What is the judicial mafia afraid of in the Anti-Corruption Program?

This article was originally published in Ukrainian in Ukrainska Pravda.

Halyna Chyzhyk, Anti-Corruption Action Center
Kateryna Butko, Automaidan

On January 19, the first meeting of the new High Council of Justice (HCJ) was held. It is symbolic that the first decision of the new HCJ was the approval of the State Anti-Corruption Program (SACP) for 2023-2025.

SACP is a comprehensive document developed by the National Agency on Corruption Prevention (NACP), which describes the problems that exist in various authorities and proposes specific actions to solve them. An important role in the State Anti-Corruption Program is assigned to judicial reform and overcoming corruption in courts.

It took almost 7 hours of active discussions for the members of the HCJ to approve the position on the SACP. As a result, the High Council of Justice supported the Anti-Corruption Program, but with a number of caveats. This decision was voted almost unanimously - 14 out of 15 votes.

It is noteworthy that the Council of Judges, headed by the odious Bohdan Monich, expressed very similar caveats to the SACP. We decided to study the caveats in detail and find out what exactly the representatives of the judicial bodies do not like in the State Anti-Corruption Program and whether they should really be taken into account.

Denial of the fact of low public trust in the judicial system

In one of the paragraphs of the SACP, the following problem is formulated: "There is a tendency of increasing level of mistrust in the bodies of the justice system".

The members of the High Council of Justice strongly disagreed with this, stating that the allegations of distrust in the judiciary "are not supported by any real research among the professional community or a wide range of users of judicial services".

What is the real situation:

One of the latest polls conducted by the Razumkov Center in September 2022 shows that the trend of increasing Ukrainians' level of trust in the authorities has almost not affected the courts: 72% of citizens do not trust the courts, and this is one of the highest rates of mistrust.

Denying the overwhelming mistrust in the court, the new members of the High Council of Justice resort to a traditional manipulation, which their predecessors often resorted to: instead of national survey data, which represent the opinion of the entire Ukrainian society, they appeal to the results of a survey of users of court services, that is, direct participants in court proceedings.

Indeed, the level of trust in the judiciary is relatively higher here. However, mistrust prevails (35% versus 51%, according to a survey conducted in 2021).

Therefore, the question arises: have the members of the HCJ familiarised themselves with the data of the polls they rely on in detail?

The absurdity of the situation is compounded by the fact that while denying Ukrainians' mistrust of the judiciary, the new members of the HCJ also deny the need for judicial reform, thanks to which they got their positions.

Instead of setting themselves the goal of increasing the level of trust by ensuring transparency and quality of decisions, members of the renewed HCJ continue to play a game whose main rule is to deny reality and maintain the illusion that the system is perfect and does not need any changes.

Regulation of the conflict of interest prevention mechanism in the High Council of Justice and the High Qualification Commission of Judges

Currently, if one of the members of the HCJ has a conflict of interest when considering this or that issue, he is obliged to report it. However, whether a member of the HCJ with an existing conflict of interest will be excluded from consideration of this issue or not is decided by a general vote of the members of the body.

In the past, in similar cases, a member of the High Council of Justice repeatedly kept on considering the issue despite the declared conflict of interests. SACP draws attention to the need to change this trend.

However, according to the members of the HCJ, there is no problem here because there are no analytical materials that confirm this, and moreover, "there are also no concrete facts regarding decision-making by members of the HCJ in conditions of a potential or real conflict of interests".

What is the real situation:

Again, members of the HCJ deny the obvious. Back in 2017, an analytical study carried out by DEJURE Foundation convincingly demonstrated that members of the High Council of Justice participate in decision-making despite a conflict of interest: in only 4 out of 62 cases did a member of the High Council of Justice was recused from participating in consideration of the issue.

Journalists investigated the conflict of interests in the decisions of the HCJ members. In the end, the mandate of Viktor Hryshchuk, a member of the High Council of Justice, was terminated in 2022, in particular, due to the fact that he acted in conditions of a conflict of interests, as stated by the members of the Ethics Council in their decision.

Ensuring transparency during voting and scoring by members of the HCJ and HQCJ

The authors of the State Anti-Corruption Program drew attention to numerous complaints from the public regarding the non-transparency of scoring during the qualification assessment of judges by the High Qualification Commission of Judges.

The HCJ position: traditionally, the members of the High Council of Justice wrote back that there are no problems with the transparency of scoring or voting, and there can be no complaints about this either.

What is the real situation:

In accordance with Part 4 of Art. 34 of the Law of Ukraine "On the High Council of Justice", decisions of the HCJ and its bodies are adopted by open voting unless otherwise specified by law. One would think, what is the problem?

However, the members of the HCJ interpret the openness foreseen by the law in a strange way: they do not announce the results of the voting by name but publish only the total number of votes "for" and "against" each decision. Therefore, society does not know what the position of a specific member of the HCJ is on any issue unless it is a unanimous decision.

In this way, members of the HCJ avoid personal responsibility for their decisions, which becomes collective irresponsibility.

We are convinced that the publication of the roll-call voting results would contribute not only to increasing the transparency of the body but also to a more careful attitude of the members of the HCJ to the performance of their professional duties.

It is noteworthy that this clause of the SACP applies not only to the decisions of the High Council of Justice but also to the High Qualification Commission of Judges and affects an important tool for evaluating judges and candidates for judicial positions. Criticism of the HQCJ in the past was largely based on the fact that it was not at all clear what assessments individual members of the commission gave to candidates and how the places of candidates in the final rating were determined.

Strengthening the role and institutional capacity of the Public Integrity Council (PIC)

Separately, the State Anti-Corruption Program allocated a place to the Public Integrity Council, drawing attention to the need to "more clearly define the tasks and powers of the Public Integrity Council, ensure its composition, which would include various representatives of society, and strengthen the provisions regarding conflicts of interest, in particular by introducing an effective control mechanism ".

Also, the text of the SACP mentions the need to increase the institutional capacity of the PIC.

Position of the HCJ: in their caveats, the members of the High Council of Justice emphasise that no additional powers or, even more so, institutional strengthening of the PIC are needed. In substantiation of this position, the members of the HCJ say that the legislator has not defined a clear status for the PIC, and they also refer to the conclusion of the Council of Europe from 2017 regarding the Council's regulations.

What is the real situation:

Here, the members of the HCJ contradict themselves because they say that the status of the PIC is not standardised while at the same time speaking against standardising. In fact, the activity of the two compositions of the PIC in the past demonstrated the success of the idea of involving the public in the evaluation and selection of judges.

The position on public participation in judicial reform can become one of the litmus tests for evaluating the sincerity of the intentions of the newly elected members of the HCJ. After all, if they are focused on the proper renewal of the judiciary, then they should be most interested in helping civil society. On the contrary, if their intentions are insincere and they have something to hide from society, then they will try in every possible way to prevent the active involvement of external participants.

Ensuring clear and understandable integrity criteria during the qualification assessment of judges

The SACP proposes to improve the procedures for the selection and evaluation of judges, to develop clear, understandable and predictable evaluation criteria, and to ensure the unity of the approaches of the HCJ, HQCJ, and PIC. At the same time, the document suggests adopting the best practices developed in the past, in particular, by the Public Council of International Experts.

Position of the HCJ: Traditionally, the HCJ opposes the proposed changes, insisting that the existing criteria in the law are sufficient.

What is the real situation:

Ukrainian legislation defines only general criteria for assessing judges and candidates for judicial positions. These criteria should be detailed in the normative documents of the HCJ and HQCJ and tested in practice.

It was the lack of clearly defined assessment indicators in the past that allowed arbitrary decisions when, under the same circumstances, some candidates stopped participating in the competition, and others ended up at the top of the rating list. In the same way, the lack of uniform approaches to the consideration of disciplinary complaints made it possible to punish or refuse to punish judges for the same violations.

Therefore, such a position of the new HCJ makes one doubt the sincerity of intentions once again. After all, clear and detailed rules should help the members of the HCJ to fully and decently perform the assigned tasks and prevent them from unequal practices.

It is noteworthy that revising and improving the methodology for selecting judges and defining clear and understandable criteria and indicators is one of Ukraine's obligations under the new macro-financial agreement with the EU.

We hope that the HCJ will not criticise this document and its proposed changes.

Prohibition on dismissal of a judge at his own will pending consideration of disciplinary proceedings

One of the important measures proposed by the State Anti-Corruption Program is a ban on the dismissal of a judge from his position upon his resignation until the completion of disciplinary proceedings against the judge.

The position of the HCJ: The HCJ proposes to remove this measure, as it can allegedly lead to a violation of the constitutional guarantees of judges.

What is the real situation:

It was this issue that was mostly complained about by the public in regard to the previous composition of the HCJ.

Very often, judges, against whom disciplinary proceedings were opened, tried to escape into retirement with considerable allowance and avoid punishment in this way. And the HCJ was happy to help them with this.

For example, a few years ago, the HCJ sent judge Natalia Bulavina into honourable retirement while the HCJ was considering a motion from the HQCJ to dismiss the judge for committing a disciplinary violation. The reason was that the judge stayed in occupied Luhansk and started working in the judiciary of the so-called "LPR", taking the positions of the head of the council of judges and a judge of the supreme court there.

The work of Nataliya Bulavina for the enemy was also confirmed by the SBU. However, instead of dismissing the judge for a disciplinary violation, the VHCJ sent her to an honourable retirement with lifetime payments at the expense of Ukrainian citizens' taxes.

We cannot fail to mention the case that happened on March 10, 2020, when the first issue on the agenda was the retirement of judge of the Court of Appeals of the Rivne Region Anzhelika Sheremet, and the second was her dismissal due to failure to pass the qualification assessment. At that time, the HCJ considered only the first issue because it was impossible to dismiss a judge twice.

Therefore, the proposal to clearly define in the law the sequence of consideration of issues regarding the dismissal of judges seems quite logical. It is clear that the judges themselves do not like such a proposal because they may lose one of the important loopholes for the future.

Unfortunately, by opposing such a proposal, the HCJ demonstrates that it puts the interests and wishes of judges above those of society and is ready to put the burden of lifelong payments to judges of low integrity on citizens just to avoid criticism of the judicial corps.


So we can see that the caveats of the HCJ to the State Anti-Corruption Program are aimed at preserving current practices and maintaining an atmosphere of clannishness, under which the elected members of the HCJ have almost unlimited power to resolve issues of judicial careers.

Unfortunately, the aggressive rhetoric of the HCJ is no different from that of its predecessors, which leads to the unfortunate thought of the futility of efforts to reform the body in recent years.

It seems that even though the members of the HCJ received positions thanks to the new selection rules, they nevertheless set themselves the task of preventing any changes for the better, although it was precisely the changes in the practices and approaches of the HCJ that were the task of the reform.

Therefore, at the moment, the approval of the State Anti-Corruption Program looks like a confrontation between the old system and new approaches aimed at eliminating opportunities for abuse and corruption.

Who will win in this duel will be determined by the government committee and the Cabinet of Ministers, who will either force NACP to take into account all the comments of the judicial mafia or support the current version of the document.