Mykhailo Zh­er­nakov: Poroshenko’s ‘only goal’ is to keep con­trol of ju­di­ciary

Kyiv Post Legal Quarterly - - Contents - By Ber­met Talant and Oleg Sukhov

The fu­ture of Ukraine’s ju­di­ciary sys­tem is be­ing de­fined in two si­mul­ta­ne­ous pro­ceed­ings. At the mo­ment when the High Coun­cil of Jus­tice is re­view­ing 120 can­di­dates to the new Supreme Court, the Ukrainian par­lia­ment is hold­ing votes on a mas­sive pack­age of amend­ments to the pro­ce­dural codes.

The High Coun­cil of Jus­tice is set to con­sider ap­point­ing 120 Supreme Court nom­i­nees af­ter Sept. 25, and then Pres­i­dent Petro Poroshenko will have a sym­bolic right to sign their cre­den­tials.

Ukraine’s long-stalled re­form of its cor­rupt ju­di­ciary sys­tem is a brain­child of Poroshenko. He pro­claimed that the re­booted Supreme Court would rest upon in­de­pen­dence and im­par­tial­ity.

“Poroshenko is the au­thor of this re­form and there­fore bears full re­spon­si­bil­ity for it,” said Mykhailo Zh­er­nakov, a mem­ber of the Pub­lic In­tegrity Coun­cil, a civil so­ci­ety watch­dog that over­sees ju­di­cial re­form. “We see that his only goal is to re­tain con­trol over the ju­di­ciary as much as he can.”

Civil watch­dogs be­lieve re­form was de­signed in a way that left room for po­lit­i­cal

ma­nip­u­la­tion. They see a great risk that old judges with du­bi­ous pasts who served for­mer Pres­i­dent Vik­tor Yanukovych may get into the new Supreme Court and con­tinue serv­ing po­lit­i­cal lead­ers.

Mem­ber­ship in the elite club of judges comes with sta­tus, power and im­mu­nity, in­clud­ing life­time ser­vice and (le­gal or il­le­gal) fi­nan­cial re­wards. It's no sur­prise that the old co­hort of judges, who ma­tured in Soviet times or un­der the klep­to­cratic rule of pre­vi­ous Ukrainian pres­i­dents, want to stay.

None­the­less, the com­pe­ti­tion to the new Supreme Court al­lowed at­tor­neys, le­gal schol­ars and junior judges to ap­ply for the first time.

Lack of trans­parency A ma­jor loop­hole was hid­den in the un­clear method­ol­ogy used by the High Qual­i­fi­ca­tion Com­mis­sion.

“The se­lec­tion only ap­peared to be trans­par­ent. It was broad­cast on­line,” Ser­hiy Ver­lanov, a Pub­lic In­tegrity Coun­cil mem­ber and part­ner at Sayenko Kharenko law firm. “The Pub­lic In­tegrity Coun­cil was present at al­most any dis­cus­sion. But the as­sess­ment it­self and cal­cu­la­tion of points was con­cealed.”

Ver­lanov be­lieves that the High Qual­i­fi­ca­tion Com­mis­sion should have awarded points to can­di­dates im­me­di­ately and given more value to pro­fes­sional assess­ments over psy­cho­log­i­cal assess­ments as well as short­ened the time frame for the in­ter­views.

“Let’s hear all can­di­dates and then vote for all of them at once’ isn’t an ef­fec­tive ap­proach be­cause it gives un­fair ad­van­tage to the can­di­dates at the end of the list,” he said. “They are likely to be re­mem­bered bet­ter by the mem­bers of the com­mis­sion as well as sim­ply know what to be pre­pared for by the time their turn comes.”

The High Qual­i­fi­ca­tion Com­mis­sion ini­tially re­fused to pub­lish its rec­om­men­da­tions on ap­point­ing 120 Supreme Court judges. The com­mis­sion di­vulged them only re­cently but they con­tain no ex­pla­na­tions on why can­di­dates were nom­i­nated and why the Pub­lic In­tegrity Coun­cil’s ve­toes of 30 of the can­di­dates were over­rid­den, Ro­man Kuy­bida, a mem­ber of the Pub­lic In­tegrity Coun­cil, told the Kyiv Post.

“These rec­om­men­da­tions are empty and have no mo­tives,” Kuy­bida said. “We still can’t un­der­stand why our con­clu­sions have been re­jected… And the rec­om­men­da­tions are nearly iden­ti­cal.”

He said that “an hon­est com­pe­ti­tion is one that al­lows you to ver­ify each stage, and it’s im­pos­si­ble to un­der­stand for what the scores were given and ver­ify them.”

Ser­hiy Kozyakov, head of the High Qual­i­fi­ca­tion Com­mis­sion, re­sponded in an email to the Kyiv Post that “its de­ci­sions con­tain the nec­es­sary struc­ture, mean­ing and mo­tives.”

Kuy­bida and Ro­man Maselko, an­other mem­ber of the coun­cil, said that the High Qual­i­fi­ca­tion Com­mis­sion had ef­fec­tively ig­nored in­for­ma­tion pro­vided by the Pub­lic In­tegrity Coun­cil.

There is no cor­re­la­tion be­tween the Pub­lic In­tegrity Coun­cil’s assess­ments and the scores for in­tegrity given by the High Qual­i­fi­ca­tion Com­mis­sion, ac­cord­ing to Kuy­bida.

More­over, Pub­lic In­tegrity Coun­cil mem­bers said they had not been al­lowed to speak dur­ing High Coun­cil of Jus­tice meet­ings.

Maselko and Kuy­bida also said that psy­cho­log­i­cal tests used by the High Qual­i­fi­ca­tion Com­mis­sion were ap­par­ently “loy­alty tests,” fa­vor­ing the least in­de­pen­dent judges. “For a judge, it’s im­por­tant to be dis­loyal,” Kuy­bida said. “They must be in­de­pen­dent.”

Voic­ing an­other com­plaint, Ro­man Bre­hei, a judge and Supreme Court can­di­date, crit­i­cized the High Qual­i­fi­ca­tion Com­mis­sion for al­low­ing 299 can­di­dates with in­suf­fi­cient scores to com­pete — a move that ap­pears to pro­mote judges fa­vored by the au­thor­i­ties. Kozyakov ar­gued that the law that Bre­hei used to jus­tify his po­si­tion was not ap­pli­ca­ble to the Supreme Court com­pe­ti­tion, which is reg­u­lated by an­other law.

Bre­hei has also ac­cused the com­mis­sion of vi­o­lat­ing the law by fail­ing to set a min­i­mum score for the lat­est stage of the com­pe­ti­tion — moral and psy­cho­log­i­cal test­ing.

Con­flict of in­ter­est Mean­while, the High Coun­cil of Jus­tice has been crit­i­cized for dis­miss­ing 48 out of its mem­bers’ 52 re­cusals from vot­ing for spe­cific Supreme Court can­di­dates due to a con­flict of in­ter­est. This prompted ac­cu­sa­tions that the coun­cil was aim­ing to get the nec­es­sary 14 pro-govern­ment votes to ap­point po­lit­i­cally loyal can­di­dates.

The High Coun­cil of Jus­tice ex­plained the re­jec­tion of re­cusals by say­ing that, ac­cord­ing to the Na­tional Agency for Pre­vent­ing Cor­rup­tion, the fact of of­fi­cials work­ing to­gether at one or­ga­ni­za­tion with­out hav­ing friendly re­la­tions does not con­sti­tute a con­flict of in­ter­est.

Coun­cil mem­bers Alla Lesko and Alla Oliynyk have been ex­empted by the High Coun­cil of Jus­tice from vot­ing for any Supreme Court nom­i­nees be­cause they took part in the com­pe­ti­tion as can­di­dates.

How­ever, the coun­cil re­jected a re­quest by Yaroslav Ro­manyuk, chair­man of the Supreme Court and a mem­ber of the High Coun­cil of Jus­tice, to re­cuse him­self due to his par­tic­i­pa­tion in the com­pe­ti­tion.

The High Coun­cil of Jus­tice said that Ro­manyuk had with­drawn from the com­pe­ti­tion and that is why had no per­sonal in­ter­est in it.

Du­bi­ous can­di­dates

Ac­cord­ing to the Pub­lic In­tegrity Coun­cil, at least 30 of the Supreme Court nom­i­nees have breached pro­fes­sional ethics and in­tegrity, al­though Zh­er­nakov does not rule out that there could be more. Some pro­hib­ited peace­ful assem­bly; some lead a life­style in­con­sis­tent with their in­come; some lied on their dec­la­ra­tions of as­sets. More se­ri­ous wrong­do­ings in­clude judges whose pre­vi­ous ver­dicts were qual­i­fied as po­lit­i­cally mo­ti­vated or ar­bi­trary.

“The main ques­tion now is how many of those 30 will be blocked by the High Coun­cil of Jus­tice,” he says. “This po­lit­i­cal lead­er­ship knows how to cir­cum­vent. They are not as brazen as Yanukovych who ap­pointed ob­vi­ous crim­i­nals to courts. They choose judges who are less known and less ex­posed but still de­pen­dent on po­lit­i­cal in­flu­ence.”

Pro­ce­dural codes And fi­nally, one more big caveat is the vote in the Verkhovna Rada on 4,000 amend­ments to three pro­ce­dural codes and a num­ber of ju­di­ciary laws. The lawyers as­sume that the vote was de­lib­er­ately post­poned un­til the last minute. “The Pres­i­den­tial Ad­min­is­tra­tion cre­ated a sit­u­a­tion the par­lia­ment has no choice but to pass the amend­ments, oth­er­wise there will be no func­tion­ing Supreme Court,” said An­drii Khym­chuk, a lawyer at the De­jure foun­da­tion.

Zh­er­nakov said that this strat­egy has been used for any ma­jor leg­is­la­tion in Ukraine that needs to be passed.

“Post­pone it for as long as pos­si­ble to the point when it’s ab­so­lutely crit­i­cal and then push the par­lia­ment to vote for it last minute,” he said. It's im­pos­si­ble to go through so many amend­ments in such a short time, he said, cre­at­ing op­por­tu­ni­ties to pass du­bi­ous changes too.

Mykhailo Zh­er­nakov, mem­ber of the Pub­lic In­tegrity Coun­cil, speaks to the Kyiv Post on Sept. 20. (Oleg Pe­tra­siuk)

Look at what you’re do­ing to them NEWS ITEM: Alexey Kot, a lawyer and mem­ber of the Ju­di­cial Re­form Coun­cil, an ad­vi­sory body for Pres­i­dent Petro Poroshenko, told THE Kyiv Post that the harsh and con­stant crit­i­cism against Ukrainian judges is dis­cour­ag­ing for the new peo­ple that are con­sid­er­ing en­ter­ing the field.

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