Is there hope that corrupt judges will be punished, given the threat that Judge Vovk will continue to adjudicate in the name of Ukraine

Is there hope that corrupt judges will be punished, given the threat that Judge Vovk will continue to adjudicate in the name of Ukraine

In 2019 the authorities disbanded the High Qualification Commission of Judges and relaunched judicial reform. Three years have passed, and new members of the HQCJ still have not been selected. The competition is ongoing. When the commission is formed, its representatives must evaluate 2 thousand sitting judges, and also recruit approximately 2,5 thousand new ones.

The outlet hromadske examined how to avoid failure of the new evaluation and who is obstructing reforms in this process.

Re-certification of judges

Two bodies determine career matters in the judicial branch. One is the High Council of Justice (HCJ), which appoints judges to positions, holds them accountable, and dismisses them. The other is the High Qualification Commission of Judges (HQCJ), which selects candidates for the HCJ and evaluates judges. Without this, a judge cannot be appointed to a position.

Since 2015 a new stage of judicial reform began. All Ukrainian judges were required to undergo qualification evaluation, which was intended to determine whether the servants of Themis fit the positions they hold. By 2019, of about three thousand judges checked by the commission, less than one percent were dismissed.

The then head of the Odesa District Administrative Court, Oleg Hlukhanchuk, was recognized as honest and worthy, although in February 2017 he drove a car while intoxicated and behaved aggressively toward police — footage from officers’ bodycams was released by journalists.

The head of the Obolon District Court of Kyiv, Vladyslav Devyatko, who presided over cases against Maidan participants, also passed the check without problems. He ordered the pretrial detention of one protester and revoked the driving rights of AutoMaidan members for trips to Yanukovych’s residence.

There were negative conclusions from the Public Integrity Council (PIC) regarding these two and many other judges, yet the High Qualification Commission successfully re-certified the judges. This was one of the reasons the PIC withdrew from the qualification process in 2018.

The notorious head of the Odesa Administrative Court, Pavlo Vovk, influenced the adoption of dubious decisions by the previous composition of the HQCJ. He and other representatives of the disbanded District Administrative Court must undergo a commission review once it is formed.

The independence of the previous HQCJ was also questioned due to informal meetings of its members with controversial judges. For example, commission members Serhii Koziazkov, Taras Lukash, and Volodymyr Butenko attended the birthday of the deputy head of that same court, Yevhenii Ablov. Ablov, in particular, is known for having issued rulings that allowed the Berkut to disperse protesters during the Revolution of Dignity.

Competition for the position of HQCJ member, 21 February 2023. Photo: facebook / Competition commission for selecting HQCJ members

Final day of interviews with candidates for the position of HQCJ member, 21 February 2023. Photo: facebook / Competition commission for selecting HQCJ members

Final day of interviews with candidates for the position of HQCJ member, 21 February 2023. Photo: facebook / Competition commission for selecting HQCJ members

Searching for “agents of change”

In 2019 the Verkhovna Rada disbanded the commission due to ineffective work. Since then, the evaluation of judges was blocked. Only at the end of 2022 did the competition commission begin work; it must select new candidates for the HQCJ so it can function again. Importantly, the commission consists of 6 experts, three of whom are international. They have decisive votes when weeding out candidates.

“We plan to hold an official meeting in March where we will announce a list of 32 candidates that we will propose to the HCJ for appointment, and they will decide whom to appoint,” said Deputy Head of the Competition Commission Ivan Mishchenko.

From these 32 they must select 16 new HQCJ members. Eight of them will be judges, and the other eight will be lawyers who must have at least 15 years of professional experience.

“Among candidates for the HQCJ there are very few judges who, in our view, meet integrity requirements. In other words, there are enough non-judge candidates. But among judges there is a problem. The law requires that half of the HQCJ be judges. The commission must propose 2 candidates for each vacant position. We do not see 16 candidates among judges who meet integrity requirements,” says advocacy manager of the Dejure Foundation, Stepan Berko.

As Berko notes, if the majority of those chosen for the High Qualification Commission are honest agents of change, there will be no problems with re-certification and evaluation of the judiciary. But if their reputations are questionable, the practice of past years, where the dishonest were deemed honest, will repeat.

Who is afraid of civic activists?

Who enters the commission is important, but it would be better not to rely solely on new personnel and instead establish a legislative foundation that ensures effective judicial evaluation, says head of the nationwide AutoMaidan association, Kateryna Butko.

This foundation was attempted in the State Anti-Corruption Program (SAP) of the National Agency for Prevention of Corruption, developed last year. It proposed that if the PIC issues a negative conclusion about a judge or judicial candidate, that person must prove their integrity, and the decision about their future (whether they pass re-certification) should be made not only by the HQCJ but by the HQCJ and the PIC at a joint session. However, the High Council of Justice opposed strengthening the role of the Public Integrity Council.

“At the highest levels there was and is no support for involving independent public experts. They fear us because the Public Integrity Council’s work has shown that it is an uncompromising body that does not strike deals,” says Center for Countering Corruption expert and two-term PIC member Halyna Chyzhyk.

NACP made concessions and wrote a vague formulation into its program instead of specifics — “create a new mechanism for taking the PIC’s conclusions into account.”

“The Council of Judges and the HCJ initially demanded deletion of this point entirely. As a result of coordinating meetings we reached a compromise, softened wording that preserved the point and allowed us to determine the specific mechanism during implementation,” says NACP Deputy Head Andrii Vyshnevskyi.

HCJ Chair Hryhorii Usyk is confident that the Public Integrity Council must remain an advisory body, and final decisions about judges’ careers should be made by judicial governance bodies, which, Usyk says, guarantees the independence of this branch.

We asked the HCJ chair whether the new commission will allow old judges with questionable reputations to pass if additional safeguards are not introduced. Hryhorii Usyk believes the new HQCJ will work with higher quality.

“Now the High Qualification Commission is being formed on new principles, on completely new foundations. A competition commission has been created with the participation of respected international experts. The selection is transparent, candidate interviews are broadcast and anyone can watch them. The new HQCJ will be appointed by HCJ members who underwent a rigorous review by the Ethical Council for compliance with professional ethics and integrity criteria. Therefore, there is no basis for comparison with the past,” Usyk is convinced.

Who is slowing adoption of the State Anti-Corruption Program?

The Cabinet of Ministers was supposed to approve the State Anti-Corruption Program before 3 February. The government committee chaired by Defense Minister Oleksii Reznikov approved the program.

“I was at the meeting where Reznikov said: ‘We will review everything in the coming days, the Cabinet will vote.’ So it looks like stalling,” says Kateryna Butko, head of the nationwide AutoMaidan association.

Almost a month passed — the program has still not been approved. Therefore the new HQCJ members may evaluate old judges under the old system. As a result, there is a threat that Judge Vovk will continue to issue rulings in the name of Ukraine.

“When the qualification evaluation ends, aside from the disciplinary procedure instrument — when a judge commits a disciplinary offense and the HCJ can hold them accountable — we will have no other way to purge the system of an unworthy judge. That task should have been fulfilled by the qualification evaluation. So if we now re-certify everyone under the old rules, then why talk about reform at all?” summarizes Center for Countering Corruption expert Halyna Chyzhyk.

The SAP also identified the need for new unified criteria for evaluating judges and judicial candidates. They should be developed by all bodies involved in the process.

“If the government adopted the SAP soon, this possibility (to start qualification evaluation under new rules) would still exist. The norms related to judicial reform could be among the first to go through. Because it is currently in an active phase. The branch least interested in adopting the SAP is the judiciary,” says Deputy Head of the Verkhovna Rada Committee on Anti-Corruption Policy, Yurchyshyn.

Moreover, time is needed to draft and consider the relevant bills in parliament after the State Anti-Corruption Program is approved.

We sent a request to the Cabinet to obtain an explanation for the delay in deciding on the State Anti-Corruption Program, but at the time of publication we had not received a response.

Yevhenii Shulhat, published in hromadske