Will Ukraine’s New Supreme Court Be Any Different?

Every successful reform needs the right legal framework, the right institutions, and the right people.

Take NABU—Ukraine’s newly established National Anticorruption Bureau. This spring it managed to arrest the notorious head of the State Fiscal Service Roman Nasirov, and one of the country’s top political moguls Mykola Martynenko—a task no other law enforcement body would dare contemplate.

The reason? It had the right legal framework, the right institutions, and the right people chosen through an objective and competitive selection process.

Created from scratch, the country’s overhauled patrol police with 94 percent new staff was an inspiration for judicial reform as well.

But while Ukraine’s judicial legislation has changed and institutions are being built, selecting the right people still remains the greatest challenge to reform in Ukraine today.

In November 2016, the competition for the new Supreme Court was launched. Candidates must have at least ten years’ experience, and undergo a two-part written exam and interview.

The process was organized by the High Qualification Commission of Judges (HQCJ)—a judicial council comprised mostly of judges elected by judges. This format is arguably the best in a transitional democracy struggling to change its judges, but Ukraine had to adopt it as a Council of Europe member.

Competition was strong: 846 candidates applied for 120 positions (Ukraine needs a larger Supreme Court than others, due to a high number of cassation cases), of which 520 passed the written test.

The exam was problematic. A statistical analysis of the results shows that scores were likely manipulated.

Consequently, Ukrainian NGOs have repeatedly called on the HQCJ to explain the results and disclose the contents of the exam, but have been denied an explanation.

The final step is an interview, which is the most important stage of the selection process. Candidates have to answer questions concerning the origin of their property, their professional activities, and so on. 

A number of candidates whose professional integrity raises doubts have advanced to this stage.

Interviews started on April 21 and are coming to a close, and they have been broadcast online.

Online broadcasting is not the only first in the process. Building a new Supreme Court from scratch is a bold move in itself, but some of the measures Ukraine has taken are unprecedented even in the world.

To combat a low level of trust in the judiciary, Ukraine decided to outsource integrity checks for judges to a civic body. The Public Integrity Council (PIC) consisting of lawyers, scholars, and journalists not only undertakes its own independent assessment of the integrity and professional ethics of candidates, but also has some real power in the process.

The PIC can issue a negative opinion regarding a candidate based on open sources—their judicial dossier, numerous open state registries, and journalists’ investigations. Candidates who receive a negative PIC opinion can only be recommended by a two-thirds vote at the HQCJ’s plenary session, which begins on June 6.

Right now, there’s real concern that PIC opinions are being overlooked. The Public Integrity Council has already ruled that 142 of the 382 candidates interviewed do not meet the minimum ethical and integrity standards.

At the same time, the HQCJ only agreed with twenty-seven negative opinions, dismissing such candidates, and neglecting the other 82 percent.

The HQCJ’s decision to move forward with these flawed candidates is considered outrageous by many. In twenty-three cases, PIC can point to judgements from the European Court of Human Rights showing that a particular candidate violated human rights, while twenty candidates provided false statements in integrity declarations. At least forty-four candidates possess expensive property and they cannot explain how they obtained it.

The candidates who receive the most deferential treatment by the HQCJ are the chairman of the Supreme Court, the current Head of the Council of Judges, as well as the current chairpersons of the lower courts—all infamous for their political dependence. In a criminal investigation, NABU recently searched the office and home of one judge in the District Administrative Court of Kyiv and found he was living in an undeclared house, several days after he successfully underwent the interview. These candidates will likely make the final cut, which means the new Supreme Court won’t be much better than the old one, and public trust in judicial reform will likely be lost.

The plenary vote will be held in secret, and the candidates will not be rated before it. Final decisions will be held behind closed doors.

This lack of transparency bears huge risks. Secret voting at the end of the process will inevitably lead to the appointment of candidates who do not meet basic ethical and professional standards and undermine the whole idea of the renewal of Ukraine’s highest court.

That being said, there’s still a chance to save the process.

Reanimation Package of Reforms, the biggest coalition of civil society organizations in Ukraine, thinks the following three steps might dramatically increase the objectiveness of the proceedings and turn the process around:

  1. Publish the scoring methodology before the special plenary of the High Qualification Commission of Judges;
  2. Have the HQCJ reveal the voting of each commission member at the plenary;
  3. Rate the candidates before the plenary.

On May 30, PIC issued similar recommendations.

Preventing notorious candidates who are the symbols of corruption and lawlessness from entering the highest positions in Ukraine’s new judicial system is absolutely necessary to the country’s reform project and future.

Transparency is the only way to go.

Mykhailo Zhernakov is the director of the DeJuRe Foundation, a member of the board of the Reanimation Package of Reforms, and a former judge in the Vinnytsia District Administrative Court (2012-2015). Editor’s note: He is a member of the Public Integrity Council. PIC rulings are available here (in Ukrainian), and the videos of the interviews are available at HQCJ YouTube channel (in Ukrainian).

Image: Yaroslav Romanyuk was appointed president of the Supreme Court shortly before the Euromaidan began. He is remembered for his defense of Yanukovych’s 2014 “dictatorship laws,” which were aimed at crushing the Maidan protests and imprisoning large numbers of activists. He is still a candidate for Ukraine’s new Supreme Court. Credit: Andriy Dubchak/RadioSvoboda.org RFE/RL