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The draft law by the attorney of judge Tsarevych - are the scandalous "five-year judges" returning?

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On August 4, the High Council of Justice reported that the Parliamentary Legal Committee finalised the draft law on restoring the powers of the so-called "five-year judges". And today, on August 26, it was registered in the Verkhovna Rada (№ 7698).

Who are "five-year judges"?

Until September 2016, under the old version of the Constitution and the law "On the Judiciary and the Status of Judges", judges were first appointed for five years, and only after this term the Verkhovna Rada reappointed them once again for a lifetime. This procedure contributed to the political dependence of judges because each newly appointed judge remembered that he must be appointed again after five years. To solve this and other problems of political "loyalty" of judges, the Venice Commission advised to exclude political bodies from the appointment of judges and apply an exceptional measure - re-attestation of all judges. Thus, in 2016, the qualification assessment of judges began. The judges, who were appointed for a five-year term, could not continue to administer justice until they pass the qualification assessment.

However, evaluating 8,000 judges is not an easy task. The High Qualification Commission showed selectivity in its decisions, therefore, in 2019, it was dissolved by law, and a new procedure for its formation was introduced. Accordingly, many "five-year judges" were stuck in limbo - their term of office has expired, but it was impossible to re-appoint them without passing the assessment. They continue to receive salaries, although they do not administer justice.

Also, a certain number of "five-year judges" took part in the assessment and received a negative opinion from the HQCJ. Therefore, they are of low integrity and cannot hold the position of a judge, but they were not dismissed by the HCJ.

In total, there are about 280 "five-year judges". Here are just a few of them:

Oksana Tsarevych - a former judge of the Pechersky District Court of Kyiv. She took part in the consideration of the cases of Yulia Tymoshenko, Yury Lutsenko, Oleksandr Yefremov, Anatoliy Makarenko and others. Tsarevych considered the cases of Euromaidan activists, her court decisions were based solely on traffic police protocols, which, as the investigation established, were falsified. In September 2016, Tsarevych was dismissed by a decree of President Poroshenko. In the same year, the High Administrative Court overturned the decision of the HQCJ, based on which she was dismissed, and Tsarevych returned to her position. 

Yulia Ablova - the wife of Yevheniy Ablov, a henchman of Pavlo Vovk, a judge of the Comintern District Court of the Odesa region. After the qualification assessment began, she declared two apartments in Kyiv of 140 square meters, a Porsche Panamera car, a high-speed boat and UAH 1.5 million as a cash gift from her mother. All this with only 26 thousand UAH of annual income.

Yevhen Bashmakov - judge of the Zhovtnevyi District Court of Dnipro. During his 5 years as a judge (from 2009 to 2014), the courts of higher instances overturned 94 of his decisions, which is more than half (!) of his total number of decisions. This fact alone calls into question his professionalism. There were also many questions regarding his declaration.

What does the new draft law suggest?

The text of the draft law has not yet been published. However, certain conclusions can be drawn from the video recording of the meeting of the working group on ensuring adequate funding of the judiciary under the Parliamentary Legal Committee. In particular, MP Serhiy Demchenko suggests giving the green light to judges who received a negative opinion from the HQCJ: "We are appointing them now with a negative opinion of the HQCJ but which has not come into effect according to the decision of the HCJ" (timecode 1:35:37 — 1:37:43 https://cutt.ly/kXDxqUo).

The HCJ member Inna Plahtiy suggests that the HCJ should consider this issue and believes that "more than 90%, maybe even 99% of five-year judges will pass".

Also, members of the working group suggested that judges who did not pass the qualification assessment should continue it from the point where they stopped. It is not known how it is possible to organise this procedure, given that a completely new HQCJ is currently being formed.

These proposals are argued by the fact that the judicial system is allegedly overloaded, and there is a catastrophic shortage of judges. Although, according to the judges themselves, in connection with the war, the workload on them decreased a lot.

Who is behind these proposals?

Serhii Demchenko is not just a member of the Verkhovna Rada. In 2015, as an attorney, he defended judge Oksana Tsarevych, who was persecuting Automaidan activists during the Revolution of Dignity.

Inna Plakhtiy is a former judge of the Lutsk City District Court of the Volyn Region, whose declaration and court decisions raise many questions. She may be involved in bribery, but the decision of the Prosecutor General's Office to search her apartment was never implemented.

Conclusions

The competition for the HQCJ is now underway, the immediate task of which should be the completion of the qualification assessment. The deadline for submitting documents has already passed, so the selection by the Selection Commission will begin shortly. Within six months, the High Qualification Commission of Judges will be formed, which will deal with the cleansing of the judiciary. Why adopt the draft law on five-year judges now, given that the new HQCJ can complete their assessment in six months? Obviously, to bypass the assessment process and have time to appoint politically dependent judges of low integrity.