The Kyiv District Administrative Court late on May 15 suspended Serhiy Kozyakov, chairman of the High Qualification Commission of Judges, and his deputy Stanyslav Shchotka from their positions at the High Qualification Commission of Judges.
The court established that the authority of Kozyakov and Shchotka had expired in 2018.
The ruling may have a major impact on the fate of judicial reform and dramatically redistribute power at the top of Ukraine’s judiciary system. It may be used to nullify all decisions made by the High Qualification Commission since fall of 2018, including the selection of Supreme Court and High Anti-Corruption Court judges, according to Halya Chyzhyk and Mykhailo Zhernakov, members of the Public Integrity Council, the judiciary’s civil society watchdog.
The court’s decision also comes amid a power struggle involving outgoing President Petro Poroshenko, who has clashed with the Kyiv Administrative District Court’s judges, and billionaire oligarch Ihor Kolomoisky, who received two favorable court rulings from the court in April.
Kolomoisky has been suspected of backing President-elect Volodymyr Zelenskiy, his business partner, but both of them deny being political allies.
Public Integrity Council members claim Kozyakov is loyal to Poroshenko’s administration and accuse him of promoting judicial candidates favored by the president. Kozyakov denies being subject to political influence, while Poroshenko denies influencing the judiciary.
Kozyakov was appointed by Justice Minister Pavlo Petrenko but he is a member of a judicial reform council set up by Poroshenko. Kozyakov also co-founded law firm Proksen, at which he used to work with Kostyantyn Krasovsky, currently head of the Presidential Administration’s legal department.
Expiration of powers
The lawsuit being considered by the Kyiv Administrative District Court was filed by Serhiy Ostapets, who was appointed as a member of the High Qualification Commission by State Judicial Administration Chief Zenovy Kholodnyuk on May 6. The court ordered the High Qualification Commission to include Ostapets as one of its members to replace Shchotka.
Kozyakov and Shchotka deny the court’s legal reasoning. They argue that they had been appointed for 6-year terms in 2014, and their powers are set to expire in 2020.
Their opponents say, however, that the authority of Kozyakov and Shchotka had expired last fall because the 2015 Law on ensuring the right to a fair trial cut the terms of commission members to four years.
The State Investigation Bureau’s spokeswoman Anzhelika Ivanova told the Kyiv Post that the bureau had opened a criminal case in April into alleged usurpation of power by High Qualification Commission members by unlawfully extending their authority. The High Qualification Commission denies the accusations of wrongdoing.
Other members
Meanwhile, Human Rights Ombudsman Lyudmila Denisova on April 4 appointed Mykola Syrosh to replace High Qualification Commission member Tetiana Veselska. Denisova believes that Veselska’s powers had expired last fall, while Veselska argues that her authority will expire in 2020.
The Kyiv Administrative District Court on April 15 rejected Veselska’s motion to suspend Syrosh’s authority, allowing Syrosh to join the High Qualification Commission.
The High Qualification Commission’s opponents also argue that the powers of commission members Anastasia Zaritska, Mykhailo Makarchuk, Mykola Mishin, Yuriy Titov and Valentyna Ustymenko expired on March 29.
The Koretsky Institute for State Administration and Law on April 25 published an expert assessment according to which their powers were no longer valid.
Conflict with Poroshenko
The Kyiv Administrative District Court’s ruling follows an apparent conflict between the court and the High Qualification Commission.
The High Qualification Commission said on May 10 that 34 judges of the Kyiv Administrative District Court had not showed up for qualification assessment at the commission, claiming that they were sick.
This in turn followed Poroshenko’s call on April 18 for speeding up the qualification assessment of the Kyiv Administrative Court judges who had canceled the nationalization of Kolomoisky’s PrivatBank on the same day. Poroshenko also asked the Prosecutor General’s Office and the Security Service of Ukraine to consider investigating the judges over a possibly unlawful ruling.
These judges filed a complaint on April 23, accusing Poroshenko of illegally interfering in their work and urging law enforcement agencies to investigate this.
In April the Kyiv District Administrative Court also ruled in favor of Triantal Investment Ltd, a firm co-owned by Kolomoisky, and annulled the conversion of the company’s assets by the National Bank of Ukraine.
Controversial past
Apart from the conflict with the Kyiv Administrative District Court, the High Qualification Commission has also been involved in other controversies.
The Public Integrity Council has lambasted the commission for appointing tainted judges and an arbitrary methodology that allowed the commission to appoint judges without explaining any reasons. The commission has denied the accusations of wrongdoing.
In October the Supreme Court partially confirmed the Public Integrity Council’s reasoning, cancelling the High Qualification Commission’s decision to fire a judge because it was arbitrary and contained no motives.
Judge Roman Bregei has initiated an administrative case against the High Qualification Commission’s selection of Supreme Court judges and a criminal case into alleged abuse of power by commission members. Bregei’s case is currently being considered by the European Court of Human Rights.
The other side in the conflict, the Kyiv Administrative District Court, is no less controversial.
The court has issued some highly questionable rulings – such as the suspension of Health Minister Ulana Suprun and the reinstatement of ex-State Fiscal Service Chief Roman Nasirov.
According to the Public Integrity Council, some of the judges of the Kyiv District Administrative Court do not meet integrity standards but the High Qualification Commission of Judges has failed to dismiss or punish them.
