself has dismissed all accusations, considers its actions legal, and that it has a right to establish the rules for the PIC’s work.
“The PIC is a part of our procedure. This is why we established the rules which regulate its process and order. We didn’t introduce anything unconstructive or humiliating,” the HQCJ secretary Stanislav Shchotka told DW.
According to him, by introducing new demands for the PIC’s paperwork, the HQCJ protects itself from lawsuits of judges who will be fired.
The HQCJ members explain the hurry by claiming that otherwise judicial power in Ukraine will collapse. According to HQCJ Head Serhiy Koziakov, 1,500 judges resigned because the qualification assessment started, there are too many vacancies, which creates what he called a crisis situation in select courts.
During a briefing in the Ukrainian Crisis Media Center, Shchotka said the HQCJ will continue collaborating with the HQCJ by “continuing to ask for information from the PIC,” which according to him, is a “valuable source when the paperwork is done properly.” In his turn, Koziakov noted that the PIC’s withdrawal from the judicial reform will not influence the HQCJ’s work: “We don’t see that the HQCJ’s work is delegitimized and will continue our activities.”
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