President Petro Poroshenko called them a threat to Ukraine’s sovereignty, while civil society said they were a new hope for judicial reform.
But what are the actual results of the international experts’ involvement in the High Anti-Corruption Court competition, and how will it affect judicial reform in general?
On Jan. 28, the Public Council of International Experts (PCIE) held its last special joint meeting with the High Qualification Commission of Judges. After two weeks of interviews, 42 out of 49 dubious candidates (or 86 percent) were banned from the competition for places on the High Anti-Corruption Court – a percentage that judicial competitions in modern Ukraine have never seen before.
Serhiy Kozyakov, the head of the commission, said on Jan. 28 this was a joint achievement of the commission and the expert council. Kozyakov assured journalists that the commission had taken the same approach as PCIE members. But did it? We do not know how the commission members voted in the deliberation room during the competition, but we do know that they ignored negative information about candidates during the Supreme Court competition in 2017. In that case, the commission overruled negative opinions of the Public Integrity Council regarding two-thirds of the blacklisted candidates, 30 of which later became judges of the Supreme Court.
A year ago, Judge Olha Stupak, who lives in a house worth millions of hryvnias, explained to the High Qualification Commission that the house was bought by her mother-in-law. The woman allegedly earned money selling fruit at a street market. That explanation sufficed – Stupak successfully became a judge of the Supreme Court. Later, however, the National Anti-Corruption Bureau of Ukraine started a criminal investigation based on this fact and other unexplained assets of the judge.
This year, a candidate for the High Anti-Corruption Court, Judge Yevhen Martynov, could not explain how another person, a pensioner, earned enough money to buy the apartment that the judge uses, but fails to declare. The PCIE expressed a reasonable doubt about the integrity of the candidate, and later on, he was banned from the competition.
Oleksandr Zolotnikov, who at the time of Revolution of Dignity prohibited peaceful gatherings in the entire central part of Odesa, is now a judge of the Cassation Administrative Court within the Supreme Court. The other judges who banned peaceful assemblies or prosecuted protesters during the Revolution of Dignity were as easily greenlighted by the commission.
However, with the assistance of the PCIE, the commission managed to ban Judge Oksana Holub, who illegally deprived an activist of their driver’s license because they took part in a car rally in front of former President Viktor Yanukovych’s house. The explanation that she did not remember the decision did not suffice.
Members of the High Qualification Commission have been saying over the past two years that an enormous mismatch in assets, violations of human rights and providing false information in declarations are not enough to exclude a candidate from the competition unless they are convicted by a court or found guilty otherwise. The High Council of Justice backed this position while ignoring the provision of the Law on the Judiciary and Status of Judges,” according to which a reasonable doubt is enough, and any information about a candidate that can undermine confidence in the judiciary is enough to reject the appointment of the candidate.
The PCIE managed to convince the Ukrainian institution to follow Ukrainian law, and that a competition for judicial jobs is not equal to criminal prosecution, so the presumption of innocence does not apply. A reasonable doubt is enough, and it is an obligation of the candidate to refute it.
So, the PCIE did not only bar untrustworthy judges from the competition, but also set the standard of proof for the integrity and proficiency of candidates.
Now it will be harder for the commission to turn back to the point when they could say “there was no final decision of any state body regarding this fact”. And it will be even harder to explain why this principle should not be used in other competitions – like the ongoing second round of the competition for the Supreme Court, which will hear final appeals in top corruption cases.
The PCIE also set a great example with its interviewing tactics. The questions of the High Qualification Commission of Judges were not just soft or irrelevant, they sometimes even provided hints or full answers to candidates, something that can be seen as an openly favorable approach. While members of the High Qualification Commission provided answers to their questions for the candidates, the PCIE skillfully cornered contestants with their questions and highlighted gaps or inconsistencies in their responses. Their tactics of interviewing candidates is a good example and something that can be followed by the Public Integrity Council, and hopefully, in the far future, by the High Qualification Commission.
What we can say for sure is that interviews with dubious candidates and their results gave some hope and increased trust in the process.
This competition did not attract many top-level lawyers or representatives of academia.
Some connected it with the fact that the Supreme Court competition in 2017 was not so successful for them. Many lawyers were kicked out of the competition due to invented, formal reasons. The good ones who got through the formal checks and exams were left to work in a minority with judges of the old and corrupt system. However, after the High Anti-Corruption Court competition, we might expect more independent candidates to apply for such judicial competitions in the future, provided the level and the objectiveness of these competitions are kept high enough.
However, this seems unlikely, unless the role of international experts in the renewal of the judiciary is sustained or even increased.
Last year’s polls show that when it comes to the renewal of the judiciary, Western experts are supported much more than the judiciary’s governing bodies – by almost 30 percent of the respondents, as opposed to 8 percent, and are outdone only by representatives of civil society, who enjoy the most support – 47 percent.
Similar answers were given to the question on who can be trusted with the selection of anti-corruption court judges. In 2018, 47 percent entrusted the formation of the anti-corruption court to representatives of anti-corruption NGOs, and 38 percent to Western experts.
At this point, experts agree that the quality of the judiciary cannot be improved without effective and trustworthy judicial governance. To ensure that, we must change the composition of the judicial governance bodies tasked with the selection and disciplining of judges (namely the HQCJ and the High Council of Justice) and include international experts and representatives of civil society in them directly.
Iryna Shyba is head of projects at the DEJURE Foundation, a legal think tank.
