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David and Goliath of Ukraine’s judiciary: new civic society watchdog to face old problems with the system

Members of the new Public Integrity Council (not all of them are on the picture). Photo: Euromaidan Press.
Edited by: Alya Shandra
Refreshed, matured, and with a better sense of reality, representatives of civil society prepare to continue the fight for judicial reform in Ukraine. On December 17, the new squad of the Public Integrity Council, the civil society watchdog in the judiciary, was elected. The term of the office of the previous one expired after two years. The watchdog consists of 20 members — ten members of the previous squad were elected to the body again, another ten are new.

During the last year, the difference between the views of civil society and representatives of the government, including the bodies of judicial self-governance, on the reform became even more dramatic. The civil society draws attention to absurd appointments and dubious decisions. For example, judges who were involved in political persecution now work in the new Supreme Court.

Also, last week society was outraged by the decision of the Kyiv District Administrative Court to reinstate the ex-Fiscal Service Chief Roman Nasirov, who is suspected in large-scale corruption, in his position. The court claimed that the procedure for his dismissal was allegedly violated, but in this ignored the principle of proportionality between public and private interest.

Meanwhile, the author of the judicial reform president Petro Poroshenko reports on its successful completion. In addition, the High Qualification Commission of Judges (HQCJ), the body of judicial self-governance, praises transparent competitions to the new Supreme Court and the High Anti-Corruption Court.

In their turn, ordinary Ukrainians, as well as the civil society watchdog, have rather negative feedback for the judiciary. According to the recent research on corruption perception conducted with the support of USAID, 332 out of 10,000 respondents had interacted with the judiciary; 48%  of them said they had encountered corruption there.

It’s fair to say that after the last incident with Nasirov even the president had to indirectly recognize: in fact, the reform has not been completed.

“As far as I know, the judge who made the decision is not a representative of a reformed court. She had not gone through the corresponding test and assessment. However, I can be mistaken,” said the president.

Mykhailo Zhernakov, head of the DEJURE Foundation and the member of both the previous and new squads of the Public Integrity Council (PIC) is confident that the Kyiv District Administrative Court is one of the most problematic ones. According to him, it was created during the times of disgraced ex-President Viktor Yanukovych to make politically motivated decisions.

“It should have been the first to go through the qualification assessment. Unfortunately, so far only some of its judges went through the process,” Zhernakov told Euromaidan Press.

In general, the process of the qualification assessment of judges became the last straw which made the cooperation between the previous squad of the (PIC) and the HQCJ almost impossible. The role of the PIC is to assist the HQCJ in assessing the integrity and professional ethics of judges. However, according to the law on the work of civil society, the watchdog is not entitled to any state financial support and their operational resources are quite limited, unlike the bodies of judicial self-governance.

“It is illogical to give so much duties to a body and to expect that it would work on a volunteer basis. The financial support from western partners might be a solution, but only a temporary one. In the long-term prospective we should change the legislation which would foresee material and technical support for the PIC from the state budget,”  says Halyna Chyzhyk, member of the previous and new squad of the PIC.

The major conflict has happened in March 2018, after the HQCJ changed their regulations in a way that in fact would have blocked the work of the PIC. Also, the fast-paced assessment of judges, whose interviews lasted some 6 minutes each, and other circumstances gave the PIC experts reasons to conclude that the HQCJ is faking the entire process, with no intention of weeding out the compromised judges. What is also noteworthy, 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. The civil society watchdog decided that in this situation they would be playing the role of a cover for the fake assessment and serving as proof for the “successful reform” and stopped their official participation in the process.

Officially, the HQCJ continued the qualification assessment without the PIC. Up to November 2018, the HQCJ assessed around 2,000 judges out of about 5,500. Only 6% were recognized as not fitting their positions. The old PIC, in their turn, still analyzed the candidates informally, with their limited resources. They decided that 81 judges did not meet the criteria of integrity and professional ethics, and told the HQCJ about their suspicions regarding 67 more judges. This is probably only a fraction of the true number of compromised judges. Back in 2017, when the PIC was working in full swing on assessing the candidates to the Supreme Court, they found that at least 29 out of 118 judges that the HQCJ OK’d had shady income or a track record of political persecution.

Ukraine’s western partners organized the mediation process between the HQCJ and the PIC. About 20 meetings were held, but they did not bring results.

In September, the Supreme Court ruled that the HQCJ’s actions limiting the work of the PIC were unlawful.

Read also: Civil society growing tired: public watchdog withdraws from Ukraine’s “faked” judicial reform

The old problems of the PIC are relevant for the new squad as well. Their resources are still limited and the conflict with the HQCJ regarding the qualification assessment is not solved.

“The new PIC will form its position regarding the assessment. I personally intend to analyze as many judges as possible. Also, my personal position is that without considering the question on the regulations of the HQCJ and other things which made the previous squad of PIC withdraw from the process, without deciding how to cooperate with the HQCJ, we won’t be able to pretend that nothing happened and work as usual,” says Zhernakov.  

Iryna Shyba, Senior Project Manager of the DEJURE Foundation, describes other challenges which the new PIC will face and possible solutions for them in her article. Among them there are:

  • Agreeing on the criteria of integrity, as so far the HQCJ viewed any doubts regarding a candidate in his favor.
  • Looking possible funding options. Shyba explains that the money is needed not only for the work of the PIC members (in which they are involved almost full time on a volunteer basis), but for the  organization of meeting, discussions, support of the site, communication with candidates and judges. The expert says that the money can possibly be allocated through amending the law On the Judiciary and the Status of Judges.
  • Forming of a precise schedule of the interviews with candidates and judges. Now the HQCJ forms it without discussing it with the PIC.

So far, there are several ongoing processes which foresee the participation of the PIC — competitions for additional positions of judges of the Supreme Court, to the Court of Intellectual Property and the qualification assessment of judges. Soon the competition to the Appellate Chamber of the High Court on Intellectual Property will start.

Also the competition to the High Anti-Corruption Court is ongoing. According to the law, the PIC is not officially involved in the process. This time, its role, albeit with some functional differences, will be implemented by the Council of International Experts. Nevertheless, several civil society organizations already started their unofficial evaluation of the candidates to the court. Zhernakov confirmed the readiness of the PIC to cooperate with the Council of International Experts and others involved in the process.

Edited by: Alya Shandra
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