Ukrainian President Petro Poroshenko advertised the rebooting of the Supreme Court as a key part of judicial reform, intended to show the commitment of the ruling elite to meet public demands to purify the judiciary and establish fair justice in Ukraine.
But it’s not turning out that way.
Since November, the High Qualification Commission of Judges has been holding a competition to find 120 new judges by April. But the competition is being done in a way that undermines hope for restoration of public trust.
Supreme Court’s importance
The Supreme Court is the highest authority in the judicial system, with powers to overrule any lower court decision. The Supreme Court will also have appellate powers over the High Anti-Corruption Court, so imprisonment of corrupt top officials and recovery of assets they embezzled will also depend on the Supreme Court.
The newly reconstituted Supreme Court will start functioning after at least 65 judges are appointed in the competition, which is now run by the High Qualification Commission of Judges.
This is another problem with the process.
Old judges picking new ones
The High Qualification Commission of Judges has the authority to select judges for first appointment and to hold periodic assessment of judges.
A majority of judges are part of the body. This requirement was adopted according to the standards of the Council of Europe, which advises for judges to be selected by their peers.
However, for a corrupt country like Ukraine that never enjoyed an independent judiciary, this approach means that new judges are to be selected by judges appointed in the times of ex-President Viktor Yanykovych, ousted by the EuroMaidan Revolution on Feb. 22, 2014. These judges are used to carrying out political requests rather than delivering justice.
The commission was rebooted after the EuroMaidan Revolution, but it still consists of representatives of the discredited old judicial system that enjoys the trust of only 1 percent of the population.
Moreover, the commission has already discredited itself.
In 2015, the commission evaluated judges with the aim of removing corrupt or badly qualified ones. However, the commission kept 80 percent of judges in their position – even though the National Anti-Corruption Bureau of Ukraine provided facts of fraud in asset declarations and signs of illicit enrichment.
In 2016, after the constitutional amendments and new law on judicial system were adopted in the parliament, the commission hired two more members and was given powers to establish transparent criteria to select the new Supreme Court.
The competition assessed professional skills and interviewed candidates to assess ethical qualities and integrity. Now the commission is finishing this stage of professional evaluation. While the most important part of the selection process is still ahead, the commission’s approach is worrying.
Choosing best from worst
At the outset, judicial reform emphasized bringing “fresh blood” into the system, since sitting judges have been largely discredited.
The reform allowed for lawyers without a judicial background to seek appointment as a Supreme Court judge, promoted as key step to combating “clientelism” in the judicial system.
At the initial stage of the competition, the commission managed to disqualify 45 percent of candidates who did not have previous judicial experience (by comparison, only 7 percent of judges were disqualified).
As of now, only less than 25 percent of candidates in contention for the Supreme Court are outsiders to the old corrupt judicial system.
While there are few representatives of the “new blood,” all of the “old blood” seem to be aiming to become Supreme Court judges.
The open profile of every other Supreme Court candidate with judicial experience includes several real estate holdings, elite cars that cannot be justified by judicial salaries,renumeration, a spouse with Hr 1 million worth of businesses, prosecutors, police officers or solicitors as close relatives and a bunch of questionable judicial rulings in their backgrounds.
In a situation with 3.5 questionable applicants for each seat, the commission must ensure the highest possible level of transparency.
Not the public’s business?
Instead, the commission is attempting to hide from the public the full dossiers of the candidates for the Supreme Court.
Although the law on the judiciary requires the full dossier to be made public on the commission’s website, these documents have not been published online, with only two weeks to go before the final interviews with the candidates.
Moreover, journalists and watchdog nongovernmental organziatiosn have been officially denied access to the full dossiers. It is obvious that the commission is more occupied with how to justify dossiers not being published than how to implement the law and to publish them.
Without disclosure of the dossiers, the public has no chance to see previous non-electronic asset declarations of judicial candidates, results of their previous judicial examinations, aggregated information on their previous decisions (including number of decisions cancelled or overrulled by higher courts), complaints filed against the judge, etcetera.
This information, not fully accessible from any other open sources, is essential for evaluation of the qualifications and integrity of a candidate. Open access to profiles can justify or, to the contrary, cast a shadow over the final decision of the commission.
Open access to profiles is also crucial for the only element of public participation in the selection of judges.
The Public Integrity Council, the advisory body established under the commission as part of judicial reform, can reject a candidate, who will be disqualified unless 11 of 16 members of the commission vote in support of the candidate.
The Public Integrity Council, however, must file their objections at least 15 days before interviews with the candidates start.
Yet, less than three weeks before the interviews, the Public Integrity Council has still not be given access to the full dossiers of the candidates. Moreover, some members of the commission go so far as to claim that the Public Integrity Council must assess candidates by information from open sources, not from information acquired by the state.
Opportunities for manipulation
The commission also preserved other opportunities to manipulate the competition.
Firstly, the commission intends to define the minimal passing rate for the candidate only after all stages of the competition are finished. It’s not hard to see how this can be arbitarily and selectively applied to benefit specific candidates. Pass rate for judicial examination was also defined by the Commission after the testing, which resulted in lower pass rate specifically for the criminal court with the Supreme Court (examination pass rate was 54 for the criminal court and 60 – for all other courts ).
Secondly, the criteria for assessment of candidates does not guarantee transparency or impartiality. Judicial exames provide objective results. But assessments of integrity and ethics are subjective — and those parts count for 700 out of a possible 1,000 points. Also, members of the commission do not bear individual responsibility for their ratings since there is no requirement to disclose their assessments.
Thirdly, the commission does not yet guarantee online streaming of interviews with the candidates and an opportunity for the Public Integrity Council to ask questions during interviews. This leaves the public without an opportunity to oversee how reasonably 700 out of 1,000 points for the overall assessment are allocated.
Finally, the commission will need to decide on the candidates vetoed by the Public Integrity Council, but there is no requirement for the voting to be open. Should the voting be kept secret, members of the commission will hide behind collective decision and will have more space to neglect the decision of the Public Integrity Council.
Just a few days ago, the head of the High Qualification Commission of Judges, Sergey Koziakov, publicly promised to resolve the threats to the transparent selection of new Supreme Court judges and judicial reform in general.
Should these risks not be resolved immediately, the civil society will consider that the Commission intends to drag in notorious candidates to the “new” Supreme Court behind the eyes of the public.
Op-ed by Anastasia Krasnosilska, program director for the Anti-Corruption Action Center for KyivPost3