This article was originally published in Ukrainian in Ukrainska Pravda.
On January 11-12, the Сongress of judges took place in Kyiv. It selected eight new members of the High Council of Justice. The worst-case scenario, in which the selection of members of the HCJ would have failed and which we wrote about in December, did not happen: judges managed to fill all vacant positions under their quota and unblocked the work of the body.
The High Council of Justice, the key judicial governance body, has not been functioning since the beginning of the full-scale Russian invasion. Most of its members voluntarily resigned, unwilling to be vetted within the judicial reform launched in late 2021. Thus, the cleansing of the body happened even faster and more efficiently than initially planned.
Today, the HCJ consists of 15 members out of 21. Four more members will be appointed in spring under the quota of the Conference of Prosecutors, Congress of Legal Scholars, and the President. However, the judicial majority in the HCJ has already been formed, allowing us to assess the interim results of the reform and document expectations of society from the work of the renewed composition of the High Council of Justice.
The new old HCJ
In 2022, the composition of the HCJ was renewed by 80%. Except for the President of the Supreme Court, Vsevolod Knyazev, who is a member of the body ex officio, only three members were selected/appointed before the judicial reform.
We saw a similar restart immediately after the Revolution of Dignity. Unfortunately, at that time, the reform was rather about changing names and demonstrative renaming of the High Council of Judiciary to the High Council of Justice, as if that was enough to stop the politically dependent body from acting according to instructions and cover up judges of low integrity.
The reform, which started in 2021, focused on selecting independent and honest professionals for the HCJ. Has this been achieved?
This time, the Ethics Council, the independent body consisting of three Ukrainian judges and three international experts, played a key role in selecting future members of the HCJ.
Interviews with candidates were probably the most important stage of the selection process. Unfortunately, with the beginning of the war, the Ethics Council decided to stop broadcasting interviews, depriving the public and journalists of the only opportunity to follow the process. Therefore, we do not know whether arguments about the integrity of individual candidates were raised there or whether candidates refuted them. We also see no justification in the decisions of the Ethics Council on recommended candidates, so we do not understand what guided its members.
For the first time in the history of all previous selections, most of the questionable candidates did not reach the final stage. They were either not recommended by the Ethics Council or withdrew themselves, fearing the negative decision. This would not have been possible without the participation of international experts in the process and their casting vote.
At the same time, the decision of the Ethics Council regarding whistleblower judge Larysa Holnyk, who was recognised as “not meeting the criteria of integrity and professional ethics”, came as an unpleasant surprise. This decision showed that the main advantage of involved international experts, namely their non-involvement in the local context, turned out to be their main disadvantage.
In 2015, judge Holnyk not only refused to make the decision in favour of Poltava Mayor Oleksandr Mamay for the bribe but also filed a complaint about the crime, documented it, and achieved the prison sentence for the intermediary. And she is still fighting for Mamay’s punishment.
After that, she became the object of harassment and persecution by the head of the court, Strukov, and the judicial system for years. In 2017, judge Holnyk was physically attacked. She did not give up but continued to fight. She publicly exposed shameful phenomena in the judicial system and fought for whistleblower rights and judicial reform.
At the same time, this is perhaps the first time the reform has given independent experts from outside the system a real chance.
However, it is still too early to make final conclusions about whether the High Council of Justice has been reformed. Future decisions of the body will show this. After all, Ukraine is conducting the reform precisely to change its practice, not its faces.
We, Automaidan, DEJURE Foundation and Anti-Corruption Action Center, have defined the following key criteria for assessing the success of the reform:
1. Agents of change in the High Qualification Commission of Judges
Probably the most important decision of the new HCJ is the appointment of a new composition of the High Qualification Commission of Judges. The latter has to select 2.500-3.000 new judges to fill positions that are already vacant or will become vacant in the near future.
Whether the judicial system will change forever or, on the contrary, be preserved for decades will depend on who will be appointed to the High Qualification Commission of Judges.
The competition is now underway. And the Selection Commission will propose 32 candidates (or fewer if there are not enough decent candidates) for 16 vacant positions to the HCJ.
The HCJ should propose clear and transparent criteria for the selection of members of the HQCJ and appoint the best ones whose integrity is beyond doubt and who are real agents of change.
If the selection process is non-transparent and unclear to the public, and if 32 finalists are primarily supporters of the status quo, it will be a powerful signal that the HCJ is satisfied with the current state of affairs in the judicial system and is not going to change anything.
2. Tell me who your friend is, and I will tell you who you are
The previous composition of the HCJ labelled the public, which fights against corruption in the judiciary and protects independent judges, as enemies and simply ignored the Public Integrity Council.
This is understandable: the body that unanimously votes against even temporary suspension of the DACK judges for the duration of the investigation regarding “Vovk’s tapes”, turns a blind eye to obvious violations by judges and persecutes whistleblower judges could not do otherwise.
If the new composition of the HCJ has different goals, this policy should also change.
It is obvious that NGOs, journalists and other concerned citizens are not enemies of the judiciary. Moreover, it is they who work to ensure that judges are as independent, capable and able to resist illegal influences as possible. For any state institution that pursues the same goals, the public is the natural ally.
Therefore, the new HCJ should be as open as possible both to cooperation with representatives of civil society and to constructive criticism from them, which helps the new body to become better.
3. The DACK judges and other villains are a litmus test for new HCJ
The scandalous Kyiv District Administrative Court was liquidated last December. However, judges Vovk, Ablov, Sanin, Pohribnichenko, Kachur and others still remain in the system, continue to receive their salaries and cherish the hope of returning to power.
It is up to the new HCJ to put an end to their inglorious career.
Covering up the DACK judges was one of the main reasons for the restart of the HCJ. In the past, the body failed even to suspend judges from work while the criminal case was being investigated, and consideration of disciplinary complaints against judges was delayed in every possible way to avoid serious sanctions.
Therefore, the HCJ should demonstrate its principled approach and be one of the first to consider the issue regarding the DACK judges.
All facts of the misconduct of judges recorded on the NABU’s tape recordings should be assessed by members of the HCJ regardless of the result of the criminal proceeding so that the judicial community understands that such behaviour is unacceptable and will be unconditionally punished in future.
We are sure that judges will try to avoid punishment by stating that the deadline for bringing them to justice has passed. However, the law states that the deadline is suspended from the moment the complaint is filed to the HCJ, regardless of whether it had the right to consider it. Therefore, deadlines have not expired, and the HCJ has the opportunity to assess the actions of Vovk and his minions properly.
The case of the judge of the Supreme Court, Olha Stupak, will also be the test for the new HCJ. She became the judge of the Supreme Court through outright lies about the sources of her purchase of a luxury BMW X5 and 380 sq. m. house near Kyiv, which her mother-in-law allegedly had bought.
Despite these facts, the HQCJ and the HCJ recommended Stupak to the Supreme Court at first. After her appointment, the HCJ continued to cover up the judge in disciplinary proceedings.
Calling the lie by its name and punishing the judge is an affair of honour for the new HCJ and its head Hryhoriy Usyk, who has worked with Stupak in the same court in recent years.
It is also essential to hear the HCJ’s position regarding Maidan judges.
On the eve of the ninth anniversary of the Maidan shootings, we still have nothing to say to families of fallen heroes waiting for justice. Judges who banned peaceful assemblies punished Automaidan activists for trips to Mezhyhirya, and imprisoned protesters were granted indulgence by previous HCJ.
Test regarding values of the new composition will be their position regarding the role of judges in attempts to suppress protests and persecute activists. And the absence of a position is also the position.
Finally, the HCJ should start fighting against judicial schemes, such as covering up for drunk drivers, manipulating the automatic distribution of cases, rewriting decisions by correcting typos, usurping the positions of court heads, etc.
4. Real transparency, not declarative
The trust in the High Council of Justice and its decisions will largely depend on how openly and transparently the body operates. In the past, the HCJ used to broadcast all its meetings online but closed them in 2019.
Concealment of individual voting results was the standard practice. With the outbreak of the war, the situation became even worse, as the HCJ closed access to all its acts, even those that were publicly available until February 24.
We do not understand how closing access to decisions of the HCJ helps to fight the enemy. Still, we are well aware that it is very convenient to hide low-quality and unmotivated decisions under the guise of national security. It is just as convenient to hide behind collective irresponsibility by concealing voting results for each decision.
The slightest hint of non-transparency will bury any trust in the new HCJ and its decisions, even if they are legal and fair.
Therefore, we expect that the HCJ will ensure real, not declarative, openness in its work, which will be manifested in restoring access to all decisions and acts of the body, ensuring openness and broadcasting of all meetings, and holding open votes with the publication of individual results.
5. New quality of disciplinary proceedings
Consideration of disciplinary complaints and bringing judges to justice is perhaps the most important and time-consuming task of the HCJ. Today, this function is not fulfilled: the reform envisages the creation of an independent service of disciplinary inspectors in the apparatus of the HCJ, which will take over some of the work at the first stages of consideration of disciplinary complaints.
New inspectors should be selected through the competition. Until such competitions are held, the HCJ cannot consider any disciplinary cases at all.
It is crucial that honest and independent professionals are selected as disciplinary inspectors.
The competition, for which the HCJ is responsible, should be transparent, and the involvement of the Public Council of Integrity in the selection and evaluation of candidates will help to ensure confidence in results.
The HCJ should also prioritise the consideration of disciplinary complaints and make it impossible to manipulate the order of priority, and create a system that allows tracking stages of complaints from their receipt to the final decision, following the example of court cases.
Another important task that faces new HCJ is to systematise and unify disciplinary practice, which will ensure consistency, clarity and predictability of decisions in disciplinary cases.
***
Of course, other indicators are also important for assessing the HCJ: attitude towards judicial reforms, level of digitalisation, implementation of the anti-corruption program, improvement of existing procedures, and many others.
The public will be able to observe all of this in real-time and decide whether the reform has yielded real success or remained on paper.
This will directly influence decisions regarding further reforms. If renewed HCJ copes with its challenges, there will be a number of important but smaller things to be done, and the transformation of the judicial system could be considered complete.
If the work of renewed composition does not bring the desired result, other even more decisive measures will have to be taken to build a fair court in Ukraine.
There is no other way: independent and fair courts are an absolute necessity both for building a capable state and for our accession to the EU, which is the absolute priority of the people of Ukraine and its political leadership.
On January 11-12, the Сongress of judges took place in Kyiv. It selected eight new members of the High Council of Justice. The worst-case scenario, in which the selection of members of the HCJ would have failed and which we wrote about in December, did not happen: judges managed to fill all vacant positions under their quota and unblocked the work of the body.
The High Council of Justice, the key judicial governance body, has not been functioning since the beginning of the full-scale Russian invasion. Most of its members voluntarily resigned, unwilling to be vetted within the judicial reform launched in late 2021. Thus, the cleansing of the body happened even faster and more efficiently than initially planned.
Today, the HCJ consists of 15 members out of 21. Four more members will be appointed in spring under the quota of the Conference of Prosecutors, Congress of Legal Scholars, and the President. However, the judicial majority in the HCJ has already been formed, allowing us to assess the interim results of the reform and document expectations of society from the work of the renewed composition of the High Council of Justice.
The new old HCJ
In 2022, the composition of the HCJ was renewed by 80%. Except for the President of the Supreme Court, Vsevolod Knyazev, who is a member of the body ex officio, only three members were selected/appointed before the judicial reform.
We saw a similar restart immediately after the Revolution of Dignity. Unfortunately, at that time, the reform was rather about changing names and demonstrative renaming of the High Council of Judiciary to the High Council of Justice, as if that was enough to stop the politically dependent body from acting according to instructions and cover up judges of low integrity.
The reform, which started in 2021, focused on selecting independent and honest professionals for the HCJ. Has this been achieved?
This time, the Ethics Council, the independent body consisting of three Ukrainian judges and three international experts, played a key role in selecting future members of the HCJ.
Interviews with candidates were probably the most important stage of the selection process. Unfortunately, with the beginning of the war, the Ethics Council decided to stop broadcasting interviews, depriving the public and journalists of the only opportunity to follow the process. Therefore, we do not know whether arguments about the integrity of individual candidates were raised there or whether candidates refuted them. We also see no justification in the decisions of the Ethics Council on recommended candidates, so we do not understand what guided its members.
For the first time in the history of all previous selections, most of the questionable candidates did not reach the final stage. They were either not recommended by the Ethics Council or withdrew themselves, fearing the negative decision. This would not have been possible without the participation of international experts in the process and their casting vote.
At the same time, the decision of the Ethics Council regarding whistleblower judge Larysa Holnyk, who was recognised as “not meeting the criteria of integrity and professional ethics”, came as an unpleasant surprise. This decision showed that the main advantage of involved international experts, namely their non-involvement in the local context, turned out to be their main disadvantage.
In 2015, judge Holnyk not only refused to make the decision in favour of Poltava Mayor Oleksandr Mamay for the bribe but also filed a complaint about the crime, documented it, and achieved the prison sentence for the intermediary. And she is still fighting for Mamay’s punishment.
After that, she became the object of harassment and persecution by the head of the court, Strukov, and the judicial system for years. In 2017, judge Holnyk was physically attacked. She did not give up but continued to fight. She publicly exposed shameful phenomena in the judicial system and fought for whistleblower rights and judicial reform.
At the same time, this is perhaps the first time the reform has given independent experts from outside the system a real chance.
However, it is still too early to make final conclusions about whether the High Council of Justice has been reformed. Future decisions of the body will show this. After all, Ukraine is conducting the reform precisely to change its practice, not its faces.
We, Automaidan, DEJURE Foundation and Anti-Corruption Action Center, have defined the following key criteria for assessing the success of the reform:
- appointment of members of the HQCJ;
- cooperation with the public;
- decision on judges of the DACK and position on judges of Maidan;
- openness and transparency of work and decision-making;
- standardisation of disciplinary practice.
1. Agents of change in the High Qualification Commission of Judges
Probably the most important decision of the new HCJ is the appointment of a new composition of the High Qualification Commission of Judges. The latter has to select 2.500-3.000 new judges to fill positions that are already vacant or will become vacant in the near future.
Whether the judicial system will change forever or, on the contrary, be preserved for decades will depend on who will be appointed to the High Qualification Commission of Judges.
The competition is now underway. And the Selection Commission will propose 32 candidates (or fewer if there are not enough decent candidates) for 16 vacant positions to the HCJ.
The HCJ should propose clear and transparent criteria for the selection of members of the HQCJ and appoint the best ones whose integrity is beyond doubt and who are real agents of change.
If the selection process is non-transparent and unclear to the public, and if 32 finalists are primarily supporters of the status quo, it will be a powerful signal that the HCJ is satisfied with the current state of affairs in the judicial system and is not going to change anything.
2. Tell me who your friend is, and I will tell you who you are
The previous composition of the HCJ labelled the public, which fights against corruption in the judiciary and protects independent judges, as enemies and simply ignored the Public Integrity Council.
This is understandable: the body that unanimously votes against even temporary suspension of the DACK judges for the duration of the investigation regarding “Vovk’s tapes”, turns a blind eye to obvious violations by judges and persecutes whistleblower judges could not do otherwise.
If the new composition of the HCJ has different goals, this policy should also change.
It is obvious that NGOs, journalists and other concerned citizens are not enemies of the judiciary. Moreover, it is they who work to ensure that judges are as independent, capable and able to resist illegal influences as possible. For any state institution that pursues the same goals, the public is the natural ally.
Therefore, the new HCJ should be as open as possible both to cooperation with representatives of civil society and to constructive criticism from them, which helps the new body to become better.
3. The DACK judges and other villains are a litmus test for new HCJ
The scandalous Kyiv District Administrative Court was liquidated last December. However, judges Vovk, Ablov, Sanin, Pohribnichenko, Kachur and others still remain in the system, continue to receive their salaries and cherish the hope of returning to power.
It is up to the new HCJ to put an end to their inglorious career.
Covering up the DACK judges was one of the main reasons for the restart of the HCJ. In the past, the body failed even to suspend judges from work while the criminal case was being investigated, and consideration of disciplinary complaints against judges was delayed in every possible way to avoid serious sanctions.
Therefore, the HCJ should demonstrate its principled approach and be one of the first to consider the issue regarding the DACK judges.
All facts of the misconduct of judges recorded on the NABU’s tape recordings should be assessed by members of the HCJ regardless of the result of the criminal proceeding so that the judicial community understands that such behaviour is unacceptable and will be unconditionally punished in future.
We are sure that judges will try to avoid punishment by stating that the deadline for bringing them to justice has passed. However, the law states that the deadline is suspended from the moment the complaint is filed to the HCJ, regardless of whether it had the right to consider it. Therefore, deadlines have not expired, and the HCJ has the opportunity to assess the actions of Vovk and his minions properly.
The case of the judge of the Supreme Court, Olha Stupak, will also be the test for the new HCJ. She became the judge of the Supreme Court through outright lies about the sources of her purchase of a luxury BMW X5 and 380 sq. m. house near Kyiv, which her mother-in-law allegedly had bought.
Despite these facts, the HQCJ and the HCJ recommended Stupak to the Supreme Court at first. After her appointment, the HCJ continued to cover up the judge in disciplinary proceedings.
Calling the lie by its name and punishing the judge is an affair of honour for the new HCJ and its head Hryhoriy Usyk, who has worked with Stupak in the same court in recent years.
It is also essential to hear the HCJ’s position regarding Maidan judges.
On the eve of the ninth anniversary of the Maidan shootings, we still have nothing to say to families of fallen heroes waiting for justice. Judges who banned peaceful assemblies punished Automaidan activists for trips to Mezhyhirya, and imprisoned protesters were granted indulgence by previous HCJ.
Test regarding values of the new composition will be their position regarding the role of judges in attempts to suppress protests and persecute activists. And the absence of a position is also the position.
Finally, the HCJ should start fighting against judicial schemes, such as covering up for drunk drivers, manipulating the automatic distribution of cases, rewriting decisions by correcting typos, usurping the positions of court heads, etc.
4. Real transparency, not declarative
The trust in the High Council of Justice and its decisions will largely depend on how openly and transparently the body operates. In the past, the HCJ used to broadcast all its meetings online but closed them in 2019.
Concealment of individual voting results was the standard practice. With the outbreak of the war, the situation became even worse, as the HCJ closed access to all its acts, even those that were publicly available until February 24.
We do not understand how closing access to decisions of the HCJ helps to fight the enemy. Still, we are well aware that it is very convenient to hide low-quality and unmotivated decisions under the guise of national security. It is just as convenient to hide behind collective irresponsibility by concealing voting results for each decision.
The slightest hint of non-transparency will bury any trust in the new HCJ and its decisions, even if they are legal and fair.
Therefore, we expect that the HCJ will ensure real, not declarative, openness in its work, which will be manifested in restoring access to all decisions and acts of the body, ensuring openness and broadcasting of all meetings, and holding open votes with the publication of individual results.
5. New quality of disciplinary proceedings
Consideration of disciplinary complaints and bringing judges to justice is perhaps the most important and time-consuming task of the HCJ. Today, this function is not fulfilled: the reform envisages the creation of an independent service of disciplinary inspectors in the apparatus of the HCJ, which will take over some of the work at the first stages of consideration of disciplinary complaints.
New inspectors should be selected through the competition. Until such competitions are held, the HCJ cannot consider any disciplinary cases at all.
It is crucial that honest and independent professionals are selected as disciplinary inspectors.
The competition, for which the HCJ is responsible, should be transparent, and the involvement of the Public Council of Integrity in the selection and evaluation of candidates will help to ensure confidence in results.
The HCJ should also prioritise the consideration of disciplinary complaints and make it impossible to manipulate the order of priority, and create a system that allows tracking stages of complaints from their receipt to the final decision, following the example of court cases.
Another important task that faces new HCJ is to systematise and unify disciplinary practice, which will ensure consistency, clarity and predictability of decisions in disciplinary cases.
***
Of course, other indicators are also important for assessing the HCJ: attitude towards judicial reforms, level of digitalisation, implementation of the anti-corruption program, improvement of existing procedures, and many others.
The public will be able to observe all of this in real-time and decide whether the reform has yielded real success or remained on paper.
This will directly influence decisions regarding further reforms. If renewed HCJ copes with its challenges, there will be a number of important but smaller things to be done, and the transformation of the judicial system could be considered complete.
If the work of renewed composition does not bring the desired result, other even more decisive measures will have to be taken to build a fair court in Ukraine.
There is no other way: independent and fair courts are an absolute necessity both for building a capable state and for our accession to the EU, which is the absolute priority of the people of Ukraine and its political leadership.