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Ukraine’s ongoing competition for the High Anti-Corruption Court is another litmus test of whether the nation is capable of reforming its corrupt judiciary.
But the High Qualification Commission of Judges looks set to repeat the manipulations and violations it committed during last year’s competition for the Supreme Court, again creating a politically dependent court, according to members of the Public Integrity Council, the judiciary’s civil society watchdog. They argue that this would bury Ukraine’s chances to introduce the rule of law for many years to come.
The commission has denied rigging the competition.
However, the Kyiv Post has found extensive new evidence of possible violations and manipulations during last year’s Supreme Court competition, which could be repeated during the ongoing selection of the anti-corruption court, as the High Qualification Commission is using the same assessment methodology.
One of the main issues is that it is unclear how most of the assessment points were assigned to candidates. No explicit reasons were given for assigning specific scores, prompting accusations that the procedure was subjective and arbitrary.
To explain away a major part of the scores, the High Qualification Commission has said they were awarded according to the results of psychological tests.
Yet the tests only aggravate the controversy around the Supreme Court competition: First, it’s not clear if they were taken into account at all. Second, the validity of the tests has been questioned, as they targeted corporate loyalty and high discipline, which would reward politically dependent candidates and penalize independent-minded ones, according to the Public Integrity Council.
“The commission did not assign a separate score for the psychological tests, which means that it awarded most of the 1,000 points arbitrarily, and the psychological tests were a waste of time that didn’t affect anything,” Vitaly Tytych, the coordinator of the Public Integrity Council, told the Kyiv Post.
The tests were financed by the European Union’s Pravo-Justice project, headed by Lithuanian legal expert Dovydas Vitkauskas, raising questions over European officials’ responsibility for the results. Vitkauskas argued that the psychological tests were valid.
“The psychological tests for the Supreme Court selection last year were developed after a careful tailor-made process fit for the Ukrainian judicial context,” he told the Kyiv Post. “Both the validity and reliability of the tests was checked by professionals of (psychometrics firm) OS Ukraine.”
The same psychological tests are expected to be used during the competition for the anti-corruption court, which began on Aug. 2.
As of now, 342 candidates have applied for 39 jobs at the court. Of these, 45 percent are judges, 34 percent are lawyers, 14 percent are legal scholars, and 7 percent have a mixed background.
During the next stage, the High Qualification Commission will decide on accepting or rejecting the applications. Under the law, the court is scheduled to be set up by June 2019.
Selivanov case
A landmark case that puts the ongoing competition in doubt is that of Maksym Selivanov, a lawyer at Kharkiv-based Arbitis law firm. He doesn’t understand why he was eliminated from the competition for the Supreme Court’s commercial chamber last year.
Neither the Public Integrity Council, the judiciary’s civil society watchdog, nor any law enforcement agencies have any negative information about Selivanov, who specializes in intellectual property rights and has 20 years of experience working as a lawyer.
“The commission used its discretion in a biased way to promote certain people and thus distorted the results of the competition,” Selivanov said in his blog in 2017.
While Selivanov boasted a clean record, 30 candidates who were deemed to have violated judicial ethics and the law won places on the new Supreme Court. They were vetoed by the Public Integrity Council, but the High Qualification Commission overrode the vetoes.
For unclear reasons, some Supreme Court candidates shot from low positions to the very top of the ranking after undergoing legal knowledge and practical tests, while others plummeted.
In the competition for places on the Supreme Court’s commercial chamber, Vitaly Urkevych jumped from the 18th place after the knowledge tests to first in the final ranking, while Grigory Machulsky skyrocketed from 51st place to 11th place, and Mykola Moroz fell from the 33rd place to 14th place.
Selivanov, who got 150 points after legal knowledge and practical tests and 621 points out of 1,000 in total, compared himself to Yegor Krasnov, who got 132 points after legal knowledge and practical tests and 744 in total.
Selivanov fell from 46th place after the knowledge tests to 58th place in the final ranking, while Krasnov jumped from the last (71st ) place to 26th.
The Kharkiv lawyer said he could not understand why Krasnov got so many more points, despite the fact that Selivanov had performed better in the knowledge tests, had experience in commercial law (unlike Krasnov) and was equal to Krasnov in other respects.
Mysterious scores
Out of 1,000 points, up to 210 were assigned for legal knowledge and practical tests, and up to 790 were assigned on the basis of psychological tests, interviews with candidates, and on assessments of their career profiles. The High Qualification Commission’s decisions published on its site do not explain exactly how it assigned up to 790 points out of a total of 1,000 in each individual case.
Oleg Burlachuk and Anastasia Dyomina, executives of Giunti Psychometrics (also known as OS Ukraine), told the Kyiv Post that, out of the 790 points, up to 400 points were supposed to be assigned on the basis of psychological tests conducted by the company.
As a result, the psychologists’ opinions would be given more weight than facts – such as legal knowledge and violations of the law and judicial ethics, Tytych from the Public Integrity Council said.
Selivanov dropped out despite getting good knowledge scores and having no record of violations, while at least 30 candidates became Supreme Court judges despite having violated the law and professional ethics principles, he said.
Another problem is that the High Qualification Commission has refused to say exactly how the psychological tests affected the overall result. The commission has told the Kyiv Post that there was no separate score for psychological tests, which implies that the commission could have ignored the test results altogether.
The High Qualification Commission has also refused to publish even short summaries of the results of candidates’ psychological tests, saying that they constitute private personal data – a claim disputed by some lawyers. This makes the verification of whether the scores were assigned fairly and objectively impossible.
Moreover, both the High Qualification Commission and Giunti Psychometrics said the company had no control over the process of assigning scores.
The test results were sent by regular e-mail without any electronic signatures or security mechanisms, Dyomina and Burlachuk from Giunti Psychometrics told the Kyiv Post. Tytych said the High Qualification Commission could have falsified the test results due to a lack of security tools, although the commission denies this.
The results of the psychological tests of Maksym Selivanov, a lawyer who ran for a Supreme Court job in 2017.
Corporate loyalty
One of the reasons why the psychological tests are controversial is that they were standard corporate tests, not tests used specifically for judges. They did not measure characteristics that are crucial for judges (such as judicial independence) and instead targeted opposite features – corporate loyalty and high discipline in what critics see as an effort to promote political loyalists.
The tests were adapted for Ukrainian citizens, but were not adapted specifically for judges, Giunti Psychometrics confirmed to the Kyiv Post.
Standard corporate tests should not have been used for judges, and tests for judges have to be different from those for Metro Cash & Carry or Auchan employees, legal testing expert Serhiy Mudruk told the Kyiv Post.
“All tests must be validated,” Mudruk said. “To create a profile for psychological tests of judges, we must show why specific abilities, skills and knowledge are tested.”
Giunti Psychometrics used OS Bulgaria’s HCS Integrity Check, which reads “loyalty check” in Bulgarian, according to the website of OS Bulgaria, an affiliate of Giunti Psychometrics. The test is used for companies “with a clear management hierarchy,” according to Giunti Psychometrics.
Giunti Psychometrics argued that “loyalty” means “working motivation” and implies loyalty to a company rather than to managers.
However, one of the parameters of the test is “propensity to conflicts with authorities.”
“’Propensity to conflicts with authorities’ (is a test that) enables the examination of the subject’s propensity for explicit or implicit conflicts with management,” according to Giunti Psychometrics. “Subjects with low results manifest themselves as disobedient, freedom-loving, often having their own opinion on things, and reluctant to make concessions or compromises.”
The results of Selivanov’s tests obtained by the Kyiv Post show that his corporate loyalty is medium, and his discipline is low.
“The candidate is a private entrepreneur and has no immediate superiors, and that’s why sometimes he doesn’t comply with strict discipline in work, which explains low discipline indicators and possible propensity to counter-productive actions,” according to the test results, which were shown by Selivanov to the Kyiv Post.
Discipline features in three sections (individual competence, social competence and professional ethics) and contributes more to the overall results than other indicators.
“I’m not sure very high discipline is a good thing (in a judge),” Andriy Kozlov, a member of the High Qualification Commission, told the Kyiv Post. “I have medium discipline myself. (Most of the candidates) show high discipline and low ability to stand their ground. This is a systematic mindset problem. It’s a disaster. It’s probably a consequence of the totalitarian pattern of the past.”
Selivanov’s honesty was assessed as medium, while his propensity for abuses and his level of counterproductive behavior are high, according to the test results.
Selivanov told the Kyiv Post he had been insulted by the questions asked during psychological tests, arguing that they were petty and nonsensical.
“One of the questions was: if you’re a cashier, and your colleague took Hr 300 but put it back, what would you do?” he said. “(The psychologist who conducted the interview) had no practical experience and no understanding of who she was speaking to.”
According to the test results, Selivanov has a “very high cognitive level,” “a high level of verbal intelligence”, a clear value system” and “good leadership skills.”
Psychograph
Before the competition for the Supreme Court, efforts had been made to adapt the psychological tests to judges, but key aspects of this adaptation – a psychograph – were not used during the competition.
The creation of the psychograph – or a psychological profile of an ideal judge – was funded by the U.S. Agency for International Development and prepared by Ivan Danylyuk and Inna Kozytska from the Kyiv National University in 2016.
The USAID-sponsored psychograph names the ability to dispense justice objectively and fairly, low suggestibility and resilience to pressure as major characteristics of a judge.
“Low suggestibility is a characteristic that guarantees a judge’s objectivity and independence in decision making,” according to the psychograph. “This characteristic expresses itself in a person’s ability not to succumb to external influence… It’s important for a judge to express a principled position, independence and autonomy in the assessment of the results of investigations.”
The psychograph also says that “resilience is when a judge can resist pressure even when he realizes that he may face penalties or that someone may hurt him or his family.”
However, none of the characteristics linked to judicial independence and objectivity were used by Giunti Psychometrics during their psychological tests, according to Selivanov’s test results and a generic sample of tests obtained by the Kyiv Post. Burlachuk and Dyomina claimed, however, the company had “partially” used the psychograph.
USAID declined to comment on whether Giunti Pshychometrics officially had a right to use the psychograph. USAID also said that the psychograph was not yet finished.
Kozlov from the High Qualification Commission admitted problems with the commission’s use of psychographs, saying that a psychograph shows “features of the character that we’d like to see in a future judge, but nobody (in the commission) cares if they are not complied with.”
Kozytska, one of the creators of the psychograph, told the Kyiv Post that it did not include loyalty in the strict sense of the word.
Meanwhile, frustrated with his test results, Selivanov argued in 2017 that High Qualification Commission “has managed to destroy the trust of those participants of the competition who believed in judicial reform.”
