December 15, 2017
In November, the new Supreme Court was formed in Ukraine and will start its operations in December. Last year, judicial reform was launched through constitutional amendments. In particular, instead of three higher courts and the Supreme Court, a unified Supreme Court was established.
On the eve of the launch of the Supreme Court’s activity, the Centre of Policy and Legal Reform conducted a survey to study the legal community’s expectations from the new institution.
The good news is that 55% of polled lawyers believe that the new Supreme Court will have a positive impact on increasing citizens’ and business’ confidence in the Ukrainian justice system. And 33% do not believe in that. This is obviously due to the expectations that the Supreme Court will have to take effective measures to justify the reorganization of top-level courts.
Unfortunately, despite fairly high expectations from the new Supreme Court, as many as 57% of polled lawyers negatively evaluate the ability of the new Supreme Court to resist political influences. And only 34% demonstrates optimism in this issue. 45% of polled lawyers believe in integrity of the new Supreme Court’s judges, and almost the same percentage (42%) do not believe in it.
The explanations for such critical attitude fall not with the legislation, which is quite favourable for the judges to feel independent and be fair. The answer lies in an inadequate implementation, which does not lead to the declared objectives of judicial reform. And above all, such objectives are to clean up the judiciary, as well as to overcome political influences.
The selection of judges to the Supreme Court lasted almost a year and included passage of tests on the knowledge of law, preparation of a draft court decision, psychological testing on the basis of four methodologies, as well as interviewing candidates on the basis of the file created as a result. Representatives of Civic Council of Integrity (CCI), which was formed by civic organizations and mostly consisted of lawyers (advocates, legal scholars, human rights activists), as well as investigative journalists, also participated in the interview process.
It appears that the High Qualifications Commission of Judges (HQCJ) and the High Council of Justice (HCJ), which conducted the selection of judges, were unable to ensure confidence in fair results of the competition and absence of political influence on them. Unfortunately, this has laid down a rather fragile foundation for the launch of the new Supreme Court’ activity.
In particular, the HQCJ, without reasonable explanations, had repeatedly deviated from the previously published methodology of candidates’ assessment. For example, contrary to the rules that it itself had published, the HQCJ kept in the competition several dozen individuals who did not meet the minimum passing score for preparing a draft court decision and should have been dropped from the competition. Some of these individuals eventually became judges of the new Supreme Court.
One of the psychological tests tested, among others, a candidate’s loyalty. Its original name is the loyalty test. As it turned out, the test is intended for the selection of personnel for agencies with a clearly defined managerial vertical and is not adapted to the needs of evaluating judges. The test works against individuals susceptible to confrontation with management, free-spirited persons, and those who often have their own position – even though these very qualities are needed for judges in the existing Ukrainian realities in order to change the system.
Despite online broadcasting of interviews with candidates, the results of candidates’ evaluation were not sufficiently transparent. Moreover, it is impossible to track any correlation between the part of competition visible to the public and its results.
Members of the HQCJ and the HCJ often took part in deliberations despite the existence of a conflict of interests. Moreover, some of them received state awards from the President while serving in their positions; in particular, the HCJ Chair received an award weapon, even though this is directly prohibited by the law.
More than 20% of appointed judges of the Supreme Court are those who received negative opinions from the CCI that were ignored by the HQCJ and the HCJ. The G7 Ambassadors called upon the newly appointed judges to “build public trust by carefully considering the integrity of the candidates when electing the President of the Supreme Court and the Presidents of its four chambers”. However, with the exception of the President of the Supreme Court, other senior positions in the new Supreme Court went to former chairs of higher courts, with respect to whose integrity the CCI has voiced serious reservations.
The CCI based its opinions on facts such as submission of false information in the candidates’ income declarations, inconsistency between a candidate’s lifestyle and his or her income, failure of a judge-candidates conduct to meet the standards of judicial independence, etc. It appears as though the HQCJ used the CCI’s opinions selectively, concealing its decisions for several months. As it eventually turned out, the HQCJ rejected such opinions on the grounds of lack of decisions by government authorities that would confirm the facts contained in the CCI’s opinions, among others.
In order to rebut the false evidence in property declarations, the HQCJ referred to statements by the National Agency for Prevention of Corruption (NAPC). Interestingly, several months after the competition, one of the NAPC’s top managers stated publicly that, despite formal independence, the NAPC had “handlers” within the Presidential Administration and had to “confirm” the results of all property declaration verifications with them. And although the whistleblower was appointed head of the department of declaration verifications, the NAPC’s leadership blocked her access to the results of declaration verifications for the Supreme Court candidates, ostensibly because those were carried out prior to her appointment.
It appears that, without having a real impact on the results, the Ukrainian public had mostly lost the battle for the new Supreme Court to the political authorities. Any negative signals from CSOs regarding the competition were interpreted by the authorities as sabotage of the reform. At the same time, each step of such implementation resulted in gradual disappearance of the society’s faith in the ability to achieve the goals of judicial reform and to finally obtain a fair, honest and independent court.
There is still a lot of unfinished work ahead, such as the creation of the anti-corruption court, formation of its composition, and ironing out its activity. It is also not less important to conduct qualification evaluation of each judge in order to dismiss those who do not meet the competence, integrity and professional ethics requirements. If these processes will be carried out according to the same script that has already been used by political authorities during the new Supreme Court formation, then the implementation of the rule of law in Ukraine may face poor consequences.
The European Union is investing a lot in the implementation of judicial reform in Ukraine. That is why Ukraine has made major progress in reforming its justice sector – especially regarding the creation of new legislation, as well as with respect to issues unrelated to personnel policy. The reform’s success depends heavily on proper assessment of all risks – from insincere intentions of the judicial authorities to the use of judicial reform measures in order to achieve narrow political interests. It is important that support for Ukraine be accompanied by a clear understanding of these risks and by controlling the implementation of each step within the reform process.
Author: Roman Kuybida, Deputy Head of the Board of the Centre of Policy and Legal Reform (Ukraine), Member of the Civic Council of Integrity.Author : Ukrainian Liaison Office in Brussels