Threat from the Constitutional Court, relaunch of the HCJ and dismissal of dishonest members: what to expect from judicial reform in Ukraine

by Halyna Chyzhyk and Khrystyna Ivasiuk, originally published at UP

Recently, a drunk driver knocked down and killed a man at a pedestrian crossing in Lviv. The perpetrator of a fatal accident is recidivist Yuriy Shcherbinin, who was convicted several years ago for speeding and drunk driving. Then, he received a fine in the amount of only 3400 UAH.

Could the driver, who likes drunk driving, receive more severe punishment? Definitely yes. However, the judge of Zaliznychnyi District Court of Lviv Nataliya Palyukh made the decision that it was too cruel to deprive Shcherbinin of the right to drive the car for the period of up to two years. Indulgent decisions of Ukrainian judges regarding drunk drivers take people’s lives. And this is just one in a thousand of such cases. 

The judicial reform in Ukraine is the most expected and desirable because less than 2% of Ukrainians trust courts. After several failed attempts to reform the judiciary, the key law was passed in July this year. It will not be limited to cosmetic repair, but will bring radical changes.

These changes concern top of the judiciary. Namely, those who are used to work not according to the law but according to the agreement, those who lead all injustice in the country – members of the High Council of Justice.

Who will be vetting members of the High Council of Justice?

From now on only a person who passes the transparent competition and integrity test by the Ethics Council can become a member of the High Council of Justice. The Ethics Council is a key element of judicial reform, as the HCJ is the most powerful body in the judiciary that decides personnel issues and even the dismissal of unworthy judges. Therefore, it depends on the Ethics Council whether we will be able to clean and renew courts this time. 

The Ethics Council has two powers:

  1. Evaluation of integrity of all candidates applying for positions at the High Council of Justice (except for the chairman of the Supreme Court, who is a member of the HCJ ex officio). According to the results of the evaluation, the Ethics Council makes the conclusion and decides whether to recommend the candidate for appointment. Only those candidates recommended by the Ethics Council continue to participate in the competition;
  2. Examination of the integrity of current members of the High Council of Justice. If the Ethics Council makes the conclusion that member of the HCJ does not meet the criteria of integrity and professional ethics, it initiates his/her dismissal. The final decision in this matter makes the body that appointed this member of the HCJ.

The Ethics Council consists of three members from the Council of Judges of Ukraine and three international experts delegated by international organizations that provide assistance to Ukraine in the field of judicial reform and anti-corruption. 

Who are members of the Ethics Council that will clean up the HCJ

  • Lev Kyshakevych, the judge of the Criminal Court of Cassation within the Supreme Court 
  • Yuriy Tryasun, the judge of Kyiv Court of Appeal
  • Volodymyr Siverin, the retired judge of Eastern Economic Court of Appeal
  • Robert Cordy, the retired judge of Massachusetts Supreme Court
  • Sir Anthony Hooper, the retired judge of the Court of Appeal of England and Wales
  • Lavly Perling, former Prosecutor General of the Republic of Estonia.

The reputational and qualification gap between delegated persons from the Council of Judges, which thwarted the reform, and international partners is striking. While international experts have successful experience in investigating complex crimes, members of the Ethics Council selected by the Council of Judges have been highlighted in the number of scandals.

The judge of Kyiv Court of Appeal Yuriy Tryasun passed “fake” qualification assessment in November 2016, which did not provide for CSO’s participation and dismissal of dishonest judges. 

According to the judge’s declaration of family ties in 2016, his own brother Tryasun Pavlo Rostyslavovych has held senior position at Berkut in Kyiv region since at least 2012. In 2011, Pavlo Tryasun received bonus in the amount of 20.000 UAH for “Police Day”. It is evidenced by Yanukovych’s secret accounting office found in Mezhyhirya. 

We should note that in 2016, Yuriy Tryasun, as member of the panel of judges, released from custody Oleksandr Belov, Berkut member accused of murders on Kriposnyi Lane in Kyiv in February 2014. 

The retired judge of Eastern Economic Court of Appeal Volodymyr Siverin demonstrated his inability to logically formulate opinions at the appropriate level for the judge during interview for membership in the Ethics Council. The judge also repeatedly made arbitrary decisions. The head of apparatus complained that Severin, as chairman of the court, had allegedly put pressure on court employees and incited them to act outside their authority, in particular, to interfere in the automated case distribution system. 

Robert Cordy is a retired judge of Massachusetts Supreme Court with experience in the U.S. Attorney’s Office as head of the Public Sector Corruption Investigation. Cordy was also responsible for appointing judges to the office of governor in Massachusetts and was professor of criminal law at Harvard Law School. This member of the Ethics Council has extensive experience in international work in the field of rule of law and anti-corruption as an expert consultant to the World Bank and other organizations in Ukraine, Uzbekistan, Russia, Macedonia, and other countries.

When he was the prosecutor, Cordy won convictions for several officials from the entourage of the mayor of Boston in the 80’s. These people received bribes in favor of the mayor to get “city support” for their cases.

The judge of the Court of Appeal for Criminal and Civil Cases of England and Wales Sir Anthony Hooper specializes in the recovery of assets obtained as a result of corruption offences. However, Anthony Hooper is undoubtedly known by Ukrainians for his participation in the selection of judges to the High Anti-Corruption Court. At that time, the Public Council of International Experts, chaired by him, vetoed almost 40% of participants of the competition because of their doubtful integrity. What is worth watching is his eloquent dialogue with the judge Victoriya Zhovnovatyuk, who tried to fool Sir Anthony Hooper with smooth talk, justifying his violations, but in the end shamefully withdrew from the competition. 

In addition, Sir Anthony Hooper investigated statements regarding corruption in sports related to Russia. The fact is that the President of the Russian Athletics Federation together with the son of the President of the International Association of Athletics Federations were engaged in concealing results of doping tests of Russian athletes. They demanded, in particular, from the Russian marathon runner Liliya Shobukhova, in whose tests doping was found, money for the right to participate in athletics competitions. In exchange for money, frauds hid real results of tests. According to the results of the investigation, they were suspended “for life from any further participation in athletics”.

Lavly Perling is the former Prosecutor General of the Republic of Estonia, who led to the conviction the case of large-scale corruption worth almost 4 million EUR in the port of Tallinn. 

The most important achievement of the new law is that international experts will have a decisive voice in the process of selecting and evaluating members of the High Council of Justice. Therefore, despite the fact that the Ethics Council includes unworthy judges, they will not be able to effectively influence the decision of the body.

The mission is to clean the HCJ: key reform dates

According to the law, the High Council of Justice consists of 21 members. 10 are appointed by the congress of judges from among judges or retired judges, 2 are appointed by the congress of lawyers, 2 are appointed by all-Ukrainian conference of prosecutors, 2 are appointed by the congress of representatives of law universities, 2 are appointed by the President, 2 are appointed by the Verkhovna Rada. The head of the Supreme Court is ex-officio member of the High Council of Justice. Today, there are 4 vacant places in the HCJ: two under the quota of the Verkhovna Rada, one from the law schools and one from prosecutors. Moreover, in March 2022, the term of appointment of two members of the HCJ under the quota of judges, namely Volodymyr Govorukha and Larysa Shvetsova, expires. 

Appointments are scheduled for December this year. The congress of representatives of law schools is scheduled for December 10, and the congress of judges is scheduled for December 22-23. You can even find the list of candidates from scientists on website of the HCJ. Moreover, the parliamentary competition has already started in September.

This means that the Ethics Council should begin its work as soon as possible in order to have time to evaluate candidates from scientists and judges, as well as candidates under the quota of the Verkhovna Rada. Thus, not only new faces will come to work in the High Council of Justice in near future, but really worthy and professional members.

Perhaps the most difficult task that members of the Ethics Council have to deal with is to clean the High Council of Justice from those members who have no place there. The law stipulates that during 6 months from the moment of its establishment, namely until May 9, 2022, the Ethics Council must examine integrity of all members of the body, except the head of the Supreme Court (because the head of the Supreme Court is member of the HCJ ex officio and thus it is impossible to dismiss him). 

If the Ethics Council makes the conclusion that a member of the HCJ is dishonest, such member is automatically suspended from office and the appointing authority has three months to dismiss or keep him or her at the position.

From the very beginning authors of the law refused to give the Ethics Council the power to dismiss members of the High Council of Justice. They were afraid of accusations regarding the unconstitutionality of the model. The fact is that the Constitution is silent on the dismissal of members of the High Council of Justice, and therefore any procedure proposed by the law will be considered constitutional. However, given the previous decision of the Constitutional Court, which had already declared powers of another body unconstitutional, the Integrity and Ethics Commission, to vote for dismissal of members of the HCJ, authors decided not to give unnecessary reasons to cancel the reform through the Constitutional Court.

At the same time, the law was drafted in a way that makes it as difficult as possible to save members of the High Council of Justice. For instance, if it happens that the Ethics Council recommends the Congress of Judges to dismiss Svitlana Shelest. This is well-known Kyiv judge, who became famous for the fact that her retired mother presented her apartment with the total area of 148 square meters in the very center of Kyiv, the elite residential complex Lypska Vezha located on on Institutska Street. There was also garage in addition to the apartment. Only declared value of this elite real estate is 2,370,163 UAH, and the real value could be many times higher.

We should recall how Svitlana Shelest got to the High Council of Justice. She was selected at the same congress of judges, results of which were decided not by secret voting, but at secret meetings of heads of judicial clans with Bankova. 

After the conclusion of the Ethics Council judges will have only three months to make the final decision. At the same time, it will not be enough to gather and fail to vote for the dismissal of Shelest. In that case, they must gather the majority of votes to keep her in office. Due to the fact how difficult it was for the Congress of Judges to make the most recent appointments, it will be difficult to keep the position for Svetlana Shelest. Not to make any decision is also not an option, because if judges are not able to decide anything within three months, Svitlana Shelest will automatically lose her position. 

It is this part of the law that causes the most discussions and public hysteria among judges and, of course, members of the HCJ. They understand perfectly well that this time they will not be able to get out of the water dry. That is why judges tried to block the creation of the Ethics Council by blackmailing the President and Members of Parliament and demanding that the law should be rewritten. When they realized that this would not work, they decided to use their most powerful weapon. Namely, the Constitutional Court.

The reform is under threat: what could go wrong 

The reform, voted in July 2021 by the Verkhovna Rada, has already suffered a lot of attacks from its opponents – the judicial mafia. Immediately after voting, several judicial organizations sent open appeal to the President to veto the law. Later, heads of cassations of the Supreme Court and members of the HCJ with hands of the Council of Judges blocked the appointment of members to the Ethics Council for almost two months. In the end, members of the Council of Judges voted for unworthy candidates to the Ethics Council. 

In turn, on October 8, judges of the Supreme Court voted by majority to submit the appeal to the Constitutional Court on unconstitutionality of the reform of the High Council of Justice. In particular, judges of the Supreme Court question powers of the Ethics Council to examine members of the HCJ, provisions on suspension and dismissal of members of the HCJ, and most importantly the decisive voice of international experts in the process.

The Constitutional Court opened proceeding in this case in record time. There is no doubt that judges will use the appeal of the Supreme Court to cancel the reform without any remorse, as they have done before with criminal responsibility for illicit enrichment and lying in declarations, or Zelenskyi’s first attempt to reform courts. We should not forget that majority of judges of the Constitutional Court today are representatives of the same dependent and corrupt judicial system that we are trying to reform. They are connected to this system by informal connections, and some even owe it to their positions.

Two courts belong to us. Namely, the Constitutional Court and District Administrative Court, stated head of KDAC Pavlo Vovk at tape-recordings. Therefore, there are no illusions about fair decision of the Constitutional Court in this case.

Instead, Zelenskyi’s office seems to continue to ignore the “elephant in the room”. More than one year that has passed since the Court made scandalous decision regarding declaring, Zelenskyi’s team has not proposed any decision either to qualitatively update the court or to prevent the court from making new arbitrary decisions.

It is interesting that the speaker in the case on the reform of the High Council of Justice is the newly appointed judge of the Constitutional Court Viktor Kychun. He entered the Constitutional Court in February 2021 under the parliamentary quota. Viktor Kychun was nominated by the presidential party Servant of the People. And during voting in the Rada Member of parliament Fedir Venislavskyi, who, by the way, represents the President in the Constitutional Court, did not hide his friendly relations with Kychun. Therefore, whether Kychun received this case by chance or not, it can be said for sure that it largely depends on him how quickly the Constitutional Court will move forward with it. As for Zelenskyi, given Kychun’s “origins”, he is unlikely to distance himself from the case.

The Supreme Court is another court that threatens the reform. Judges of the Supreme Court who will consider appeals against decisions on appointment or dismissal of members of the HCJ. Although it is not Kyiv District Administrative Court, the Supreme Court has demonstrated its attitude to changes by proposing that the reform is unconstitutional. It is also important that leaders of courts of cassation within the Supreme Court are at the same time leaders of informal judicial groups, for whom creation of the Ethics Council means loss of control over appointments to the High Council of Justice. 

It is also likely that members nominated by the Council of Judges will try to block the work of the Ethics Council by ignoring its meetings and delaying consideration of important issues. In this case, international experts will be forced to use the decisive voice given to them by the law, because otherwise they simply will not be able to perform their tasks.

The secretariat of the HCJ together with the State Judicial Administration can complicate life of the Ethics Council. According to the law,  the State Judicial Administration must ensure work of the Ethics Council organizationally, and the secretariat of the HCJ must provide information on candidates.

It is possible that under the pressure of judicial corporation Members of Parliament will try to rewrite the law. Given the “favourable” attitude of Andriy Kostin, head of the parliamentary committee on legal policy, to the judiciary, this risk seems quite real. We should recall that one year ago Kostin secretly rewrote the wording of the draft law №3711-d regarding the High Qualification Commission of Judges. He didn’t hide the fact that he coordinated the text with representatives of the High Council of Justice. 

***

For the first time in many years, Ukrainians have a real chance for fair justice. If the Ethics Council manages to cope with its tasks, within a year the composition of the High Council of Justice will be renewed almost completely, or at least the majority of members will be selected according to new procedures. The renewed High Council of Justice will begin to dismiss the villains. And only a few such decisions will be enough for the rest of judges to understand that the same thing awaits them if they support or tolerate criminal practices. 

The judicial corporation is well aware of the consequences of the reform, and therefore tried its best to prevent the creation of the Ethics Council. Due to blockade by the Council of Judges, the establishment was delayed for two months. In future, judges will not be able to sabotage the work of the Ethics Council, except with the help of their representatives in its composition. However, in this case international experts should not hesitate to take advantage of decisive voice that the law has given them for this purpose. 

The strongest weapon that opponents of the reform now have is the Constitutional Court. We know from bitter experience that it will disregard norms of the Constitution and will easily cancel the reform. Moreover, the inability of the President and the Parliament to implement the judicial reform adds confidence to judges of the Constitutional Court. 

For now, we can only hope that the Ethics Council will have time to do its work before the Constitutional Court declares it unconstitutional. After all, the decision of the Constitutional Court will not be able to automatically cancel the appointment or dismissal of members of the High Council of Justice, which will take place by then.

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