The competition to select judges for Ukraine’s High Anti-Corruption Court has reached the Rubicon.
A total of 156 candidates remain in the race, out of 342 candidates who applied. Among them were 155 judges, 135 attorneys, 44 academics and eight attorneys with a scientific degree.
However, after the formal examination of the applications, some candidates were barred from participating in the competition due to their lack of experience, or lack of a complete set of documents for the competition. Later on, only 156 candidates scored enough points on the test to assess the candidates’ knowledge to move on and take the practical assignment.
While the High Qualification Commission of Judges of Ukraine evaluates the example court decisions the candidates produce for their practical assignment, six international experts have arrived in Kyiv to assess the integrity and the proficiency of the candidates. Four judges and two prosecutors have been appointed to the body that will assess the candidates – the Public Council of International Experts. The council will have 30 days to assess all the available information regarding the candidates and to express their concerns to the High Qualification Commission of Judges.
Upon a request from three members of the council, a candidate’s integrity and professionalism will be considered at a special joint meeting of the High Qualification Commission of Judges and the council, during which doubtful candidates can be excluded from the competition.
Those who will remain will still need to undergo a special background check and psychological testing. The final stage is an interview. This is where the High Qualification Commission of Judges gives its final grades to the candidates.
From there, the list of successful candidates will be sent to the High Council of Justice – the judicial governance body that is authorized to make final decision on judicial appointments. After the High Council of Justice makes its decisions, the president is obliged to sign a decree appointing the recommended judges.
But with so many national intuitions involved, why is Ukraine still seeking the assistance of foreign experts?
Well, basically it is because Ukraine’s judicial governance bodies have shown not only an inability to select the most qualified of the candidates for the highest judicial positions, but have also demonstrated their intent to exclude independent and popular judges from competing.
For instance, a famous whistleblower in Ukraine, Judge Larysa Golnyk, was banned from the competition to the High Anti-Corruption Court because of a Facebook post she made.
Since 2015, Golnyk has spoken publicly (and acted as witness) against the mayor of Poltava for having his ex-deputy pressure her to close a corruption case. Golnyk was also critical of Oleksandr Strukov, the chairman of the court in Poltava where she worked, for censoring her speeches on the mayor’s actions.
Then, in May, the High Council of Justice announced it was reprimanding Judge Golnyk for her post about the re-election of Strukov as chairman of the Poltava court. According to Ukrainian legislation, judges who have disciplinary matters outstanding are prohibited from participating in competitions for vacant judicial positions for a period of one year. In the opinion of the HCJ, Golnyk’s statement defamed the judiciary and undermined the authority of the legal system.
And another judge may be prevented from obtaining a position in the High Anti-Corruption Court due to new disciplinary cases being opened against him.
Right after judge, Viktor Fomin, applied for the position of High Anti-Corruption Court judge, six complaints were filed against him with the High Council of Justice. As an investigating (pre-trial) judge since January 2018, Fomin had considered requests in cases involving members of parliament (Oleh Lyashko, Ihor Mosiychuk), the son of Interior Minister Arsen Avakov, Deputy Head of the Security Service of Ukraine Pavlo Demchyna, and others.
Fomin, among others decisions, had approved requests made by the National Anti-Corruption Bureau of Ukraine to arrest a close ally of the mayor of Odesa; allowed a search of the premises of two Kyiv judges, and extended a preventive measure against lawmaker Boryslav Rozenblat. On Nov. 2, 2018, the first disciplinary chamber of the High Council of Justice reprimanded Fomin for violating procedural rules while considering a request for seizure of property. Fomin says the finding was not well grounded, and he has since filed an appeal. If the decision is not overruled by the end of July, he will not be able to consider cases against top corrupt officials.
And in yet another case, Lviv Oblast Judge Vitaliy Radchenko granted permission in 2017 for NABU detectives to search the house and the office of a Kyiv District Administrative Court judge, Pavlo Vovk. As a result of these searches, detectives obtained important evidence of violations of legislation on the prevention of corruption.
But then judges of the Kyiv District Administrative Court filed a complaint against Radchenko with the High Council of Justice. On Nov. 5, 2018, Radchenko was reprimanded by the council. Radchenko may now be prevented from obtaining a position on the Cassation Criminal Court within the Supreme Court – a post he is curerntly competing for. The Supreme Сourt will consider top-corruption cases at a cassation instance.
These actions against Golnyk, Radchenko, and Fomin are illegitimate, and represent undue pressure. Beyond this, they demonstrate that successful judicial reform in Ukraine cannot be carried out by the High Qualification Commission of Judges or the High Council of Justice. Involvement of independent observers and experts is necessary, and as also mentioned by the European Commission for Democracy through Law, also known as the Venice Commission, is justified in Ukraine’s specific situation. This is why the involvement of the Public Council of International Experts in the process is vital.
Outsourcing the integrity checks of judges is not a new thing for Ukraine. For example, the Public Integrity Council participated in the first Supreme Court Competition and analyzed 380 candidates. A total of 51 candidates were blocked due to a negative opinion of the council, but still, 30 candidates vetoed by it were appointed to the Supreme Court.
This shortcoming was made possible by numerous manipulations and mistakes made by the High Qualification Commission of Judges during the competition process, which were later outlined by civil society.
In the process of forming the High Anti-Corruption Court, the Public Integrity Council has been substituted for the Public Council of International Experts, but everything else in the procedure is the same. DEJURE Foundation experts have highlighted the problems that the Public Integrity Council faced during the selection procedure to the Supreme Court, and consequently the Public Council of International Experts will likely face similar problems during the anti-corruption court competition.
To prevent this negative scenario from being played out again, a number of public organizations, such as the Anti-Corruption Action Center, AutoMaidan, the DEJURE Foundation, and Transparency International Ukraine issued a statement outlining what exactly can be done by the High Qualification Commission of Judges in order to ensure the Public Council of International Experts can work fully and effectively during the selection of judges for the High Anti-Corruption Court. Their demands are as follows:
Ensure full access for Public Council of International Experts members and the council’s secretariat to candidates’ materials, including personal data from the candidate dossiers and data from the state registers;
Ensure access of the council and its secretariat to the practical assignments performed by candidates during their examinations;
Identify clear criteria for assessing the integrity of candidates, and establish standards for demonstrating compliance or non-compliance of candidates with these criteria;
Modify the methodology for assessing candidates to make the indicators more objective;
Disclose the scores received by candidates from each of the members of the High Qualification Commission of Judges for each of the assessment indicators, as well as justifications for the assigning of scores to all candidates.
It is solely up to the High Qualification Commission of Judges whether to adopt the requests, or not – to do this, they do not require amendments to the law – the High Qualification Commission of Judges can simply change their own rules of procedure.
Meanwhile, it is important that we stay alert during the holidays, as the special joint meeting between the High Qualification Commission of Judges and Public Council of International Experts might be scheduled just before Christmas Eve.
