by Halyna Chyzhyk and Kateryna Butko, originally published by UP
On January 19, the first meeting of the renewed High Council of Justice (HCJ) took place. It is symbolic that the first decision of the new HCJ was to approve the State Anti-Corruption Program (SAP) for 2023-2025.
We should recall that the State Anti-Corruption Program is the comprehensive document developed by the National Agency on Corruption Prevention (NACP) that describes problems that exist in various government agencies and proposes specific actions to address them.
The important role in the State Anti-Corruption Program is assigned to the judicial reform and the fight against corruption in courts.
It took almost 7 hours of active discussions for members of the HCJ to approve the position on the State Anti-Corruption Program. As the result, the High Council of Justice supported the Anti-Corruption Program, but with the number of reservations. The decision was almost unanimous, namely 14 out of 15 votes were in favor.
We should note that the Council of Judges, headed by odious Bohdan Monich, made very similar comments regarding the State Anti-Corruption Program.
We decided to take closer look at the reservations and find out what exactly representatives of the judiciary dislike about the State Anti-Corruption Program and whether it should really be taken into account.
Deny the fact of low public trust in the judicial system
One of paragraphs of the State Anti-Corruption Program contains the following problem: “There is tendency in society to increase the level of distrust in bodies in the judicial system”.
Members of the High Council of Justice strongly disagreed with this and stated that allegations of distrust in the judiciary “are not supported by any real research among the professional community or wide range of consumers of judicial services”.
What is the real situation:
One of the latest polls conducted by Razumkov Center in September 2022 shows that tendency of increasing trust in the government by Ukrainians has hardly affected courts: 72% of citizens do not trust courts, and this is one of the highest rates of distrust.
Denying the overwhelming distrust of courts, new members of the High Council of Justice resort to the traditional manipulation often used by their predecessors: instead of national polls that represent the opinion of entire Ukrainian society, they refer to results of the survey of consumers of court services, namely direct participants of court proceedings.
Indeed, the level of trust in the judiciary is relatively higher here, but distrust prevails (35% vs. 51% in survey conducted in 2021).
So the question is: have members of the HCJ familiarized themselves with the data of polls they refer to?
The situation is made even more absurd by the fact that while denying Ukrainians’ distrust of the judiciary, new members of the HCJ also deny the need for the judicial reform, which helped them to get their positions.
Instead of setting the goal to increase the level of trust by ensuring transparency and quality of decisions, members of the renewed HCJ continue to play the game where the main rule is to deny reality and support illusion that the system is perfect and does not need any changes.
Regulation of the mechanism for preventing conflicts of interest in the High Council of Justice and the High Qualification Commission of Judges
Today, if any member of the HCJ has conflict of interest when considering the particular issue, he or she is obliged to report it. However, whether or not member of the HCJ with conflict of interest will be removed from consideration of this issue is decided by general vote of members of the body.
In the past, in similar cases member of the High Council of Justice has repeatedly remained to consider the issue despite the declared conflict of interest. The State Anti-Corruption Program draws attention to the need to change this tendency.
However, according to members the HCJ, there is no problem here, as there are no analytical materials to confirm this, and, moreover, “there are also no specific facts about the decision-making by members of the HCJ in conditions of potential or real conflict of interest”.
What is the real situation:
And again, members of the HCJ deny the obvious. Back in 2017, the analytical study conducted by the DEJURE Foundation convincingly demonstrated that members of the High Council of Justice participate in decision-making despite the conflict of interest: only in 4 out of 62 cases, member of the HCJ was removed from consideration of the issue.
The conflict of interests in decisions of members of the HCJ was investigated by journalists. As the result, powers of member of the High Council of Justice Viktor Hryshchuk were terminated in 2022, in particular because he acted in conditions of conflict of interests, as stated by members of the Ethics Council in their decision.
Ensure transparency in voting and scoring by members of the HCJ and the HQCJ
Authors of the State Anti-Corruption Program drew attention to numerous public complaints about non-transparent scoring while conducting the qualification assessment of judges by the High Qualification Commission.
Position of the HCJ: traditionally, members of the High Council of Justice wrote back that they had no problems with transparency of scoring or voting and could not complain about it either.
What is the actual situation: according to part 4, article 34 of the Law of Ukraine “On the High Council of Justice”, decisions of the High Council of Justice and its bodies are made by open voting, unless otherwise provided by the law. You might think, really, what’s the problem?
However, members of the HCJ interpret openness provided for by the law in a strange way: they do not announce voting results by name, but only publish the total number of votes for and against each decision. Therefore, the public does not know the position of particular member of the HCJ on any issue, unless it is unanimous decision.
In this way, members of the HCJ avoid personal responsibility for their decisions, which becomes collective irresponsibility.
We are convinced that publication of voting results by name would not only increase transparency of the body, but also make members of the HCJ more careful in fulfilling their professional duties.
We should note that this paragraph of the State Anti-Corruption Program applies not only to decisions of the High Council of Justice, but also the High Qualification Position of Judges, and affects important tool for evaluating judges and candidates for judicial positions.
In the past, criticism of the HQCJ’s activities was largely based on the fact that it was not clear what scores were given to candidates by individual members of the commission and how the candidates’ places in the final ranking were determined.
Strengthening the role and institutional capacity of the Public Council of Integrity (PCI)
The State Anti-Corruption Program separately highlighted the place of the PCI by drawing attention to the need to “more clearly define tasks and powers of the Public Council of Integrity, ensure its composition, which would include various representatives of society, and strengthen rules on conflicts of interest, in particular by introducing effective control mechanism”.
The text of the State Anti-Corruption Program also refers to the need to increase the PCI’s institutional capacity.
Position of the HCJ: in their comments members of the High Council of Justice emphasize that no additional powers or, moreover, institutional strengthening of the PCI are needed. In support of this position, members of the HCJ say that the legislator has not defined clear status for the PCI, and also refer to the opinion of the Council of Europe as of 2017 on the Council’s regulations.
What is the real situation:
Members of the HCJ contradict themselves here, as they say that the status of the PCI is not regulated, while at the same time they oppose its regulation.
In fact, activities of two compositions of the PCI in the past have demonstrated success of the idea of involving public in evaluation and selection of judges.
Position on public participation in the judicial reform may become one of the litmus tests for assessing the sincerity of intentions of newly selected members of the HCJ. After all, if they are focused on qualitative renewal of the judiciary, they should be most interested in assistance to civil society. On the contrary, if their intentions are insincere and they have something to hide from society, they will do their best to prevent the active involvement of external participants.
Ensure clear and understandable criteria of integrity during the qualification assessment of judges
The State Anti-Corruption Program proposes to improve procedures for selecting and evaluating judges, develop clear, understandable and predictable evaluation criteria, and ensure unity of approach between the HQCJ, the PCI and the HCJ. At the same time, the document suggests adopting the best practices developed in the past, in particular by the Public Council of International Experts.
Position of the HCJ: Traditionally, the HCJ opposes the proposed changes, insisting that the criteria in the law are sufficient.
What is the real situation:
Ukrainian legislation defines only general criteria for evaluating judges and candidates for judicial positions. These criteria should be detailed in regulatory documents by the HCJ and HQCJ and tested in practice.
In past, the lack of clearly defined evaluation indicators allowed for arbitrary decisions when, under the same circumstances, some candidates were disqualified from the competition and others were at the top of ranking list. Likewise, the lack of unified approaches to reviewing disciplinary complaints made it possible to punish or not to punish judges for the same violations.
Therefore, such position of new HCJ makes us once again doubt the sincerity of their intentions. After all, clear and detailed rules should have helped members of the HCJ to fully and efficiently fulfill their tasks and prevented them from unequal practices.
We should note that reviewing and improving the methodology for selecting judges, defining clear and understandable criteria and indicators is one of Ukraine’s obligations under the new macro-financial agreement with the EU.
We hope that the HCJ will not criticize this document and its proposed changes.
Prohibition on dismissal of the judge at his/her own request before the consideration of disciplinary proceeding
One of the important measures proposed by the State Anti-Corruption Program is a ban on dismissing the judge from his/her position upon his or her request for resignation until the disciplinary proceeding against the judge is completed.
Position of the HCJ: The HCJ proposes to remove this measure, as it may allegedly lead to violation of the constitutional guarantees of judges.
What is the real situation:
This problem was one of the most frequent complaints from the public against previous composition of the HCJ.
Very often, judges who are subjects to disciplinary proceedings try to retire for considerable life allowance and avoid punishment in this way. And the HCJ is happy to assist them in this.
For instance, a few years ago, the HCJ sent judge Nataliya Bulavina on honourable retirement, while the HCJ was considering the appeal from the HQCJ to dismiss the judge for committing the disciplinary violation. The reason was that the judge remained in occupied Luhansk and started working for the so-called LNR court. She held positions of the chairman of the Council of Judges and the judge of the Supreme Court.
Nataliya Bulavina’s work for the enemy was confirmed by the SBU. However, instead of dismissing the judge for disciplinary violation, the HCJ granted her honorable retirement with lifetime payments at the expense of taxes of Ukrainian citizens.
We should also recall the case as of March 10, 2020, when the first item on the agenda was dismissal of the judge from the Court of Appeal of Rivne region Anzhelika Sheremet, and the second item was her dismissal due to failure to pass the qualification assessment. At that time, the HCJ considered only the first issue, as it is impossible to dismiss the judge twice.
Therefore, the proposal to clearly define in the law the sequence of consideration of issues related to dismissal of judges seems quite logical. It is clear that judges themselves do not like this proposal, as they may lose one of the most important loopholes for the future.
Unfortunately, by opposing such proposal the HCJ demonstrates that it puts interests and desires of judges above the public interest and is ready to impose on citizens the burden of lifetime payments to dishonest judges just to avoid criticism of the judiciary.
***
Thus, we can see that comments of the HCJ to the State Anti-Corruption Program are aimed at preserving current practices and maintaining the atmosphere of clannishness, according to which selected members of the HCJ have almost unlimited power to decide on judicial careers, and being obliged only to those who selected them to positions.
Unfortunately, aggressive rhetoric of the HCJ is no different from the of its predecessors, which suggests that recent efforts to reform the body have been in vain.
It seems that members of the HCJ, although they were appointed due to new selection rules, set themselves the task of preventing any updates and changes for the better, although it was the change in the HCJ’s practices and approaches that was the goal of the reform.
That is why the approval of the State Anti-Corruption Program looks like the confrontation between old system and new approaches aimed at eliminating opportunities for abuse and corruption.
The government committee and the Cabinet of Ministers will determine who will win this battle. They will either force the NACP to take into account all comments of the judicial mafia or support the current version of the document.