Ukraine’s Supreme Court Competition: process is nothing, result is everything

Sergiy Koziakov, the Head of the High Qualification Commission of Judges (HQCJ), in his recent article “Rebuttal: Ukraine’s Supreme Court Competition is a model process” praises the selection process for the new Supreme Court as transparent, implementing and even overimplementing European standards and best practices.

The focus on process, that Koziakov offers, is misleading and withdraws attention from results of the competition. Meanwhile, Ukrainian society, tired of assessing never-ending processes, is judging competition for the new Supreme Court by its results. Result is not in the number of hours of interviews with the candidates, broadcasted online, and not even in the number of negative opinions of Public Integrity Council,  disregarded by HQCJ. Major question we would like to ask Mr. Koziakov, as well as Mr. President Poroshenko as initiator of the judicial reform, is: Whether competition to the Supreme Court brings much expected renewal of the judiciary?

Pre-final  result of the “model” competition is the fact that old-style judges, who are literally symbols of corruption and lack of trust to the judicial system, have successfully passed all stages of the competition and preserve good chances of becoming old-new faces of the Supreme Court.

Both common sense and Ukrainian legislation require judges of the supreme judicial body to be of impeccable integrity, professionalism and ethical standard.

Nevertheless, among 120 judges that HQCJ intends to recommend for appointment to the new Supreme Court there are judges who violated human rights as was recognized by the European Court of Human Rights; judges, who prohibited peaceful protests and participated in political persecutions in the times of ex-president Viktor Yanukovych;  and candidates with obvious mismatch between their assets and declared income.

As we see, what Mr. Koziakov calls “transparent procedures by European standards” in the hands of HQCJ have not yet allowed to filter out dubious candidates.

Judges who violated human rights as recognized by the European Court of Human Rights – are among finalists.

Although Ukraine recognized supreme authority of the European Court of Human Rights (ECHR) and took an obligation to comply with its judgements, the HQCJ accepted candidates, whose rulings were judged by the Court as violating fundamental rights and freedoms. The ECHR had to rule twice on behalf of 97-year-old woman fighting for her property rights, as ECHR’s first decision was neglected by Yaroslav Romaniuk and Inna Berdnyk – acting judges of the Supreme Court. Both successfully passed through the ‘model process’ and may get a job in the Supreme Court thanks to HQCJ.

While it is hard to imagine a judge, who was proven to violate the right for fair trial, to be appointed for any position at the US judicial system, new Ukrainian Supreme Court may get such judges.

Candidates who demonstrated mismatch between their assets and declared income – are not disqualified from the competition as well.

Unjustified assets of public officials are main indicators of corruption in present-day Ukraine. The salary of a Ukrainian judge in past few years varied from USD 600 to USD 3 000 per month, which cannot justify affluent lifestyle.

Nevertheless, the Commission accepted candidates who cannot explain sources of income, that allowed them or their family to own expensive real estate or other objects. One of the candidates, judge Tetiana Kozyr, has a retired mother who possesses 4 apartments, land and a residential house, but is unable to prove sources of income for such a wealth. Ukrainian legislation sees this as possible sign of illicit enrichment of a judge. By a coincidence, this judge also adopted a decision that legalized acquisition of state-owned residence Mezhygirya by ex-president Yanukovych.

Judges who prohibited peaceful protests in the times of ex-president Viktor Yanukovych – may also appear at the short-list of winners.

Judicial prohibition on peaceful protests was one of the tools former president Yanukovych used to try to suffocate mass protests in late 2013-early 2014. Despite the fact that judges, who adopted these decisions, were subject to lustration according to the law, the HQCJ this far refused to disqualify at least 4 such candidates.

Finally, сandidates who took ‘politically motivated decisions’, also made it to the final of what Koziakov call ‘a model selection process’

The Commission managed to close its eyes even on the most obvious fact that compromises a candidate. At least 9 candidates, that are this far accepted by the Commission, lied in their integrity declarations – mandatory part of application package for the position of Supreme Court judge. They were trying to hide their participation in political persecutions. For example, judges Sergiy Slynko and Viacheslav Nastavniy failed to indicate that in 2013 they (as members of panels) adopted final decision against Yuriy Lytsenko, former Minister of Interior Affairs, while the case was recognized as politically-motivated prosecution by the Council of Europe back in 2012.

 Above-mentioned facts are incompatible with requirements towards a judge of the Supreme Court. Moreover, these facts must be taken into account by the High Qualification Commission of Judges according to its own by-laws. The Commission shall consider information that shows the level of integrity, professionalism and ethical standard of a candidate and cannot ignore proven and publicly known facts of a candidate violating human rights or participating in political persecution, whoever gave these facts to the Commission.

Major argument the Commission gives in support of its decision not to disqualify questionable candidates from the competition, is the lack of strong evidence to prove the guilt of a candidate.

This is a manipulation with the overall aim of judicial reform.

Rebooting of the Supreme Court has been initiated to meet the problem of low level of trust to judicial system: Ukrainians trust our judiciary slightly more than Russian media, while foreign business names lack of trust to courts as second major obstacle for investing in Ukraine. The HQCJ is not supposed to judge whether a candidate is guilty of illicit enrichment or abuse of power. What the Commission is supposed to do is to select candidates whose profile is beyond doubts and who will restore trust to the judiciary. It is obvious that selection of candidates with questionable assets or decisions against human rights do not meet this aim.

The Commission still has a chance to disqualify questionable candidates. Now they are compiling final ratings of all the candidates – one for each of four cassation courts within the Supreme Court of Ukraine. Most likely, first 30 candidates in each of the ratings will be offered for appointment as new Supreme Court Judges. However, the rating is based on complicated subjective scores, given on a discretion of members of the Commission or based on classified information (results of psychological testing). Therefore, the Commission also preserves an opportunity to give high scores to the above-mentioned dubious candidates even after all hours of broadcasted interviews and dozens of published judicial profiles.

Should the Commission offer for appointment candidates with unjustified assets, fraud in declarations, past decision against human rights or politically-motivated rulings, we will consider the competition to the Supreme Court as a failure.  Ukrainian society will not accept transparent procedure that legitimizes notorious result as a real reform.

By Anastasia Krasnosilska, AntAC advocacy manager and lawyer for Atlantic Council.

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