Hobbling judicial reform. What needs to be done in 2024

In 2023, only 12% of citizens trusted Ukrainian courts. This is not surprising: society was shocked by a number of high-profile scandals.

Just look at the stories of the exposure of the head of the Supreme Court Knyazev for a bribe of almost $3 million and the death of a National Guardsman at a checkpoint under the wheels of a car driven by the (probably drunk) head of the Makarovsky District Court of the Kyiv Region, Alexey Tandir. To regain trust, the judiciary must be cleansed. This is also necessary for Ukraine’s integration into the European Union. Many steps have already been taken. But this year also promises to be difficult. The publication ZN.ua with the DEJURE Foundation sums up the results and outlines the year 2024.

Result No. 1: restart of the High Council of Justice

In January 2023, the updated High Council of Justice was launched - a body that appoints and dismisses judges, and also considers complaints against them. All candidates were tested for integrity and compliance with professional ethics criteria, which was carried out by a special Ethical Council consisting of Ukrainian and international experts. Today, the SCJ has 17 members, four more positions are still vacant: two representatives each must be proposed by the president and the congress of lawyers.

After a two-year pause, the Supreme Court is again considering complaints against judges. There are more than 14 thousand of them. By the end of the year, the body had reviewed about one and a half hundred. But there were only six decisions to prosecute, and five of them were warnings. In addition, the Supreme Court massively leaves complaints without consideration or refuses to open proceedings. And it is not always possible to find a clear explanation in the resolution. And this reduces trust in the body.

Thus, the Supreme Court refused to prosecute the judge of the Oktyabrsky District Court of Poltava, Anna Adrienko, instead of dismissing her, although this judge delayed 49 cases of drunk drivers, and they were simply closed due to the expiration of the statute of limitations. Also, the body did not resume the disciplinary process against the odious “Maidan judge” Viktor Kitsyuk, which would have entailed dismissal.

On the other hand, VSP took up resonant cases. In particular, the judge of the Kuznetsovsky City Court of the Rivne region, Valery Markov, was dismissed for driving while intoxicated.

This looks especially bright against the backdrop of the complete failure of the work of the previous VSP composition. Noteworthy is the data recorded on the “Vovk tapes” (wiretapping of conversations of the head of the District Administrative Court of Kyiv) about the coordination of the actions of individual members of the Supreme Court with the judges of the OASC in the consideration of disciplinary cases. Or systemic cases where judges who made arbitrary decisions were covered up.

The Supreme Court also began to promptly consider the submissions of prosecutors regarding the detention of judges. We are talking primarily about those who are suspected of corruption and treason. Thus, with the consent of the authority, more than ten judges have already ended up in the pre-trial detention center. Among them is the notorious Vsevolod Knyazev.

Another long-awaited step took place in June 2023. Then the Supreme Court appointed a new composition of the High Qualifications Commission of Judges. 16 members of the VKKS were also selected according to the updated rules. For the first time, international experts were among the members of the Competition Committee.

As a result, the current composition of the SCJ is better than the previous one, but this is still not enough to establish the rule of law in Ukraine. The public will closely monitor the activities of the body in 2024.

Result No. 2: restart of the High Qualification Commission of Judges

In 2023, 18 people applied for each of the 16 places in the High Qualification Commission of Judges. The competition included several stages: collection of documents, information from NABU, NACP and the public, interviews with the best candidates. During this process, major scandals were avoided, but the public doubted the integrity of two members of the VKKS - Lyudmila Volkova and Vladimir Lugansky. Also in December 2023, information was received from the Foreign Intelligence Service that the current head of the VKKS, Roman Ignatov, has Russian citizenship. Ignatov himself denied this. And the VKKS stated that it would make inquiries to the relevant authorities and created a working group to verify the information.

Let us recall that the previous composition of the VKKS discredited itself. Some documents from judges' dossiers were hidden, requests for access to public information were ignored, and interviews with judges were often conducted behind closed doors. Therefore, it is not surprising that until 2019, out of almost 3 thousand judges who were checked by the commission, less than one percent were fired. And the purpose of the qualification assessment is to determine whether the current judge is suitable for the position held or whether he should be dismissed.

For example, “Maidan judge” Vladislav Devyatko was recognized as respectable and worthy. Vladimir Ponomarenko also successfully passed the assessment, and literally a few months later he was caught taking a bribe. Also, the old VKKS whitened the reputation of Oleg Glukhanchuk, who drove a car drunk and was rude to a patrolman.

To avoid such manipulations in the future, the new composition of the Higher Qualification Commission, together with the Public Integrity Council, agreed on a common list of 18 indicators for assessing judges. These include, for example, the dubious origin of property, decision-making with gross violations, arbitrary restrictions on the right to peaceful assembly, etc.

The result of the first two months of the new qualification assessment was 12 recommendations for dismissal, although not without questions to the Commission. Thus, the Higher Qualification Committee determined that the judge of the Goloseevsky District Court of Kyiv Oksana Miroshnichenko is not suitable for the position. She is a “Maidan judge” and has acquitted drivers who were driving while intoxicated. And the judge of the Pokrovsky District Court of the Dnepropetrovsk Region, Irina Edamenko, underestimated the value of the property in the declarations and “did not know” about the land plot registered in her name.

Result No. 3: restart of updating the judiciary

VKKS has not worked for almost four years. Namely, this body is responsible for the formation of the judiciary. Therefore, more than 2 thousand vacant positions have accumulated (or 25% of the total). In addition, many judges retire as the evaluation approaches, so the number of places is only growing.

The situation is worst in the appellate courts: according to Sergei Chumak, a member of the Higher Qualification Court, the share of open vacancies there has exceeded 50%. This affects the workload on judges and the speed of reviewing cases.

In September last year, competitions began in parallel for 560 positions in local courts and 550 in appellate courts. In November, they planned to increase staffing levels at the High Anti-Corruption Court, where the volume of work has increased as a result of receiving new categories of cases.

Under the Christmas tree, the Verkhovna Rada also improved the procedure for qualifying and selecting judges. During the new selection, not the Commission, but the judge himself, after a successful assessment, will choose the place of work: the more points, the higher he is in the overall ranking and has more choice. That is, the one who took first place chooses first; the second one chooses next and so on. The new law also simplified and accelerated the selection to the courts of first instance (abolished the re-examination of selected candidates, shortened the period of their training, etc.).

A norm has also appeared obliging judges from liquidated and reorganized courts to undergo qualification assessment (hello to the judges of the OASC).

Ultimately, the Commission may conduct qualification assessments without the presence of the candidate. This decision blocked the practice of judges not coming to interviews en masse because they allegedly fell ill.

There are also disadvantages: from now on, the integrity criteria are approved by the Supreme Court, in consultation with the Council of Judges. This could lead to significant manipulation by the judiciary and serious restrictions on what is considered misconduct. These and other errors will have to be corrected in new legislative initiatives in 2024.

Objective #1: Clean up the Supreme Court

After a high-profile case of bribery in the Supreme Court with the participation of its head Knyazev, it became clear that without clearing the Supreme Court, the judicial system would not be assessed positively. Let us recall that, according to law enforcement officials, in this case of a bribe worth almost $3 million, 13 more judges of the Supreme Court probably played a criminal role.

Judge for yourself whether they drew conclusions. By a majority vote - 108 out of 148 - the judges of the Supreme Court voted for the new chairman Stanislav Kravchenko, who received a negative conclusion from the Public Integrity Council.

There was nothing to expect any other result, since the selection of judges to the Supreme Court in 2017-2018 can hardly be called successful: 80% of candidates with negative findings from the OSD were accepted to the positions.

At the height of the scandal with Knyazev, both the National Security and Defense Council and the President emphasized that all judges of the Supreme Court should be checked by the Supreme Court. The deputies’ answer was three bills (No. 9454, 9643, 9643-1), which immediately sparked a discussion about whether they would do more harm than good. Be that as it may, the Verkhovna Rada is in no hurry to promptly consider them: the documents have been collecting dust for several months.

In fact, effective mechanisms for checking judges already exist. One of them is declarations of integrity that judges have been filing since 2016. It seems that the VKKS has adopted them.

In November 2023, the Commission approved a new version of the Declaration of Integrity. Lying is grounds for disciplinary action, up to and including dismissal. And there have already been such precedents. Thus, the Supreme Court of Justice caught Supreme Court Judge Olga Stupak in a lie about the origin of her property. After the recommendation of the Higher Qualification Committee, the final decision on dismissal is made by the Higher Supervisory Board. Other anti-corruption bodies, in particular the NACP, can also collect and verify information in the process of analyzing declarations.

To restore confidence in the Armed Forces, public activists propose launching a new round of inspections. This role can be played by an independent party - the Public Council of International Experts. According to DEJURE, this Council, which helped select judges of the High Anticorruption Court, has shown the best selection results so far.

Task No. 2: introduce full disciplinary liability for judges

In 2024, the VSP secretariat should have an important unit - the Service of Disciplinary Inspectors. It is the inspectors who will be the first to analyze the complaint against the judge, search for information to establish the truth and prepare a draft decision for the members of the Supreme Court.

Now the process of forming such a service is in an active phase. A commission has already been created with the participation of SCJ members and international experts; it will select inspectors on a competitive basis. Reception of documents continues. Candidates will undergo testing, integrity testing, and situational challenges.

While the SDI has not been formed, this work has been carried out by the members of the VSP themselves since November 22, 2023. In order for the reformed body to be trusted by society, it must prevent manipulations with the order of consideration and the shelving of socially important cases. The SCJ must determine whether the complaint meets the public interest test under agreed rules. To achieve this, the body decided to consider complaints not in chronological order, but taking into account new prioritization criteria.

Thus, priority is given to complaints against judges that could lead to their dismissal, as well as complaints against those judges who are undergoing qualification assessments or participating in competitions; involved in incidents that have generated significant public interest. The latter primarily concerns those involved in criminal proceedings for corruption and treason, as well as judges whose actions undermine the authority of justice (for example, driving while intoxicated).

Task No. 3: create a truly independent Supreme Administrative Court

The District Administrative Court of the city of Kyiv has become synonymous with top corruption due to its unique jurisdiction. This court heard all cases regarding government agencies that are physically located in the capital. And these are the central authorities. Therefore, the court could influence key government decisions. It was the OASC that canceled the new spelling, declared the nationalization of Privatbank illegal, reinstated Roman Nasirov and slowed down the process of renaming the UOC-MP. And the list goes on...

Ideally, the jurisdiction of the former OASC, which is now in the process of liquidation, should be divided into two different courts: 1) Kiev City District Administrative Court with cases at the local, Kyiv, level, as in other district administrative courts; 2) Higher administrative court with cases at the national level. This is the only way to eradicate the problem of hyperconcentration of power. The memorandum with the IMF already provides for a commitment “to create a new court by the end of December 2023 that will hear administrative cases against national government agencies.”

While neither the KMOAS nor the SAC have been created, all cases of the OASC are considered by the Kiev District Administrative Court (that is, an ordinary regional court). This means that corruption risks remain quite high. COAS has already been involved in high-profile stories. For example, about blocking the transparent process of certification of seafarers. They also made decisions in favor of the scandalous Bogdan Lvov, who wants to be restored to the Armed Forces staff.

Task No. 4: hold a transparent competition for the Constitutional Court

Currently, five of the 18 judicial seats in the Constitutional Court are empty. They must be filled out according to the new competitive procedure, as recommended by the European Commission in order for Ukraine to maintain its status as a candidate for accession to the EU.

Now candidates for a position in the Constitutional Court will be assessed by a new body - the Advisory Group of Experts. The DGE consists of six people: one representative each from the President, Parliament and the Council of Judges. Three more members represent international organizations that provide assistance to Ukraine in the field of reforms and the rule of law.

Some concerns have already arisen regarding the three Ukrainian members of the DGE. Thus, the Council of Judges delegated the former head of the Supreme Court of Ukraine Yaroslav Romanyuk, who supported the “dictatorial laws of January 16.” The Verkhovna Rada elected Natalya Kuznetsova, who, as noted in Automaidan, is a member of a public organization created by regional people's deputies Sergei Kivalov and Andrei Portnov. And the judge of the Sixth Administrative Court of Appeal, Vladimir Kuzmenko, appears on “Vovk’s tapes” as listening to Pavel Vovk’s advice.

One way or another, great hopes are placed on the advisory group of experts. If they choose worthy candidates, this will help create at least some balance in the Constitutional Court.

The latest appointments of judges indicate that they want to leave the Constitutional Court “tame.” In particular, the parliament appointed Olga Sovgirya, a deputy from the Servant of the People, as a judge, as well as Viktor Kichun, a friend of the former presidential representative in the Constitutional Court Fyodor Venislavsky. At the same time, the appointment of Sovgiri was blatant because it occurred contrary to Article 148 of the Constitution on the requirement of political neutrality. And the deputies decided not to stop there: In 2024, among the 29 candidates for three seats of judges of the Constitutional Court are two deputies from the Servant of the People, Alexander Kopylenko and Pavel Pavlish. Among the 16 candidates from the Council of Judges there are also dubious ones.

Cleansing-2024

2024 will be extremely important for judicial reform. It is expected that the High Council of Justice, the Service of Disciplinary Inspectors, and the High Qualifications Commission of Judges will be fully operational. And as a result, ten years after this demand was stated on the Maidan, the judiciary can finally be cleared both as a result of the consideration of disciplinary complaints against judges and in the process of qualification assessment.

First of all, society expects justice for those who have become a symbol of disregard for judicial ethics. These are judges of the OASC, and the Pechersky District Court of Kyiv, and agents of the Russian Federation in the Supreme Court, and in general all those who cannot explain the origin of their millions of dollars and politically motivated decisions.

Ukraine may not have another such chance to restart the judicial system. Therefore, judicial authorities, deputies and civil society must work in such a way that at the beginning of 2025 they will not be ashamed of this work either in front of Western partners or in front of themselves.