The final battle for the HCJ: judicial mafia wants to stop judicial reform

by Halyna Chyzhyk, Mykhaylo Zhernakov, Kateryna Butko for UP

In September, the SBU made public wiretap recordings of telephone conversations of one Kyiv judge. He was sad due to the fact that Ukrainian army expelled occupiers from Kyiv region. He called occupied territories of the south as russia and spoke disparagingly about Ukrainian defenders. It was the judge of the Northern Economic Court of Appeal Volodymyr Kuksov. He was announced suspicion of justifying russian aggression against Ukraine and inciting collaborative activities.

Today, the investigators are reasonably afraid that Kuksov may flee the country, but they cannot take him into custody because it requires the decision of the High Council of Justice. However, this body has not been in power for almost a year.

Back in March, the Verkhovna Rada urgently voted on the law which transferred part of tasks of the HCJ to the head of the Supreme Court. But the most important functions of the body, namely appointment, transfer, punishment, suspension and dismissal of judges cannot be delegated to the head of the Supreme Court or anyone else without changes to the Constitution. We also cannot change the Constitution during the war, so we have no alternative to resume the work of the High Council of Justice.

In this text we would like to tell why the HCJ is not working, who is sabotaging the process, what are possible scenarios and when to expect the resumption of work of the key body responsible for the judicial system of the country during the war.

Cleaning of the HCJ: what is the progress during the year

One year ago, the judicial reform was launched in Ukraine. It was designed, in particular, to clean and update the High Council of Justice as the main body that resolves issue of judicial careers. For this purpose the special body was created, namely the Ethics Council, which involved independent international experts and gave them the decisive vote in decision-making.

The reform gave first results before it had even started. Most of then members of the HCJ voluntarily gave up their positions because they were afraid of examinations of their property status and uncomfortable questions about their activities.

They announced their dismissal on February 22. Although not all of them resigned. Namely: together with the head of the Supreme Court, who was ex officio member of the High Council of Justice, five members remained in the body. This was not enough for full-fledged work of the High Council of Justice, because according to the Constitution, the High Council of Justice is functional with appointment of at least 15 members.

At the same time, interviews with candidates for the HCJ began. The first interviews took place on February 21 and 23. They were broadcast online, and everyone, who wanted, had the opportunity to watch the process. Next interviews were scheduled for February 24, but russian missiles flew at Kyiv and other Ukrainian cities before the sunrise. The competition was temporarily suspended.

The Ethics Council resumed its work only at the end of April. It started with four current members of the HCJ (Vsevolod Knyazev was not supposed to pass such examination). Based on results of examination, the Ethics Council recommended dismissal of Viktor Hryshchuk.

Hryschuk got into the HCJ based on the quota of the Congress of Law Universities in April 2019. He “failed” due to contacts with the head of Kyiv District Administrative Court Pavlo Vovk. During the interview with members of the Ethics Council, Hryschuk confirmed that he had phone conversations with Vovk, during which he had discussed consideration of the lawsuit by KDAC which appealed his appointment to the HCJ. According to the NABU, which released tape recordings of these conversations, Vovk also tried to get his protégé to the HCJ with the help of Hryschuk.

Victor Hryshchuk’s mandate ended in August. At the same time, in August, the HCJ gained three new members. The Congress of Law Universities selected Dmytro Lukyanov, scientist from Kharkiv Law Academy, and the Verkhovna Rada selected lawyer and public activist Roman Maselko and Lukyanov’s colleague, scientist and lawyer Mykola Moroz.

The selection of Roman Maselko to the High Council of Justice was another intermediate victory that proved success of the judicial reform. After 2014, Maselko became famous thanks to his tireless work to bring to justice judges who had persecuted participants of the Revolution of Dignity. During four years he worked as part of the Public Integrity Council, independent body formed by non-governmental organizations that examined integrity of judges and candidates for judicial positions.

Actually, the judicial reform was necessary in order for such honest and independent specialists as Roman to become members of the HCJ. However, it is too early to talk about success of the entire reform, because decision in the High Council of Justice is made by the majority of votes, so selection of one or more independent experts does not mean change of the system yet.

So, today there are seven members in the HCJ. Eight more must be appointed to restore the body’s full-fledged work. The Congress of Judges has the same number of vacant positions today. The Ethics Council recently just finished selecting candidates for the judicial quota and recommended as many as 16 candidates, exactly twice as many as there are vacant positions. The Congress of Judges can choose eight out of 16 and appoint them to the High Council of Justice, giving the judicial system the breath of fresh air by the end of this year. However, the judicial mafia is going to implement a different scenario.

Expected sabotage by the judicial mafia

The character and face of future HCJ will be determined by 8 members to be selected by the Congress of Judges. Today, there are three basic scenarios according to which events could develop.

1.       The Congress of Judges is held in December or January, at which 8 new members of the HCJ are selected, the body immediately resumes work.

This is the most desirable scenario for Ukrainian society and authorities, but the least desirable for judges themselves. The resumption of work of the HCJ for judges means the return of control and possibility of their punishment for violations, suspension from work or even dismissal. Many judges are not ready to give up freedom, or rather impunity, which they have been enjoying for the past year. 

2.       The Congress of Judges does not take place at all

Such scenario, like previous one, is highly unlikely, because even though judges are in no hurry to launch the HCJ, they also do not want to be accused of sabotaging the reform and working with collaborators. Moreover, open opposition of judges can give a free hand to the President in matters of new legislative initiatives aimed at limiting judicial governance and role of congresses of judges. It is unlikely that international partners will come to defense of judges in conditions where the latter are openly sabotaging implementation of the reform of the HCJ, which is one of conditions for Ukraine’s candidacy for membership in the EU.  

3.       The Congress of Judges selects 2-3 members of the HCJ and announces new competition

Under such a scenario, the HCJ will remain non-functional, but it will be difficult to accuse judges of sabotage. Apparently, they will do what was required of them, but we can’t force them to vote “for” eight candidates. The new competition will also be another chance to bring “dark horses” to the HCJ.

Thus, the judicial mafia makes a bet on implementation of such scenario. According to our information, its envoys are currently tour around the country, instructing delegates to the Congress. We even know the names they are campaigning to vote for.

Candidates to Vovks taste

The judge of the Supreme Court Serhiy Burlakov somehow got the green light from the Ethics Council. Kharkiv lawyer Burlakov became the judge of the Supreme Court in 2019. In Kharkiv he was closely connected with the family of pro-russian businessman Oleksandr Feldman, who was member of the faction of the 9th convocation of the Parliament of the already banned party Opposition Platform For Life. Both Burlakov and his relatives visited the russian federation after annexation of Crimea and russia’s occupation of part of Ukrainian territories. Traditionally, we also found inconsistencies in the judge’s property declarations.

Burlakov works as the judge of the Cassation Civil Court, which is invariably headed by Borys Gulko. According to our information, Gulko and the group of judges he represents make a bet on Burlakov. Considering the fact that it is about courts of general jurisdiction, which are the most numerous and will have the largest representation at the congress, Burlakov’s position as member of the HCJ is guaranteed.

Another judge of the Supreme Court (but of the Administrative Court of Cassation) who received recommendation is Andriy Zhuk. This candidate also has impressive track record. In particular, he covered up the Maydan judges. The candidate was member of the panel of judges of the Administrative Court of Cassation within the Supreme Court, which cancelled the decision of the High Council of Justice to dismiss Vladyslava Gudym. On February 19, 2014, this judge, allowed the detention, without sufficient evidence, of two participants in the well-known march to the Verkhovna Rada on February 18, 2014, which had ended in massive beating of participants.

It is interesting that Zhuk is member of two organizations that in July 2021 made open announcement to the President of Ukraine, which urged him to veto the Law № 1635-IX. It was this law that introduced open competition for positions in the HCJ, in which the candidate is participating today.

As for other recommended ones, Tetyana Bondarenko and Alla Kotelevets have significant chances. Given the experience of previous congresses, these candidates have high chance of winning the support of judges. In fact, their biographies are typical of those traditionally targeted by clans.

For instance, Alla Kotelevets was member of the Council of Judges of Ukraine from June 2014 until November 2015. During the consideration of question regarding searches conducted by the law enforcement bodies in KDAC, the Council of Judges of Ukraine made the decision that these searches indicated “encroachment on independence of the judicial authorities”. The candidate did not publicly express her disagreement with such decision of the Council of Judges.

However, this is not the only interesting thing about candidate Kotelevets. In 2012, the High Qualification Commission of Judges sent recommendation to the High Council of Justice about her dismissal, seeing in her actions signs of violation of the judge’s oath. She “forgot” to indicate two cars in her declarations.

Tetyana Bondarenko is the judge of Mykolaiv Court of Appeal. She also has systemic problems with asset declarations and relations with the russian federation. In her declarations she understated the value of her two Lexuses, did not indicate the land plot, and hid facts of her administrative violations of driving the car. The judge’s brother is citizen of the russian federation, and sister periodically makes trips there. It is interesting that her daughter’s husband Nevzorov Oleksiy Borysovych is probably a member of the party Opposition Platform For Life, which was banned after the start of the war.

“Play like Monich

The longer the HCJ does not work, the deeper crisis of the judicial system becomes and stronger the informal centers of influence and control become. When russian tanks approached Ukraine from the east, south and north, no one was in place to give instructions to courts regarding evacuation of personnel and case materials, no one cared about preservation of the personnel and was not concerned with solving urgent problems of courts that were under occupation or were one step away from it. The reaction came a little bit later, when the head of the Supreme Court started to act, letters from the Council of Judges appeared, Members of Parliament voted for changes to the law.

With liberation of Ukrainian territories, the issue of resuming work of courts, returning judges and providing them with necessary assistance and support arises. Naturally, this role should be taken over by the High Council of Justice, which has the most influence and authority for this.

So, we don’t have time to play games with the judicial mafia anymore.

It should not be forgotten that future of Ukraine in the EU also depends on the selection of new members of the HCJ. Updating the composition of the High Council of Justice and resuming work of the body is one of seven mandatory steps that Ukraine must take. Negotiations on our accession to the European Union will not begin without it, but there are risks of delaying provision of financial assistance from independent international lending institutions, which is critical to our survival and recovery. Quick implementation of the EU requirements is important priority of Volodymyr Zelenskyi. In fact, even before the Great War, the judicial reform occupied prominent place among his priorities, it was and, we believe, remains indicator of his activity in front of society and international partners.

Undoubtedly, the judicial branch of government must be independent and impartial. However, the judicial mafia has been laughing at this phrase for years, and the society that heard about “Vovk’s wiretap recordings” clearly knows the reason. From internal administrative issue, the existence of authorized HCJ turned into the national security issue due to collaborators in the judicial system and new challenges related to the role of courts in bringing occupiers to justice. Without fully functioning HCJ, we will not clean the court structure and fill two thousand vacant judicial vacancies with normal personnel. After all, if we don’t use the opportunity to reform this body now, we’ll be stuck with current corrupt judiciary for decades to come, waiting for next window of opportunity. And once again we will have the Council of Justice, which acts according to instructions of the judicial mafia, protects Pavlo Vovk and allows him and others like him to conduct justice in the name of Ukraine.

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