The High Council of Justice earlier this week appointed at least 17 candidates with questionable integrity to the Supreme Court and the High Anti-Corruption Court.
Previously the candidates were nominated by the High Qualification Commission of Judges. Their credentials have yet to be signed by the president.
The council is likely to appoint eight other controversial judges to the Supreme Court and the High Anti-Corruption Court later this month.
The Public Integrity Council, the judiciary’s civil society watchdog, argues that the High Council of Justice and the High Qualification Commission of Judges arbitrarily manipulated the ranking of candidates for the top courts to promote political loyalists.
The judicial bodies’ assessment methodology for candidates has been criticized as arbitrary, and they have been accused of failing to state explicit reasons for the appointments.
The High Qualification Commission has denied accusations of wrongdoing.
The developments have already triggered international condemnation. Marie Yovanovitch, the U.S. ambassador to Ukraine, on March 5 said that tainted candidates should not be appointed to the Supreme Court and that the Public Integrity Council should be given more power to prevent the appointment of corrupt judges.
Another proposal by anti-corruption activists is to ensure that civil society representatives are appointed to the High Qualification Commission and make up a majority of the commission’s members.
Supreme Court
In total, the council appointed 69 Supreme Court judges late on March 20.
The appointees include 10 out of the 16 Supreme Court nominees who had been vetoed by the Public Integrity Council over violations of professional ethics and integrity standards.
Several new Supreme Court judges, including High Council of Justice Chairman Igor Benedysyuk and High Council of Justice members Tetiana Malashenkova, Natalia Volokovytska and Mykola Husak are accused of having a conflict of interest because the High Council of Justice appoints Supreme Court judges. They have denied there is such a conflict.
Georg Stawa, the ex-president of the European Commission for the Efficiency of Justice, told the Kyiv Post the judges should step down from the council as soon as possible due to this conflict of interest. However, they have refused to step down, although the High Council of Justice said they would just abstain from making decisions on Supreme Court nominees.
According to his official biography, in 1994 Benedysyuk was simultaneously a judge of a Russian court martial and a Ukrainian one. Russian citizenship was a necessary precondition of being a judge under Russian law, and Public Integrity Council members suspect he either used to have or still has Russian citizenship.
Benedysyuk denied having been a Russian citizen, but failed to clarify when he received his Ukrainian citizenship or explain how he could be a judge in Russia without having Russian citizenship.
Benedysyuk, who still remains a judge, was also awarded a weapon by President Petro Poroshenko in 2015, even though the law bans such awards for judges, according to the Public Integrity Council. Benedysyuk, who was appointed to the High Council of Justice by Poroshenko, argued that the award was lawful.
Malashenkova, another High Council of Justice member and newly-appointed Supreme Court judge, worked as a lawyer for President Petro Poroshenko’s Ukrprominvest group in 2001 to 2005 and was a candidate for parliament from the Poroshenko Bloc in 2014. She was appointed to the High Council of Justice by Poroshenko in 2015.
The Public Integrity Council also accused Malashenkova of covering up for judges who unlawfully tried EuroMaidan protesters and violating asset disclosure rules. She denied the accusations of wrongdoing.
Another controversial Supreme Court appointee is Maksym Titov, the son of High Qualification Commission member Yuriy Titov, who has been accused of having a conflict of interest in this case, although he denies this.
Maksym Titov was also accused of unlawfully trying EuroMaidan protesters but denies all accusations of wrongdoing.
Some of the new Supreme Court judges have been investigated over illegally interfering in the automatic distribution of cases and issuing unlawful rulings at the High Commercial Court under former Ukrainian President Viktor Yanukovych. Ex-High Commercial Court Chairman Viktor Tatkov and his ex-deputy Artur Yemelyanov have been officially charged in this case.
Those under investigation include Benedysyuk and Volkovytska. However, they have not been officially charged in the case and have denied accusations of wrongdoing.
The High Council of Justice also delayed decisions on eight other nominees.
Meanwhile, the council rejected the candidacy of Judge Pavlo Parkhomenko, who had been nominated for the Supreme Court by the High Qualification Commission of Judges.
In January the DEJURE Foundation, a legal think-tank, awarded the prize of “Honor of the Year 2018” to Parkhomenko. DEJURE Foundation said that he had been meticulously protecting human rights while considering cases involving children and teenagers.
Anti-corruption court
The High Council of Justice also appointed 35 judges of the High Anti-Corruption Court.
These appointees include seven candidates for the High Anti-Corruption Court who had previously been identified by anti-corruption watchdogs as not meeting integrity standards.
The anti-corruption court’s legitimacy may also be undermined, since 10 tainted candidates who were rejected have filed lawsuits to be reinstated at the court, and there is also an appeal against the whole procedure of appointing its judges.
One of the newly-appointed anti-corruption judges, Inna Bilous, banned protesters from gathering near administrative buildings in Ternopil during the EuroMaidan Revolution from Dec. 10, 2013 through Jan. 7, 2014. She denied accusations of wrongdoing.
Lawyer Vitaly Tytych argued that Bilous’ ban on peaceful assemblies was arbitrary and violated European standards, as the ban was applied to an unlimited number of protesters and to an arbitrarily broad area. He added that the ban also violated the standards of the Organization for Security and Cooperation in Europe.
Another new anti-corruption judge is Valeria Chorna. Anti-corruption watchdogs wondered whether her elderly mother could afford buying an apartment with an estimated value of up to Hr 2 million ($110,000). Chorna argued that her mother could afford it, providing a document according to which the latter received $143,615 in wages in 2004 to 2014.
Volodymyr Voronko, a judge at the Commercial Court of Dnipropetrovsk Oblast, was also appointed to the anti-corruption court. He has upheld a Hr 11.3 million debt claim by Optimius, a firm with a negligible share capital and dubious reputation, against the customs agency. The CEO of Optimus is the founder of another firm that has been investigated in a fraud case.
Optimus has also supplied fuel to Trade Commodity, a company under investigation in a corruption case at the Defense Ministry. One of Trade Commodity’s investors is businessman Andriy Adamovsky, a former business partner of Oleksandr Hranovsky, an influential lawmaker with the Bloc of Petro Poroshenko faction.
Voronko argued that his ruling was lawful and did not involve any fraud.
The High Council of Justice delayed until March 28 a decision on appointing Serhiy Bodnar, who has no legal right to be a judge of the court because he had an agreement to represent the interests of President Petro Poroshenko’s Bloc in court in 2017, according to several lawyers. He denied the accusation.
The council also delayed until March 28 its decision on appointing lawyer Markiyan Halabala, who had been praised by civil society.
Manipulations
There are also accusations that the selection of anti-corruption judges has been rigged, which is denied by the High Qualification Commission.
The High Qualification Commission has been accused of manipulating the Nov. 12 legal knowledge tests for the High Anti-Corruption Court and the Supreme Court.
Some of the test questions had more than one correct answer, according to ex-Public Integrity Council member Vitaly Tytych, High Qualification Commission member Andriy Kozlov and Judge Mykhailo Slobodin. The commission had the opportunity to promote some candidates by telling them which answers were correct, according to Tytych, who participated in the competition for the Supreme Court but did not pass the tests.
The commission then refused to give him his test results, which he says proves they were falsified.
The practical exams for the anti-corruption court and Supreme Court also had more than one correct answer, which allowed the commission to manipulate the results, according to Tytych and Judge Roman Bregei.
