One step away from the new High Qualification Commission of Judges: Will public expectations of the judicial reform be met?

by Halyna Chyzhyk, Kateryna Butko, Mykhailo Zhernakov, originally published by UP

On May 2, Tuesday, the High Council of Justice will start interviewing candidates for positions to the High Qualification Commission of Judges (hereinafter referred to as the HQCJ or the Commission). This body is responsible for evaluating judges and selecting new ones.  

For the first time in the history of the HQCJ, we have a real chance to fill it with truly worthy and honest professionals. The Commission’s reform is important both for ensuring justice in the country and for our European integration. After all, last June, the European Commission identified the renewal of the HQCJ as one of seven priority steps to open negotiations on the EU membership. 

The next composition of the Commission faces really serious challenge. They will have to fill more than 2,000 judicial vacancies and check integrity of the same number of judges. So, without any unnecessary pathos and exaggeration, the new composition of the HQCJ will determine the face of the country’s judicial system for the coming decades. 

Ukrainians, and most of all the judicial community itself, have been waiting for the appointment of the HQCJ members for more than three years. The previous composition of the body ignominiously ceased its work in November 2019. This happened on the initiative of President Volodymyr Zelenskyi, which was supported by the parliamentary majority. 

The reason for disbandment of the HQCJ was the inability of the body to solve personnel problems and systematic cover-up of dishonest officials in robes. It was not possible to form new composition of the body in 2020, primarily due to sabotage by then High Council of Justice (HCJ), and later the decision of the Constitutional Court. Finally, in 2021, after lengthy discussions in the Parliament and consultations with international partners and the Venice Commission, MPs passed laws that launched reforms of both the HQCJ and the HCJ. 

How candidates were selected

The selection of future HQCJ members was entrusted to newly created Competition Commission consisting of three Ukrainian judges and three foreign experts. Due to the full-scale russian invasion of Ukraine, the competition, which started in February last year, was put on hold, but members of the Competition Commission returned to work in summer. 

The war not only discourage interest in the competition, but it encouraged many lawyers to take part in it. A total of 302 candidates applied for 16 vacancies in the HQCJ, from which the Competition Commission finally selected 32 winners. Although the work of the Competition Commission was not flawless, and some decisions are not clear to the public, it coped with the task and selected candidates it considered the best.

It is worth noting that only 10 recommended by the Commission candidates are judges or retired judges. This immediately displeased the judicial community and, of course, the HCJ, in which judges make up the majority. Members of the HCJ were publicly outraged and privately threatened to block the resumption of the HQCJ’s work. But the fact is that the quality of judicial candidates was not sufficient, and the Competition Commission was unable to recommend those who did not meet requirements for the HQCJ member and public expectations. 

The only way to get impression of the candidates’ level of competence is to watch videos of interviews, which are available on the official YouTube channel of the Competition Commission. It was the lack of knowledge, suspicious wealth and trail of questionable decisions, but not intrigues of members of the Competition Commission, that prevented judges from being shortlisted. During interviews, most of judicial candidates denied problems within the judiciary and demonstrated that they did not understand what integrity and judicial ethics are and had no real idea of challenges that future HQCJ members would have to overcome. 

Unsuccessful start in the HCJ

The final decisions on appointment of the HQCJ members are to be made by the HCJ. The HCJ has to select 16 out of 32 winners of the competition and plans to do so based on results of interviews scheduled on May 2-12.

The final stage of the reform started badly with the decision to close interviews from journalists and public. The HCJ members voted not to broadcast interviews with candidates to the public. They motivated this decision by intention to ensure equality among candidates, saying that candidates who would be interviewed later would be able to better prepare for interviews. This explanation was surprising to say the least. Moreover, the Competition Commission interviewed twice as many candidates in full transparency and had no difficulty evaluating them, and no one has ever complained about violations of equality through online interviews in this or any other competition. 

However, the HCJ members still listened to the position of public and calls from international partners and eventually voted in favor of transparency of interviews. By doing so, they demonstrated their willingness to listen to civil society and uphold established standards. This is also an important prerequisite for ensuring trust in results of the entire competition and future composition of the HQCJ. 

Doubtful candidates on the list of winners 

However, among candidates recommended by the Competition Commission, there are still several who, in our opinion, cannot become members of the HQCJ, otherwise credibility of the body will be severely undermined. 

For instance, Yuriy Bodnaruk, who currently works as assistant judge at the High Anti-Corruption Court. In December 2020, he registered ownership of 78.8 sq.m. apartment in Odesa worth 1.17 million UAH. However, the official income declared by the candidate in previous years was not enough to purchase this apartment. During the interview, the candidate stated that he had paid the price of apartment in 2016 and had sufficient savings for this purpose. Unfortunately, these words turned out to be a lie, which is confirmed by Bodnaruk’s declaration in 2015. He listed 20,000 USD and 50,000 UAH in it, which was only half a million UAH at the time.

The candidate’s professional experience also raises questions. From 2008 to 2010, he held senior positions in Odesa-based S&S Legal Consulting LLC, which, according to official data, was located in … kebab shop! Once UP published investigation about the company’s founders, claiming that one was criminal and the other was connected with corruption in the State Inspectorate for Price Control under the Ministry of Economy. 

The question of origin of funds for the elite apartment in Kyiv was not discussed during the interview with candidate Lyudmyla Volkova. And for good reason. In 2019, she received loan in the amount of 2.7 million UAH from Svitlana Mukha to buy apartment with total area of 107.3 sq.m. in the residential complex Alter Ego in Kyiv. In the recommendation sent to the HCJ, the Competition Commission only stated that Volkova received loan from close friend. The amount of loan was considerable, but the source of Mukha’s funds remained unknown. In addition, during this time, the candidate signed the preliminary contract for construction of the house in Bilohorodka near Kyiv. It is unknown where Volkova got money for the construction.

It is ironic that Volkova is founder of the NGO Association for the Development of Judicial Self-Government of Ukraine, which opposed the involvement of foreign experts in the HCJ’s reform. However, this did not prevent the candidate from entering the competition, where she was evaluated by international experts. The important touch to the portrait of Lyudmyla Volkova is her past work as the judge, where she was famous for her decisions restricting peaceful assemblies in 2011-2012. 

But perhaps the most striking evidence of incompatibility of the high position of the HQCJ member is the candidate’s position on judicial independence, which has already been clearly expressed. In 2015-2018, Volkova was the member of the Council of Judges of Ukraine. As the member of the Council, she was part of working group that found no violations in actions of Volodymyr Babenko, the head of the Court of Appealin Cherkasy region, who systematically put pressure on Serhiy Bondarenko, judge of the same court. As the result, Babenko was not brought to justice for infringing on independence of the judge subordinate to him. The most interesting thing is that the HCJ itself has recently agreed to keep Babenko in custody in the criminal case of pressure on Bondarenko. We wonder if the HCJ will take this into account when assessing Volkova as the candidate.

Another questionable candidate is Konstantyn Krasovskyi. He is again happy owner of luxury housing. In 2017, he bought apartment located on Obolonska Naberezhna worth 2.45 million UAH, part of which, according to him, was donated by his mother-in-law. The candidate was not asked where she got money during the interview. It also seems very doubtful that during 8 months of 2021, the lawyer Krasovskyi earned only 60,000 UAH, or about 7,000 UAH per month, at the well-known LCF law firm. 

Konstantyn Krasovskyi is directly involved in the judicial reform, as he headed the relevant department in the Administration of Petro Poroshenko from 2014 to 2019. Unfortunately, that reform ended with appointment of questionable judges to the Supreme Court and failed qualification assessment. Krasovskyi can deny these mistakes, stating that they were the responsibility of then HQCJ and the HCJ. But mysterious disappearance of scandalous KDAC from the presidential decree on the liquidation of courts in 2017 is unlikely to work.

The HQCJ’s reputation will also be damaged by appointment of Dmytro Lukyanets, member of the governing body of the All-Ukrainian NGO Council of Representatives of Law Schools and Research Institutions, which was founded by Serhiy Kivalov and Andriy Portnov. According to media reports, Kivalov, as the head of the Council of Representatives of Higher Education and Research Institutions, directly managed to lead the congress of scholars that selected members of the judicial governance bodies, namely the High Council of Justice and the High Qualification Commission of Judges. Thanks to the decision of this congress, Portnov joined the HCJ along with Kivalov in 2009. 

These facts obviously call into question integrity of candidates, and we are convinced that the HCJ cannot ignore them. After all, the competition will be successful only if the HQCJ gets truly worthy candidates who do not have trail of doubtful wealth and connections. And there are enough such candidates in the list of 32. It is about reputation and credibility of the HQCJ as institution responsible for the judiciary of the whole country.

HQCJ as historical success or failure

The HCJ members have huge responsibility today. Because while the HQCJ members can be replaced in four years, the judges they select will receive lifetime mandate with serious guarantees against dismissal, which is 30 years. It is future composition of the HQCJ that will have to fill 2,000 judicial vacancies and assess the integrity of another 2,000 judges. And the HCJ members will share responsibility for results of their work with the HQCJ members.

Judges have long resisted the reform, driven by fear of losing control over the HQCJ. In minds of judges, the HQCJ, like the HCJ, is the body that should protect judges themselves first and foremost. But not so much from political influences as from anti-corruption agencies and society that seeks justice. 

The time has come for the renewed judicial system to begin to see the public and society as allies, not enemies. 

Moreover, we have neither time nor moral right to go around in circles again.

The list of candidates recommended by the Competition Commission includes many worthy ones who have demonstrated that they are able to work honestly and independently, including when evaluating judges and candidates for judicial positions.

Today, we as a country have chance to break the vicious circle of corruption and distrust. This chance is in hands of the HCJ members. We hope they will not waste it.

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