On June 23, the Ethics Council announced the results of a competition for two vacancies in the High Council of Justice under the quota of the Verkhovna Rada, however, the first announced results raise serious questions about the effectiveness of judicial reform. The text of the decisions, despite the promise of the Ethics Council to publish them within 24 hours, is still missing.
The Ethics Council recommended that four candidates be nominated - Vyacheslav Talko, Olena Zaichko, Mykola Moroz and Roman Maselko. According to an analysis by the Anti-Corruption Action Center, the DEJURE Foundation and Automaidan, which have advocated genuine judicial reform for years, two of these candidates, Vyacheslav Talko and Olena Zaichko, cannot be considered decent.
Vyacheslav Talko previously worked as an inspector in the High Council of Justice with those members to whom the head of the DACK Pavlo Vovk gave instructions on the harassment of judges. His expenses are dozens of times higher than his income, and he is obviously connected with the "Sluha Narodu" party. Judge Olena Zaichko was involved in the carve-up of tens of hectares of land in Kharkiv. Moreover, her NGO openly opposed the reform of the High Council of Justice with the involvement of international experts, echoing the Kremlin's narratives of "external governance".
As the Ethics Council closed access to interviews with candidates for the High Council of Justice, despite the high public interest and the importance of transparency in the process, the danger of which was repeatedly emphasised by NGOs, we, as well as Ukrainian society as a whole, cannot assess whether Vyacheslav Talko and Olena Zaichko refuted doubts about their integrity. The decisions of the Ethics Council regarding the HCJ members Oksana Blazhivska, Inna Plakhtiy and Vitaliy Salikhov are also doubtful. They successfully passed the interviews behind closed doors, despite a significant number of facts that called their integrity into question.
Against this background, the Ethics Council did not recommend Larysa Holnyk, a judge-whistleblower, to be appointed. In 2015, judge Holnyk not only refused to make a decision in favour of Poltava Mayor Oleksandr Mamay for a bribe, but also filed a criminal complaint, documented it, obtained a prison sentence for a mediator, and is still fighting for Mamay's punishment. After that, she became the object of persecution and harassment by the head of the court Strukov and the judicial system for years. In 2017, Judge Golnyk was physically assaulted. She did not surrender, but continued to fight, publicly exposing shameful phenomena in the judiciary and fighting for whistleblowers' rights and judicial reform. For many Ukrainians, she has become a symbol of honesty, steadfastness and rejection of any manifestations of corruption, and has received great support and recognition, including from outside Ukraine.
To prevent the participation of judge Holnyk in the competition for the High Anti-Corruption Court, the then-High Council of Justice, with the active participation of Pavlo Hrechkivsky, punished Holnyk for a Facebook post. In the post, she gave an emotional but truthful assessment of the behaviour of judges who submissively supported Strukov's corrupt behaviour. In January 2019, the Supreme Court overturned the decision of the High Council of Justice. However, it appears from the interview that this episode was the reason for the negative decision of the Ethics Council regarding Judge Holnyk. That is, the judge was punished for the truth.
We consider such a decision of the Ethics Council to be deeply erroneous and one that kills the credibility of the process and the result of the work of the Ethics Council. It also significantly demotivates those who publicly fight corruption in the courts and encourages to be silent about it.
The decisions of the Ethics Council lead us to believe that the standards of integrity check that it applies are clearly different from the standards established in Ukraine and applied by our organizations. To conduct integrity checks, our analysts use the methodology of the Public Integrity Council, based on the Bangalore Principles of Judicial Conduct and the practice of conducting judges' qualifications. Instead, we must state that so far the decisions of the Ethics Council are more similar to the decisions of the High Council of Justice and the High Qualification Commission of Judges in recent years when candidates of low integrity received the "green light" and decent ones were disqualified. The Ethics Council, in turn, was established with the aim of qualitatively renewing these bodies and applying higher standards and common sense than existed in their practice. In the conditions of closed meetings of the Ethics Council and due to the lack of any communication with the society about the motives for making such decisions, the Ethics Council jeopardises the credibility of the results of the reform.
Today there are more than 2,500 vacancies in the judicial system of Ukraine. The judiciary announces the desire of several hundred more judges to resign as soon as the HCJ starts working. Based on this, it is this composition of the High Council of Justice, which the Ethics Council is currently forming and the High Qualification Commission of Judges created by it, that is responsible for appointing about half of the entire judiciary in Ukraine, which will determine the state of the judiciary and the rule of law in Ukraine for generations to come.
At the same time, Ukraine has just won candidate status for accession to the European Union, a key condition for which is progress in the rule of law, including the successful reform of the High Council of Justice and the High Qualifications Commission of Judges.
Thus, provided that the current trends in the competition for the High Council of Justice are preserved, we can get unpredictable, if not catastrophic, consequences not only for the results of judicial reform but also for Ukraine's European integration prospects and its existence as a capable state.
To prevent the catastrophe of judicial reform, a number of fundamental things in the work of the Ethics Council need immediate rethinking.
Anti-Corruption Action Centre