by Halyna Chyzhyk, Mykhaylo Zhernakov, Kateryna Butko, originally published by UP
On January 11-12, the Сongress of judges took place in Kyiv. It selected 8 new members for the High Council of Justice. The worst-case scenario, in which the selection of members of the HCJ would have failed and which we’ve written about in December, did not happen: judges managed to fill all their vacant positions and unblocked work of the body.
The High Council of Justice, the key judicial body, has not been functioning since the beginning of full-scale Russian invasion, as most of its members voluntarily resigned, unwilling to be examined as part of the judicial reform launched in late 2021. Thus, the cleansing of body was even faster and more efficient than originally planned.
Today, the HCJ has 15 members out of 21. Four more new members will be appointed in spring according to the quota of the Congress of Prosecutors, law schools, and the President. However, the judicial majority in the HCJ has already been formed, so this allows us to assess interim results of the reform and to document expectations of society from the work of renewed composition of the High Council of Justice.
The old new HCJ
In 2022, the composition of the HCJ was renewed by 80%. Except the head of the Supreme Court Vsevolod Knyazev, who is ex officio member of the body, only three members were selected/appointed before the judicial reform.
We saw the similar restart immediately after the Revolution of Dignity. Unfortunately, at that time they limited themselves to changing names and demonstrative renaming of the High Council of Judiciary to the High Council of Justice, as if that were enough to stop politically dependent body from acting according to instructions and covering up unworthy judges.
The reform, which started in 2021, focused on the selection of independent and honest professionals for the HCJ. Has this been achieved?
This time, the Ethics Council, the independent body consisting of three Ukrainian judges and three international experts, played the key role in selection of future members of the HCJ.
Interviews with candidates were perhaps the most important stage of the selection process. Unfortunately, with the beginning of war, the Ethics Council decided to stop broadcasting interviews, depriving the public and journalists of the only opportunity to follow the process. Therefore, we do not know whether doubts about the integrity of individual candidates were raised there, nor whether candidates refuted them. We also see no justification in decisions of the Ethics Council on recommended candidates, so we do not understand what considerations guided its members.
For the first time in the history of all previous selections, most of questionable candidates did not reach the final stage. They were either not recommended by the Ethics Council or they withdrew themselves fearing the negative decision. This would not have been possible without participation of international experts in the process and their decisive vote.
At the same time, the decision of the Ethics Council regarding whistleblower judge Larysa Holnyk, who was recognized as “dishonest,” came as unpleasant surprise. This decision showed that the main advantage of involved international experts, namely their non-involvement in local context, turned out to be their main disadvantage.
In 2015, the judge Holnyk not only refused to make the decision in favor of Poltava Mayor Oleksandr Mamay for the bribe, but also filed the complaint about the crime, documented it, achieved the prison sentence for the intermediary. And she is still fighting for Mamay’s punishment.
After that she became the object of harassment and persecution by head of the court Strukov and the judicial system for years. In 2017, the judge Holnyk was physically attacked. She did not give up, but continued to fight. She publicly exposed shameful phenomena in the judicial system and fought for whistleblower rights and the judicial reform.
At the same time, this is perhaps the first time the reform has given independent experts from outside the system the real chance.
However, it is still too early to make final conclusions about whether the High Council of Justice has been renewed. Future decisions of the body will show this. After all, Ukraine is conducting the reform precisely to change their practice, not their faces.
We, Automaшdan, DEJURE Foundation and Anti-Corruption Action Center, have defined the following key criteria for assessing the success of the reform:
- appointment of members of the HQCJ;
- cooperation with the public;
- decision on judges of KDAC and position on judges of Maidan;
- openness and transparency of work and decision-making;
- standardization of disciplinary practice.
1. Agents of change in the High Qualification Commission of Judges
Probably the most important decision of the new HCJ is the appointment of a new composition of the High Qualification Commission of Judges. The latter has to select 2.500-3.000 new judges to fill positions that are already vacant or will become vacant in near future.
It depends on who will be in the HQCJ whether the judicial system will change forever or, on the contrary, be mothballed for decades.
The competition is ongoing now. And the Competition Commission will propose 32 candidates for 16 vacant positions to the HCJ, or less if there are not worthy enough candidates.
The HCJ should propose clear and transparent criteria for the selection of members of the HQCJ and appoint the best ones whose integrity is beyond doubt and who are agents of change.
If the selection process is non-transparent and unclear to the public, and if 32 finalists are mostly supporters of the status quo, it will be the powerful signal that the HCJ is satisfied with current state of affairs in the judicial system and is not going to change anything.
2. Tell me who your friend is and I will tell you who you are
Previous composition of the HCJ labeled the public, which fights against corruption in the judiciary and protects independent judges, as enemies, and simply ignored the Public Council of Integrity.
This is understandable: the body that unanimously votes against even temporary suspension of KDAC judges for the duration of investigation regarding Vovk’s tape-recordings, turns the blind eye to obvious violations by judges, or persecutes whistleblower judges, could not do otherwise.
If new composition of the HCJ has different goals, this policy should also change.
It is obvious that non-governmental organizations, journalists and other concerned citizens are not enemies of the judiciary. Moreover, it is they who work to ensure that judges are as independent, capable and able to resist illegal influences as possible. For any state institution that pursues the same goals, the public is the natural ally.
Therefore, the new HCJ should be as open as possible both to cooperation with representatives of civil society and to constructive criticism from them, which helps the new body to become better.
3. KDAC judges and other villains are litmus test for new HCJ
The scandalous Kyiv District Administrative Court was liquidated last December. However, Vovk, Ablov, Sanin, Pohribnichenko, Kachur and other judges still remain in the system, continue to receive their salaries and cherish the hope of returning to power.
It is up to the new HCJ to put end to their inglorious career.
We should recall that covering up of KDAC judges was one of main reasons for the restart of the HCJ. In the past, the body failed to even suspend judges from work while the criminal case was being investigated, and consideration of disciplinary complaints against judges were delayed in every possible way in order to avoid serious sanctions.
Therefore, the HCJ should demonstrate its principled approach and be one of the first to consider the issue regarding KDAC judges.
All facts of unworthy behavior of judges recorded on the NABU’s tape-recordings should be assessed by members of the HCJ regardless of result of the criminal proceeding, so that the judicial community understands that such behavior is unacceptable and will be unconditionally punished in future.
We are sure that judges will try to avoid punishment by stating that deadline for bringing them to justice has passed. However, the law states that deadline is suspended from the moment the complaint is filed to the HCJ, regardless of whether it had the right to consider it. Therefore, deadlines have not expired and the HCJ has the opportunity to properly assess actions of Vovk and company.
The case of the judge of the Supreme Court Olha Stupak will also be the test for new HCJ. She became the judge of the Supreme Court through outright lies about sources of her purchase of luxury BMW X5 and 380 sq. m. house near Kyiv, which her mother-in-law allegedly had bought.
Despite these facts, the HQCJ and the HCJ recommended Stupak to the Supreme Court at first, and after her appointment the HCJ continued to cover the judge in disciplinary proceedings.
Calling the lie the lie and punishing the judge is the questionof honor for new HCJ and its head Hryhoriy Usyk, who has worked with Stupak in the same court during recent years.
It is also important to hear the HCJ’s position regarding Maidan judges.
On the eve of the ninth anniversary of the Maydan shootings, we still have nothing to say to families of fallen heroes who are waiting for justice. Judges who banned peaceful assemblies, punished Automaidan activists for trips to Mezhyhirya, and imprisoned protesters were granted indulgence by previous HCJ.
Test regarding values of the new composition will be their position regarding the role of judges in attempts to suppress protests and persecute activists. And absence of position is also the position.
Finally, the HCJ should start fighting against judicial schemes, such as covering up for drunk drivers, manipulating automatic distribution of cases, rewriting decisions by correcting typos, usurping positions of court heads, etc.
4. Openness is real, not declarative
The trust in the High Council of Justice and its decisions will largely depend on how openly and transparently the body operates. In the past, the HCJ used to broadcast all its meetings online, but closed them in 2019.
Concealment of individual voting results was the common practice. With outbreak of the war, situation became even worse, as the HCJ closed access to all its acts, even those that were publicly available until February 24.
We do not understand how closing access to decisions of the HCJ helps to fight the enemy, but we are well aware that it is very convenient to hide poor-quality and unmotivated decisions under the guise of national security. It is just as convenient to hide behind collective irresponsibility by concealing voting results for each decision.
The slightest hint of non-transparency will bury any trust to new HCJ and its decisions, even if they are legal and fair.
Therefore, we expect that the HCJ will ensure real, not declarative openness in its work, which will be manifested in restoring access to all decisions and acts of the body, ensuring openness and broadcasting of all meetings, and holding open votes with publication of individual results.
5. New quality of disciplinary proceedings
Consideration of disciplinary complaints and bringing judges to justice is perhaps the most important and time-consuming task of the HCJ. Today, this function is not fulfilled: the reform envisages creation of independent service of disciplinary inspectors in the apparatus of the HCJ, who will take over some of work at the first stages of consideration of disciplinary complaints.
New inspectors should be selected through the competition. Until such competitions are held, the HCJ cannot consider any disciplinary cases at all.
It is very important that honest and independent professionals are selected as disciplinary inspectors.
The competition, for which the HCJ is responsible, should be transparent, and involvement of the Public Council of Integrity in selection and evaluation of candidates will help to ensure confidence in results.
The HCJ should also prioritize the consideration of disciplinary complaints and make it impossible to manipulate the order of priority, and create the system that allows tracking stages of complaints from their receipt to the final decision, following the example of court cases.
Another important task that faces new HCJ is to systematize and unify disciplinary practice, which will ensure consistency, clarity and predictability of decisions in disciplinary cases.
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Of course, other indicators are also important for assessing the HCJ: attitude towards judicial reforms, level of digitalization, implementation of anti-corruption program, improvement of existing procedures, and many others.
The public will be able to observe all of this in real time and decide whether the reform has yielded real success or remained on paper.
This will directly influence decisions regarding further reforms. If renewed HCJ copes with challenges it faces, there will be the number of important but smaller things to be done, and transformation of the judicial system could be considered complete.
If the work of renewed composition does not bring the desired result, other even more decisive measures will have to be taken to build fair court in Ukraine.
There is no other way: independent and fair courts are absolute necessity both for building the capable state and for our accession to the EU, which is the absolute priority of people of Ukraine and its political leadership.