Five questions for the new HQCJ regarding the qualification assessment of judges

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On June 1, 2023, an almost 4-year epic story ended with the appointment of the new composition of the High Qualification Commission of Judges (HQCJ) — a kind of HR agency of the judicial system. You can read about it in more detail in this material.

One of the primary responsibilities assigned to the newly formed HQCJ is the thorough qualification assessment of nearly 2,000 judges to ascertain their appropriateness for their respective roles. It is crucial to highlight that, in accordance with the law, individuals who do not successfully undergo these procedures face dismissal.

In November 2023, the HQCJ initiated the qualification assessment process. Since then, over 100 interviews have been held, and as of January 10, 2024, 52 decisions on judges' suitability for their positions have been issued. This provides enough material for drawing initial conclusions about the new HQCJ's performance. Unfortunately, this publication will address the first serious questions about the quality of its work. However, before diving into those questions, let's start with a brief digression.

DEJURE Foundation recognises that the new HQCJ's efforts represent a significant advancement compared to the qualification assessment of judges conducted under the previous HQCJ composition (additional details available here). Notable accomplishments of the current HQCJ include establishing a well-structured qualification assessment timetable in collaboration with the Public Integrity Council (PIC), jointly defining indicators highlighting judges' low integrity with the PIC, and implementing regulatory changes facilitating seamless cooperation between the two bodies.

Nonetheless, we find ourselves posing questions, as it is our duty as reform watchdogs. By scrutinising specific decisions, approaches, and motivations of the HQCJ, our aim is to stimulate improvements in the quality of its work. We anticipate that the HQCJ will receive constructive criticism with openness, understanding that it can play a vital role in rectifying the identified negative trends.

I. The HQCJ neglects the criteria for a judge's non-compliance with the integrity and professional ethics indicators, previously established in agreement with the PIC before the initiation of the qualification assessment, and fails to provide any explanation for this omission

As per clause 2 of the List of Common Indicators agreed upon by the HQCJ and PIC, the act of "receiving liquid property as a gift, for free use, or at a significant discount" is identified as an instance of behaviour indicative of low integrity.

The HQCJ's approach has been evident in its apparent lack of concern regarding judges residing in properties under verbal agreements with non-relatives conditioned upon covering utility expenses. The HQCJ does not acknowledge such arrangements as constituting a gift within the scope of the "Law on Corruption Prevention". Notably, the decisions related to judges Shynkarenko and Bielkina, among others, lack rationale for this stance. The argument asserting that providing accommodation for free use should be considered a gift under anti-corruption legislation was similarly disregarded in the case of Judge Atamanova, both in the panel's decision and the HQCJ's plenary decision.

To maintain objectivity, it's worth noting that in judge Atamanova's case, the HQCJ did provide motivation for siding with the judge. However, this doesn't negate the fact that the HQCJ overlooked indicators of potential anti-corruption law violations highlighted by the PIC. This, by the way, contradicts also judicial practice. This contradiction is evident when comparing it to a case such as the decision by the Pechersk District Court of Kyiv on December 26, 2023, in case 757/50993/23-p. In that instance, the utilisation of the ex-President of the Supreme Court Vsevolod Knyazev's apartment at a significantly reduced price was recognised as a gift under anti-corruption legislation.

The HQCJ's treatment of clause 4 from the Common Indicators provides another instance of its apparent disregard for agreed-upon criteria. This clause stipulates that a judge's actions, decisions, or inaction should not be influenced by political motives, corporate solidarity, manipulation of circumstances or legislation, or any personal interests such as economic gain, corruption, or other individual motives in making or not making a specific decision.

An illustrative case highlighting the HQCJ's approach is its decision concerning judge Kapitonov. The PIC brought to light the judge's involvement in acquitting the head of the Supreme Court of the so-called "DPR" on charges related to participating in a terrorist organisation. Subsequently, this decision was overturned in the appellate court and affirmed by the Supreme Court. In its review, the appellate court criticised the first-instance court's evaluation of evidence as "biased and one-sided", using several unfavourable terms.

Despite the stance taken by higher courts and their critical assessment, the HQCJ declined to assess the court decision, contending that it lacked the authority to do so. The rationale behind the HQCJ's refusal to evaluate the judge's actions in a case deemed biased and one-sided by higher courts remains unclear. This raises questions about the HQCJ's introduction of clause 4 as a common indicator of low integrity if it does not see itself empowered to assess a judge's actions during the adoption of a high-profile decision, which has already been evaluated by higher courts.

II. The HQCJ tolerates the massive negative practice of judicial delay in cases of drunk driving, giving the opportunity to avoid punishment

In a substantial portion of its opinions, the PIC highlighted to the HQCJ that judges permit court delays and render irresponsible decisions in cases involving drivers driving under the influence. These actions contribute to highly negative outcomes. We previously addressed a case where a mother died under the wheels of a garbage truck in Kyiv, and a child suffered serious injuries due to a repeat offender of drunk driving who retained the right to drive. Notably, there are significant corruption risks associated with such cases, leading to criminal charges against numerous judges for accepting bribes in connection with these matters.

Typically, PIC opinions point to numerous cases where judges fail to render decisions within the legally mandated time frame, resulting in the closure of cases due to the expiration of the statute of limitations. The PIC emphasises that judges frequently issue decisions shortly after the expiration of the statutory period. However, in all published decisions by the HQCJ, it consistently finds reasons to excuse the judges involved. Even when acknowledging specific violations, as seen in the decisions concerning judges Lunyova, Hutsol, and Lytvynyuk, it never deems these grounds sufficient to declare a judge unsuitable for their position.

The HQCJ often adopts a generalised approach, accepting judges' explanations that there are common reasons for not adhering to deadlines. Such generalisations create an illusion of motivation in each individual case, leading to the impression that the HQCJ does not perceive delays as problematic. From this, we can draw the only conclusion that the HQCJ does not see a problem in such delays, which leads to the avoidance of responsibility by drunk drivers.

III. The new HQCJ refrains from disclosing the rationales behind its decisions recommending the dismissal of judges due to low integrity

Over the course of two months of qualification assessment, the HQCJ reached 10 decisions deeming judges unsuitable for their positions. However, none of these decisions have been made public. Consequently, the general audience, including the PIC, is denied access to the information necessary for understanding the specific violations that the HQCJ deems grounds for dismissal. This lack of transparency also precludes any assessment of the consistency in the HQCJ's approaches to such cases.

IV. In a significant part of the decisions, the HQCJ does not set out any reasons for overturning the opinions of the Public Integrity Council

Some decisions made by HQCJ panels lack explicit reasons for overturning the opinions of the PIC. These decisions typically follow a pattern: 1) a presentation of the PIC's stance, 2) a brief overview of the judge's explanations, and 3) an assessment by the HQCJ. Consequently, the HQCJ refrains from providing its independent evaluations of the circumstances highlighted by the PIC and the explanations offered by the judge, as evidenced in the decision concerning judge Honcharenko.

There are instances where the HQCJ dismisses the PIC's assertions of violations as "unconfirmed" without providing a rationale for this assessment. A notable example is the decision arising from the qualification assessment of judge Radutska. The PIC contended that judge Radutska was implicated in the unlawful persecution of participants in peaceful assemblies during the events of the Revolution of Dignity, which she omitted from her integrity declaration. The PIC also expressed a number of other claims, which the HQCJ recounted in detail in its decision. However, the HQCJ responded to these concerns with just one sentence.

Therefore, it is unclear why so much money and time was spent on the formation of the new HQCJ if it allows such a limited level of explanation. For the sake of objectivity, it's important to acknowledge that this issue is not common across all HQCJ panels. Nonetheless, the emergence of such a trend raises concerns and casts a shadow over the overall functioning of the body, potentially affecting those panels that are performing their duties diligently.

V. In some cases, the HQCJ makes a decision abusing generalisations, which makes it impossible to understand its position regarding certain violations

An example of such a detrimental practice is the decision of one of the HQCJ’s panels on judge Molodetsky. In this case, the PIC presented the HQCJ with an opinion comprising several points and additional information that could potentially impact the evaluation of the judge's adherence to integrity and professional ethics criteria. The HQCJ acknowledged these circumstances as "affecting the assessment of the judge's compliance with the criteria of professional ethics and integrity and are taken into account when assessing indicators of professional ethics and integrity". However, the decision fails to provide clarity on precisely which information the HQCJ considered relevant, given that the PIC's opinion contains two points of conclusion and two points of additional information.

Thus, there are notable deficiencies in the operations of the new HQCJ. It is our sincere hope that the body addresses these issues promptly, as they extend beyond individual instances of judge assessments and have broader implications for the overall success of judicial reform.