Can corrupt Ukrainian judges be punished?

Can corrupt Ukrainian judges be punished?

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 roughly 2,5 thousand new ones.

Hromadske examined how to prevent the failure of the new evaluation and who is obstructing the implementation of 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 personnel for the HCJ and evaluates judges. Without that, a judge cannot be appointed to a position.

Since 2015 a new stage of judicial reform began. All Ukrainian judges were required to undergo a qualification evaluation intended to determine whether the servants of Themis match the positions they hold. By 2019, of roughly three thousand judges reviewed by the commission, fewer than one percent were dismissed.

The then-head of the Odesa District Administrative Court, Oleg Hlukhanchuk, was found to be honest and worthy, despite driving a car while intoxicated in February 2017 and behaving aggressively toward police — footage from officers’ body cameras was released by journalists.

Vladyslav Devyatko, head of the Obolon District Court of Kyiv, who presided over trials of Maidan participants, also passed the evaluation without problems. He sent one protester to pretrial detention and revoked the driving privileges of AutoMaidan members for trips to Yanukovych’s residence.

Negative conclusions about these two and many other judges came from the Public Integrity Council (PIC), yet the High Qualification Commission successfully re-certified the judges. That was one reason the PIC withdrew from the qualification evaluation process in 2018.

The notorious head of the Kyiv District Administrative Court, Pavlo Vovk, influenced the questionable decisions of the previous HQCJ. He and other representatives of the disbanded District Administrative Court must now undergo review by the commission when 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 Serhiy Koziiazhkov, Taras Lukash, and Volodymyr Butenko attended the birthday of the deputy head of that same court, Yevheniy Ablov. Ablov is known, in particular, for rulings that allowed Berkut to disperse protesters during the Revolution of Dignity.

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

Searching for “agents of change”

In 2019 the Verkhovna Rada disbanded the commission due to inefficiency. Since then, judge evaluations were blocked. Only at the end of 2022 did the competition commission that is to select new candidates for the HQCJ begin work so it could resume operations. Importantly, the commission consists of 6 experts, three of whom are international. They have decisive votes when filtering 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 then decide whom to appoint,” said Competition Commission deputy head Ivan Mishchenko.

From these 32 they must choose 16 new HQCJ members. Eight of them will be judges, and the other eight will be lawyers with 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 judges who meet integrity requirements,” says advocacy manager of the Dejure Foundation, Stepan Berko.

As Berko notes, if the majority of the candidates chosen for the High Qualification Commission are honest agents of change, there will be no problems with re-certification and evaluation of the judiciary. If their reputations are dubious, the past practice of calling the corrupt honest will repeat.

Who fears civic activists?

Who joins the commission is important, but it would be better to rely not on new personalities but to establish a legislative foundation that will ensure effective judge evaluation, says Kateryna Butko, head of the All-Ukrainian association AutoMaidan.

They attempted to lay that foundation in the State Anti-Corruption Program (SAP) of the National Agency on Corruption Prevention (NACP), developed last year. It proposed that if the PIC gives a negative conclusion about a judge or judicial candidate, that person must prove their integrity, and the decision on their future (whether they pass re-certification or not) should be made not only by the HQCJ alone 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 experts from civil society. They are afraid of us because the experience of the Public Integrity Council has shown it is an uncompromising body that negotiates with no one,” says anti-corruption center expert and two-term PIC member Halyna Chyzhyk.

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

“The Council of Judges and the HCJ initially demanded the removal of this point entirely. As a result of coordinating meetings, we arrived at a compromise, softened wording that allowed us to keep this point and then determine the specific mechanism during its implementation,” says NACP deputy head Andriy Vyshnevskyi.

HCJ head Hryhoriy Usyk is convinced that the Public Integrity Council must remain an advisory body, and final decisions on judges’ careers should be made by judicial governance bodies, which, Usyk says, is a guarantee of the branch’s independence.

Journalists asked the HCJ head whether the new commission would allow old judges with dubious reputations through if additional safeguards are not introduced. Hryhoriy Usyk believes the new HQCJ will work better.

“Now the High Qualification Commission is being formed on new principles, on completely new foundations. A competition commission with the participation of respected international experts has been created. The selection is transparent, candidate interviews are broadcast, and anyone can watch them. Members of the HCJ who appoint the new HQCJ have undergone rigorous vetting by the Ethics Council for compliance with criteria of professional ethics and integrity. So there is no basis for comparison with the past,” Usyk is convinced.

Who is delaying 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 a 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 All-Ukrainian association AutoMaidan.

Almost a month passed — the program has still not been approved. Therefore, new HQCJ members may evaluate old judges under the old system. Consequently, there is a risk that Judge Vovk will continue making decisions in the name of Ukraine.

“When the qualification evaluation ends, aside from the instrument of disciplinary proceedings — when a judge commits a disciplinary offense and the HCJ can hold them accountable — we will have no other way to cleanse the system of an unworthy judge. That task was supposed to be fulfilled by the qualification evaluation. So if we now re-certify everyone under the old rules, then why talk about reform at all?” summarizes anti-corruption center expert Halyna Chyzhyk.

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

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

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

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

Author: Yevhenii Shulhat