De­lay in court: First re­sults in the se­lec­tion of can­di­dates for the Supreme Court

Can­di­dates for po­si­tions in the re­newed Supreme Court have one last bar­rier to over­come

The Ukrainian Week - - CONTENTS - An­driy Holub

Lawyer Hanna Vron­ska could soon have a new pro­fes­sional sta­tus. She is sixth in the rank­ing of can­di­dates for the 30 va­cant judge po­si­tions at the Eco­nomic Cham­ber of the Supreme Court of Ukraine. A favourable opin­ion from mem­bers of the Supreme Coun­cil for Jus­tice and a de­cree from Pres­i­dent Petro Poroshenko are all that stand be­tween her and be­com­ing a judge. Along­side Vron­ska, 119 peo­ple who suc­cess­fully passed all stages of the se­lec­tion process for the four cham­bers of the Supreme Court – ad­min­is­tra­tive, crim­i­nal, civil and eco­nomic – are wait­ing for the same things. Vron­ska says that, de­spite the wide­spread stereo­type about lawyers, she never dreamed of be­com­ing a judge. Ac­cord­ing to her, re­spon­si­ble lead­ers should be ready to come to power, rather than scep­ti­cally ob­serv­ing fail­ures from the side­lines. "It's more hon­est to try and do some­thing. There­fore, I de­cided to take part in the se­lec­tion process for the Supreme Court," is how she ex­plains her mo­ti­va­tion for com­pet­ing.

The se­lec­tion process it­self was de­layed for al­most nine months. Dur­ing this time, there were some rather high­pro­file scan­dals. Opin­ions on the re­sults and trans­parency of the se­lec­tion are rad­i­cally di­vided. This can even be seen in the statis­tics that var­i­ous in­volved par­ties be­gan to use im­me­di­ately af­ter the pub­li­ca­tion of the fi­nal rat­ing.

Ev­ery­one starts with the same data, but the ac­cents are very dif­fer­ent.

The High Qual­i­fi­ca­tion Com­mis­sion of Judges (HQCJ), which had the de­cid­ing vote when eval­u­at­ing can­di­dates at pre­vi­ous stages, em­pha­sised that the Supreme Court would be 95% re­newed. Rep­re­sen­ta­tives of civil so­ci­ety and, in par­tic­u­lar, the Pub­lic Coun­cil of In­tegrity (PCI) have pointed out other fig­ures: 25% of the ap­pli­cants who passed the se­lec­tion were given neg­a­tive opin­ions by PCI, while 80% of the can­di­dates are present or for­mer judges.

The HQCJ un­der­lines that they have suc­cess­fully com­plied with and even ex­ceeded the norms for "non-judges" within the SCU. "Those se­lected in­cluded 16 re­searchers, 9 lawyers and 4 can­di­dates with other le­gal ex­pe­ri­ence (for­mer judges – Ed.). Por­tu­gal has a quota of 10% for 'non-judges' in the Supreme Court. We will ex­ceed this fig­ure 2.5 times over," the HQCJ web­site quotes its head Ser­hiy Kozi­akov as say­ing.

"De­spite the high-pro­file state­ments from the Pres­i­dent about the re­newal of the Supreme Court and the head of the HQCJ Ser­hiy Kozi­akov on the un­prece­dented trans­parency of this process, old judges, some of which also have ques­tion­able in­teg-

rity or ex­pe­ri­ence in con­duct­ing po­lit­i­cal per­se­cu­tion to please the au­thor­i­ties, are win­ning the com­pe­ti­tion or­gan­ised by the com­mis­sion," is the re­ply of the Rean­i­ma­tion Pack­age of Re­forms coali­tion on be­half of civil so­ci­ety.

One camp em­pha­sises that men and women will be rep­re­sented in the SCU in al­most equal pro­por­tions. The other replies that, for ex­am­ple, in the Crim­i­nal Cham­ber, ev­ery fifth judge will be with a neg­a­tive opin­ion from the PCI re­gard­ing their in­tegrity. This cross-ex­am­i­na­tion could go on for­ever.

Judge Ro­man Bre­hei from Kropy­vnyt­skyi, un­like Vron­ska, is not yet pre­par­ing for a change to his sta­tus. For him, se­lec­tion for the Ad­min­is­tra­tive Cham­ber of the Supreme Court ended in March. Bre­hei did not pass the first stage, which con­sisted of writ­ten tests and a prac­ti­cal task. Both, ac­cord­ing to the law, are com­bined into a so-called exam to es­tab­lish a can­di­date's suit­abil­ity for a judge po­si­tion. Since then, Bre­hei has been un­suc­cess­fully try­ing to prove in var­i­ous courts that the se­lec­tion process in­cluded vi­o­la­tions of rules.

The con­flict be­tween Bre­hei and the HQCJ il­lus­trates the first large scan­dal to hit the com­pet­i­tive se­lec­tion. In Fe­bru­ary, the HQCJ set a min­i­mum ac­cept­able test mark for can­di­dates ap­ply­ing for Supreme Court po­si­tions – from 54 to 60 de­pend­ing on the Cham­ber (the max­i­mum pos­si­ble score was 90). Ap­pli­cants took the tests, af­ter which a sig­nif­i­cant pro­por­tion of them dropped out of the com­pe­ti­tion. In March, the HQCJ set a sep­a­rate min­i­mum re­quire­ment for the prac­ti­cal task – from 65 to 70 points (out of a pos­si­ble 120). On the same day, the me­dia pub­lished lists of 339 can­di­dates who got through the stage by scor­ing a pass­ing mark for each of the cri­te­ria. How­ever, less than 24 hours later the HQCJ set the min­i­mum pass­ing mark for the third time. This time for the whole exam as the sum of the pass­ing marks for each of the two tasks. That helps 43 judges who re­ceived high marks for the test, but failed at writ­ing an ap­peal court rul­ing re­turn to the se­lec­tion process. One such ap­pli­cant was deputy chair of the High Ad­min­is­tra­tive Court, Mykhailo Smokovych (iron­i­cally, draw­ing up such rul­ings is part of his cur­rent du­ties – Ed.). This judge suc­cess­fully passed the fol­low­ing stages of com­pet­i­tive se­lec­tion and is now in the list of 120 rec­om­mended can­di­dates. Two other mem­bers in the "list of 43" shared the same fate as Smokovych: Kharkiv Oblast Court of Ap­peal judge Olek­sandr Yemets (ap­ply­ing for a post in the Crim­i­nal Cham­ber) and High Eco­nomic Court of Ukraine judge Hry­horiy Machul­skyi (ap­ply­ing for a po­si­tion in the Eco­nomic Cham­ber).

Bre­hei openly calls the de­ci­sion to es­tab­lish the third min­i­mum ac­cept­able mark a "crime". Since this hap­pened, he has filed a com­plaint with the Na­tional Anti-Cor­rup­tion Bureau (NACB) and brought a suit to the High Ad­min­is­tra­tive Court. The judge has still not re­ceived a re­ply from the NACB, while the High Ad­min­is­tra­tive Court re­fused to sat­isfy his claim. Bre­hei dis­agreed with this and ap­plied to the Supreme Court, which he was try­ing to join him­self, for a re­view of the rul­ing. Asked whether he sees con­tra­dic­tions in fil­ing a com­plaint to the Supreme Court, the law­ful se­lec­tion of which he is chal­leng­ing, Bre­hei replies in the neg­a­tive: "The fil­ing of an ap­pli­ca­tion to re­view a court rul­ing proves that it is not legally valid. It (the High Ad­min­is­tra­tive Court de­ci­sion – Ed.) is empty. There is no anal­y­sis of the vi­o­la­tions."

In a law­suit against the High Ad­min­is­tra­tive Court, Bre­hei ex­panded his de­mands. In ad­di­tion to over­turn­ing the de­ci­sion to ad­mit peo­ple from the "list of 43" to the fol­low­ing stages of se­lec­tion, he also re­quested that all those who did not score 157.5 marks over the two tasks (299 peo­ple) be ex­cluded from the com­pe­ti­tion. The fig­ure of 157.5 is 75% of the max­i­mum num­ber of marks in the two cri­te­ria – this is the thresh­old set out by the Law "On the Ju­di­ciary and the Sta­tus of Judges" for the at­tes­ta­tion of some­one to be ap­pointed as a judge. Bre­hei de­scribed his logic in de­tail in a com­plaint to the Supreme Coun­cil of Jus­tice that was filed in July: "The con­di­tions to suc­cess­fully pass the qual­i­fi­ca­tion ex­am­i­na­tion dur­ing eval­u­a­tion for se­lec­tion as a Supreme Court judge are as fol­lows: 1) ex­ceed­ing the min­i­mum num­ber of marks at each stage of the ex­am­i­na­tion, 2) if the min­i­mum marks are ex­ceeded, the sum of the marks may not be less than 75% of the max­i­mum score for all stages of the exam." The panel of judges at the High Ad­min­is­tra­tive Court dis­agreed with this logic. Firstly, the judges in­di­cated that they did not con­sider Bre­hei's rights to have been vi­o­lated, since he would not have been able to con­tinue in any cir­cum­stances with his 119 marks. Se­condly, they did not agree with the pro­posed norm of 157.5 marks.

The judges recog­nised that the cri­te­ria to suc­cess­fully pass an exam as part of the se­lec­tion process for a Supreme Court judge may not be less than for courts of first in­stance. How­ever, the judges' fur­ther in­ter­pre­ta­tion of the law is in­deed some­what strange: "At the same time, such a cri­te­rion is not only a me­chan­i­cal in­di­ca­tor, i.e. the per­cent­age of cor­rect an­swers, but also the con­tent and in­tegrity of the exam, tak­ing into ac­count the prin­ci­ples of le­gal hi­er­ar­chy and spe­cial­i­sa­tions. There­fore, the per­cent­age re­ferred to in Part 7 of Ar­ti­cle 78 of the Law of Ukraine 'On the Ju­di­ciary and Sta­tus of Judges of Ukraine' can­not be ap­plied as a univer­sal rule, as it does not take into ac­count other cri­te­ria, such as the scope, type and form of tasks that are de­ter­mined by the High Qual­i­fi­ca­tion Com­mis­sion of Judges of Ukraine dur­ing the cor­re­spond­ing qual­i­fi­ca­tion as­sess­ment." In ad­di­tion, the HQCJ be­lieves that it is not nec­es­sary to equate the qual­i­fi­ca­tion ex­am­i­na­tion with the qual­i­fi­ca­tion as­sess­ment. In his com­plaint to the Supreme Coun­cil of Jus­tice, Bre­hei turned his at­ten­tion to this too: "The Com­mis­sion claims that an ex­am­i­na­tion as part of the qual­i­fi­ca­tion as­sess­ment in the se­lec­tion process for the Supreme Court can­not be called a qual­i­fi­ca­tion ex­am­i­na­tion. In my opin­ion, the com­mis­sion is try­ing in this way to evade re­spon­si­bil­ity for the gross vi­o­la­tion that has been com­mit­ted. In­deed, the pro­vi­sions of Part 1 of Ar­ti­cle 85 of the law state that one of the stages of the qual­i­fi­ca­tion as­sess­ment is an ex­am­i­na­tion. If we re­call the laws of logic, it is easy to con­clude that this is a qual­i­fi­ca­tion ex­am­i­na­tion." Bre­hei has still not re­ceived a re­ply from the Supreme Coun­cil of Jus­tice. Ac­cord­ing to him, this is the last le­gal mech­a­nism he was able to turn to.

Bre­hei's ad­min­is­tra­tive case re­gard­ing the or­gan­i­sa­tion of the com­pe­ti­tion is not the only one, al­though it is the most well-known. Ser­hiy Kozi­akov, the head of the HQCJ, said in an in­ter­view with the pub­li­ca­tion Left Bank that in to­tal there were 40 com­plaints to the High Ad­min­is­tra­tive Court, of which 27 are still pend­ing, while five more are be­ing ap­pealed in the Supreme Court. How­ever, the for­mal­i­ties are not the only ba­sis for crit­i­cism of the se­lec­tion. Ac­cord­ing to Ro­man Maselko, a mem­ber of the Pub­lic Coun­cil of In­tegrity (PCI), trans­parency and pub­lic par­tic­i­pa­tion in de­ci­sion-mak­ing were sup­posed to be the de­ci­sive fac­tors in this process. In or­der to en­sure pub­lic par­tic­i­pa­tion, the PCI was cre­ated in or­der to check the can­di­dates' in­tegrity and, in the event of any dis­crep­an­cies, send their con­clu­sion to the HQCJ.

The sit­u­a­tion with the find­ings of the PCI, which the HQCJ ex­am­ined for one month, brought the sharpest con­tra­dic­tion be­tween the par­ties to the fore. The PCI filed 140 neg­a­tive opin­ions, of which the HQCJ over­turned 89 by at least 11 votes out of 16 com­mis­sion mem­bers. As a re­sult, 30 can­di­dates from the PCI "black list" are among the suc­cess­ful ap­pli­cants. They point to the ex­am­ple of Vi­ach­eslav Zas­tavnyi, who at one time tried the cur­rent Pros­e­cu­tor Gen­eral Yuriy Lut­senko and was ranked sec­ond for the Crim­i­nal Cham­ber of the Supreme Court, or Civil Cham­ber judge Olha Stu­pak, who lives in a 380m2 house near Kyiv that is of­fi­cially owned by her mother-in-law and could not ex­plain at whose ex­pense this dwelling was built. Stu­pak is in sev­enth place of the rank­ing for the Civil Cham­ber. The PCI add that in ad­di­tion to their con­clu­sions, they also pro­vided the HQCJ with in­for­ma­tion on can­di­dates' pos­si­ble lack of in­tegrity. This was done if they did not have the op­por­tu­nity to con­firm it. Ac­cord­ing to the logic of the PCI, this should have been done by the HQCJ, tak­ing ad­van­tage of its broader pos­si­bil­i­ties. While neg­a­tive opin­ions were given to 25% of those who made it into the fi­nal rank­ing, neg­a­tive "in­for­ma­tion" was col­lected in relation to 70%. It is still un­known whether the HQCJ checked this data.

Can­di­date for Supreme Court judge Vron­ska says that as an ap­pli­cant she was sat­is­fied with the or­gan­i­sa­tion of the se­lec­tion process and its open­ness. "For me, the main thing was that all of us (con­tes­tants) were on an equal foot­ing. We all wrote the tests and prac­ti­cal task in the same con­di­tions, in one room – ev­ery­one had the same time limit and the same type of tasks (de­pend­ing on their spe­cial­i­sa­tions). The psy­cho­log­i­cal tests were also held in iden­ti­cal con­di­tions, ob­servers at­tended all stages, there was video mon­i­tor­ing and in­ter­views were broad­cast on­line so ev­ery­one could watch them. Re­gard­ing the or­gan­i­sa­tion of the process, I did not no­tice a more favourable or dis­re­spect­ful at­ti­tude to any par­tic­u­lar can­di­date. There­fore, I can­not com­plain about the or­gan­i­sa­tion or trans­parency."

A sim­i­lar po­si­tion is held by the HQCJ. They note that the com­pe­ti­tion was un­prece­dented in its open­ness, even in com­par­i­son with Euro­pean coun­tries, where all the pro­ce­dures for ap­point­ing judges take place "be­hind closed doors".

Many mem­bers of the PCI dis­agree with this. "The con­test seemed to be rather open from the out­side. How­ever, key pro­cesses re­mained be­hind the scenes," says Ro­man Maselko, a mem­ber of the coun­cil. Ac­cord­ing to the pro­vi­sions of the law, there are only three cri­te­ria for the as­sess­ment of can­di­dates’ qual­i­fi­ca­tions for the po­si­tion of Supreme Court judge: com­pe­tence, pro­fes­sional ethics and in­tegrity. In to­tal, ac­cord­ing to these three cri­te­ria, each ap­pli­cant was able to get a max­i­mum of 1000 points. How­ever, it is not known for sure how ex­actly most of these points were dis­trib­uted. "There were two more or less trans­par­ent stages – the test and prac­ti­cal task, al­though there is an in­for­ma­tion dis­clo­sure prob­lem here too (the HQCJ has stated that it is not re­quired by law to pub­lish the ap­pli­cants' work and has called on them to do this vol­un­tar­ily – Ed.). How­ever, these two stages ac­count for 210 points out of 1000. On the other hand, al­most 800 points were pulled out of the 'HQCJ hat' and we have no idea which cri­te­ria they ap­plied," ex­plains Vi­taliy Ty­tych, an­other mem­ber of the PCI. The PCI are de­mand­ing that a break­down of all marks given by mem­bers of the HQCJ be pub­lished, in par­tic­u­lar for in­tegrity and pro­fes­sional ethics.

In or­der for the Supreme Court to fi­nally start op­er­a­tions (the se­lec­tion process was due to end in May, which in it­self could give grounds for its re­sults to be ap­pealed), it is suf­fi­cient to ap­point 65 judges out of a to­tal of 200. There­fore, the PCI urges the Supreme Coun­cil of Jus­tice and pres­i­dent not to im­me­di­ately ap­point all 120 can­di­dates, among


whom there are peo­ple with du­bi­ous rep­u­ta­tions. Af­ter this com­pe­ti­tion, a sec­ond wave of se­lec­tion will take place, where there will be a greater num­ber of can­di­dates and, con­se­quently, higher qual­ity. Hanna Vron­ska calls on ev­ery­one who has any doubts to par­tic­i­pate in the sec­ond wave. Asked if scan­dals around the com­pe­ti­tion will ham­per the main goal of ju­di­cial re­form – to in­crease pub­lic con­fi­dence in the courts – she replies that it does not de­pend so much on the se­lec­tion process as on the work of the re­newed ju­di­cial in­sti­tu­tions. The Supreme Court is only one of them.

How­ever, there is an­other prob­lem that has al­most been for­got­ten. The Verkhovna Rada started its sum­mer re­cess with­out adopt­ing im­por­tant changes to the pro­ce­dural codes. With­out these amendments, the Supreme Court will not be able to func­tion in any ca­pac­ity. As for the odi­ous can­di­dates for Supreme Court po­si­tions, the buck ob­vi­ously stops at the pres­i­dent. He ini­ti­ated the ju­di­cial re­form and his de­crees will bring the Supreme Court se­lec­tion process to a close. In the eyes of the pub­lic, what­ever the re­sult, re­spon­si­bil­ity will lie on his shoul­ders, not on the HQCJ or Supreme Coun­cil of Jus­tice, no mat­ter what the terms of the com­pe­ti­tion stated.

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