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The future of Ukraine’s judiciary system is being defined in two simultaneous proceedings. At the moment when the High Council of Justice was reviewing 120 candidates to the new Supreme Court, the Ukrainian parliament was holding votes on a massive package of amendments to the procedural codes.
The High Council of Justice on Sept. 29 appointed a total of 111 judges to the new Supreme Court. President Petro Poroshenko has a symbolic right to sign their credentials.
Ukraine’s long-stalled reform of its corrupt judiciary system is a brainchild of Poroshenko. He proclaimed that the rebooted Supreme Court would rest upon independence and impartiality.
“Poroshenko is the author of this reform and therefore bears full responsibility for it,” said Mykhailo Zhernakov, a member of the Public Integrity Council, a civil society watchdog that oversees judicial reform. “We see that his only goal is to retain control over the judiciary as much as he can.”
Civil watchdogs believe reform was designed in a way that left room for political manipulation. They see a great risk that old judges with dubious pasts who served former President Viktor Yanukovych may get into the new Supreme Court and continue serving political leaders.
Membership in the elite club of judges comes with status, power and immunity, including lifetime service and (legal or illegal) financial rewards. It’s no surprise that the old cohort of judges, who matured in Soviet times or under the kleptocratic rule of previous Ukrainian presidents, want to stay.
Nonetheless, the competition to the new Supreme Court allowed attorneys, legal scholars and junior judges to apply for the first time.
Lack of transparency
A major loophole was hidden in the unclear methodology used by the High Qualification Commission.
“The selection only appeared to be transparent. It was broadcast online,” Serhiy Verlanov, a Public Integrity Council member and partner at Sayenko Kharenko law firm. “The Public Integrity Council was present at almost any discussion. But the assessment itself and calculation of points was concealed.”
Verlanov believes that the High Qualification Commission should have awarded points to candidates immediately and given more value to professional assessments over psychological assessments as well as shortened the time frame for the interviews.
“Let’s hear all candidates and then vote for all of them at once’ isn’t an effective approach because it gives unfair advantage to the candidates at the end of the list,” he said. “They are likely to be remembered better by the members of the commission as well as simply know what to be prepared for by the time their turn comes.”
The High Qualification Commission initially refused to publish its recommendations on appointing 120 Supreme Court judges. The commission divulged them only recently but they contain no explanations on why candidates were nominated and why the Public Integrity Council’s vetoes of 30 of the candidates were overridden, Roman Kuybida, a member of the Public Integrity Council, told the Kyiv Post.
“These recommendations are empty and have no motives,” Kuybida said. “We still can’t understand why our conclusions have been rejected… And the recommendations are nearly identical.”
He said that “an honest competition is one that allows you to verify each stage, and it’s impossible to understand for what the scores were given and verify them.”
Serhiy Kozyakov, head of the High Qualification Commission, responded in an email to the Kyiv Post that “its decisions contain the necessary structure, meaning and motives.”
Kuybida and Roman Maselko, another member of the council, said that the High Qualification Commission had effectively ignored information provided by the Public Integrity Council.
There is no correlation between the Public Integrity Council’s assessments and the scores for integrity given by the High Qualification Commission, according to Kuybida.
Moreover, Public Integrity Council members said they had not been allowed to speak during High Council of Justice meetings.
Maselko and Kuybida also said that psychological tests used by the High Qualification Commission were apparently “loyalty tests,” favoring the least independent judges. “For a judge, it’s important to be disloyal,” Kuybida said. “They must be independent.”
Voicing another complaint, Roman Brehei, a judge and Supreme Court candidate, criticized the High Qualification Commission for allowing 299 candidates with insufficient scores to compete — a move that appears to promote judges favored by the authorities. Kozyakov argued that the law that Brehei used to justify his position was not applicable to the Supreme Court competition, which is regulated by another law.
Brehei has also accused the commission of violating the law by failing to set a minimum score for the latest stage of the competition — moral and psychological testing.
Conflict of interest
Meanwhile, the High Council of Justice has been criticized for dismissing 48 out of its members’ 52 recusals from voting for specific Supreme Court candidates due to a conflict of interest. This prompted accusations that the council was aiming to get the necessary 14 pro-government votes to appoint politically loyal candidates.
The High Council of Justice explained the rejection of recusals by saying that, according to the National Agency for Preventing Corruption, the fact of officials working together at one organization without having friendly relations does not constitute a conflict of interest.
Council members Alla Lesko and Alla Oliynyk have been exempted by the High Council of Justice from voting for any Supreme Court nominees because they took part in the competition as candidates.
However, the council rejected a request by Yaroslav Romanyuk, chairman of the Supreme Court and a member of the High Council of Justice, to recuse himself due to his participation in the competition.
The High Council of Justice said that Romanyuk had withdrawn from the competition and that is why had no personal interest in it.
Dubious candidates
According to the Public Integrity Council, at least 30 of the Supreme Court nominees have breached professional ethics and integrity, although Zhernakov does not rule out that there could be more. Some prohibited peaceful assembly; some lead a lifestyle inconsistent with their income; some lied on their declarations of assets. More serious wrongdoings include judges whose previous verdicts were qualified as politically motivated or arbitrary.
“The main question now is how many of those 30 will be blocked by the High Council of Justice,” he says. “This political leadership knows how to circumvent. They are not as brazen as Yanukovych who appointed obvious criminals to courts. They choose judges who are less known and less exposed but still dependent on political influence.”
Ultimately the High Council of Justice ignored the civic watchdog’s vetoes and appointed 25 of the candidates deemed corrupt or dishonest.
Procedural codes
And finally, one more big caveat is the vote in the Verkhovna Rada on 4,000 amendments to three procedural codes and a number of judiciary laws. The lawyers assume that the vote was deliberately postponed until the last minute. “The Presidential Administration created a situation the parliament has no choice but to pass the amendments, otherwise there will be no functioning Supreme Court,” said Andrii Khymchuk, a lawyer at the DeJuRe foundation.
Zhernakov said that this strategy has been used for any major legislation in Ukraine that needs to be passed.
“Postpone it for as long as possible to the point when it’s absolutely critical and then push the parliament to vote for it last minute,” he said. It’s impossible to go through so many amendments in such a short time, he said, creating opportunities to pass dubious changes too.
