In the course of the last months of the Supreme Court competition, when the Public Integrity Council (hereinafter – PIC) was issuing negative opinions on unscrupulous candidates, discreditation campaign against this civic institution and its members has unfolded in Ukrainian media and in the public sector. Unfortunately, some analyses of international experts (such as the OSCE/ODIHR legal opinion on the compliance of the Law “On the judiciary and the status of judges” with international human rights standards and OSCE commitments) were also used by the PIC’s opponents as a part of this discreditation campaign.
To avoid misunderstandings and find a common stand on the desired outcome of Ukraine’s judicial reform, it is important to scrutinize the most widespread allegations against the PIC and compare expert opinions regarding the PIC’s correspondence to the international/European standards with the situation within Ukraine’s judiciary on the ground.
It is also important to outline that while analyzing the provisions of Ukrainian legislation regarding PIC’s functioning, international experts usually use the standards applicable to the regular assessment of acting judges. However, the ongoing Supreme Court competition attracted 30% of the candidates from outside the system (attorneys and legal scholars), meaning that these standards cannot be directly applied to the competition in general and to the PIC’s role in this process in particular. Therefore, it is necessary to expose the key myths about PIC’s functioning and juxtapose these allegations with the actual facts.
KEY ALLEGATIONS AGAINST THE PUBLIC INTEGRITY COUNCIL:
Myth #1: Excessive powers of the Public Integrity Council as an external non-judicial institution
First and foremost, the Public Integrity Council does not possess any excessive powers. Its role in the assessment of a candidate’s integrity is solely consultative, while the final decision on judicial candidacies is made by the High Qualification Commission of Judges (hereinafter – HQCJ) that is comprised predominantly by judges. This goes in line with the opinion of the Consultative Council of European Judges (CCJE), which affirms that “associating persons external to the judiciary (lawyers, academics, representatives of the society, other governmental authorities) in the process of development of ethical principles is justified in order to prevent possible perception of self-interest and self-protection, while making sure that judges are not deprived of the power to determine their own professional ethics”. Any statements that the PIC is issuing ‘de facto vetoes on positive evaluations undertaken by the High Qualifications Commission’ are not factually correct, since the PIC has no administrative possibility to influence the results of the assessment process.
Secondly, the very existence of the PIC as a civic advisory body, although questioned by the ODIHR/OSCE legal opinion, is substantiated by Ukraine’s current experience of transitional justice, when the old judicial system is in a critical situation and needs profound reforming. In fact, the level of trust in judiciary amounts to as little as 10%, while only 69% distrust judicial institutions (according to the National public opinion survey, conducted by USAID Fair Justice Project in 2016). According to the World Justice Project Rule of Law Index 2016, Ukraine was ranked 78th out of 113 countries according to the level of implementation of its rule of law requirements and is currently ranked 99th out of 105 countries in judicial independence by the Index of Public Integrity. Therefore, Ukrainian legal system has little in common with judicial systems of developed countries in Europe and worldwide. A similar view is shared by National Legal Advisor at the OSCE Project Co-ordinator in Ukraine Oleksandr Vodyannikov who acknowledges the extraordinary situation at which Ukraine’s judiciary has found itself. Thus, he deems the measures of judicial and non-judicial character aimed at overcoming consequences of a country’s non-democratic or quasi-democratic past (including such a novelty as the establishment of the PIC) appropriate. For this reason, the claims that the PIC’s functioning does not meet the long-standing international standards of judicial independence appear clearly unjustified.
Myth #2: Questionable added value of the Public Integrity Council vis-a-vis the HQCJ
According to the Law of Ukraine “On the judiciary and the status of judges”, the PIC is not an authority in the judicial system. Instead, it is an independent civic body that ensures public accountability of the renewal of the judiciary. The primary goal of the PIC’s establishment consisted in restoring public confidence in the judicial system precisely because it was comprised not by the representatives of incumbent judiciary, but by the civil society, journalists, human rights defenders, legal scholars and practitioners. While the HQCJ makes decisions regarding a judge’s or a judicial candidate’s compliance with the criteria of integrity and professional ethics, the PIC collects relevant information on a candidate and assists the HQCJ in the selection process by carrying out a reasoned assessment of his/her compatibility with the above-mentioned criteria. Thus, the duplication of powers of the PIC and the HQCJ is out of the question, as demonstrated above.
In terms of the added value of the PIC, it has already proven to be a vitally important institution during the Supreme Court competition. Since November 2016, when the PIC was established and the competition began, participation of 51 candidates out of 381 was terminated on the grounds of information set out in the PIC’s conclusions. At the same time, the HQCJ did not have the same track record of impartiality, transparency and commitment to the renewal of the judiciary.
Firstly, as the experience of the Supreme Court competition demonstrates, the HQCJ has endorsed the candidates who had either violated human rights, adopted politically motivated decisions, were judges of Maidan, banned peaceful assemblies or could not explain the origin of their property. In fact, 30 out of 120 candidates for the Supreme Court positions, shortlisted by the HQCJ, fall under these criteria. All of them received a negative opinion from the PIC, which was nonetheless ignored by the HQCJ. For instance, despite public appeals, the HQCJ supported candidacies of Viacheslav Nastavnyi and Serhii Slynko who justified the conviction of the former Interior Minister and now Prosecutor General Yuriy Lutsenko, which was recognized by both the PACE and the European Union as a politically motivated decision. The HQCJ also shortlisted Olga Stupak who could not explain the origin of funds for the purchase of numerous valuable assets, as well as Oleksandr Zolotnikov and Iryna Saprykina who arbitrarily banned peaceful gatherings, etc. But the number of the unscrupulous candidates, shortlisted by the HQCJ, could have been even greater if the PIC had not scrutinized all the candidates and had not offered its judgments of their integrity. Thus, the HQCJ does not seem to be a trustworthy agency for verification of candidates’ background, and hence the PIC’s role is to serve as an additional counterbalance to the HQCJ assessments (even with its solely advisory powers).
Secondly, besides the poor judgments regarding the Supreme Court candidates, in violation to existing regulations, the HQCJ itself disclosed (partially) the judicial dossiers only under the public pressure. Meanwhile, the HQCJ decisions on the candidates have not been published at all, despite the recommendations of the Council of Europe experts to disclose the results of candidates’ assessment. This information should be public, because it composes a part of the candidates’ ranking and should be mentioned in the reasoning of the final decision on recommendation or non-recommendation of a candidate for the judge’s position.
Thirdly, in the course of the competition, some of the HQCJ members were making decisions despite the obvious conflict of interest with regard to candidates they evaluated. For instance, such a situation took place during the consideration of Viacheslav Vapniarchuk’s candidacy by the Criminal Collegium of the HQCJ, when one of the Collegium members, Serhii Prylypko, who has worked with the candidate for a long time, did not declare the conflict of interest and participated in the meeting. Another example is HQCJ’s consideration o judge Viacheslav Nastavnyi’s candidacy in a plenary, when the HQCJ member Taras Lukash did not recuse himself from participation, despite the fact that judge Nastavnyi was a member of the Competition Commission that elected Taras Lukash as a member of the HQCJ.
Finally, the HQCJ predominantly consists of the representatives of the old judicial system, deeply affected by corruption and nepotism. As this investigation conducted by civil society activists shows, a number of the HQCJ members would have received the same negative opinions from the PIC, if they applied for the Supreme Court positions: they also have a mismatch between their life style and the declared income, participated in a decision-making that violated human rights, were involved in the interference into the automatized system of cases distribution, banned peaceful assemblies etc. This makes it hardly possible that all the HQCJ members have been impartial while assessing the Supreme Court candidates with a similar negative track record.
Therefore, these factors underpin the necessity to have in Ukraine such an independent non-judicial body as the Public Integrity Council, which is able to perform civic oversight of judicial appointments and to ensure that representatives of judicial bodies do not abuse their powers while making decisions on judicial carriers.
Myth #3: Members of the Public Integrity Council may be politically biased and may have a conflict of interest
To begin with, none of the members of the Public Integrity Council is politically biased. Two of them – Maryna Solovyova and Natalia Sokolenko – left the political forces they were affiliated with before being elected to the PIC, and afterwards no actions or statements from their side may have potentially given reasons to assume their political affiliation.
Members of the PIC took all possible measures to prevent conflict of interest when deciding on candidates for the Supreme Court. Particularly, information on the existence of conflict of interests with respect to individual candidates was reported by the PIC while distributing candidates for analysis among PIC collegiums and rapporteurs. Moreover, the PIC addressed each candidate under its consideration with a letter asking them to report on the existence of a conflict of interest vis-à-vis any of individual members of the PIC. There was no case recorded when a candidate reported on the existence of a conflict of interest that the PIC did not take into account. Thus, during each PIC’s meeting on the findings and information notices about the candidates, PIC members with a conflict of interest regarding a particular candidate claimed self-disqualifications before each voting, which is reflected in the meeting minutes of the PIC. For instance, PIC member Roman Maselko recused himself from considering the candidacy of the member of High Council of Justice Alla Lesko, because one of the reasons for the negative opinion on Lesko was the information on her consideration of disciplinary proceedings with participation of Maselko. Thus, because of numerous self-disqualifications there were situations when PIC’s conclusions or information notices to the HQCJ were adopted by less than 20 members of the PIC.
Myth #4: Unnecessary exclusiveness of the Public Integrity Council
On November 11, 2016, the election of members of the PIC took place in full accordance with the procedure prescribed by Article 87 of the Law of Ukraine “On the judiciary and the status of judges”. The information on all the applicants, including curriculum vitae, motivation letters and property declarations, was published on the official web-site of the HQCJ. Members of the PIC were elected at a public meeting of representatives of public associations, where the HQCJ members, media, international organizations and donors were present. Before the voting session, each candidate made a brief presentation on his or her intentions of membership in the PIC. Representatives of public associations involved in the election also had an opportunity to pose questions to the candidates. The meeting was broadcasted online. Thus, the adherence to such a transparent process provided for an open inclusive competition at the stage of the PIC’s formation and at the same time allowed to ensure that only trustworthy individuals and organizations will represent the public in the process of judicial renewal.
Regarding the PIC’s daily work, there are also no grounds upon which the allegations of PIC’s exclusiveness can be made. All the meetings of the PIC are held openly so that everyone can participate. Besides that, with the support of volunteers, the PIC launched information portal where all the information about the work of the PIC and its adopted decisions are published.
At the first meeting held on November 23, 2016, the members of the PIC have approved the Rules, an internal document containing regulations that all the members of the Council voluntarily agreed to follow. Article 3 of the Rules stipulates that the members of the PIC in their activities are governed by such values as dignity, justice, human rights and respect for the independence of judges, and carry out their activity based on the principles of integrity, impartiality, transparency, equality of members’ rights and political neutrality. Violation of any of the above-said principles is the reason for exclusion from the PIC. The latter happened when unethical statements on Facebook led to the withdrawal from the PIC of one of its members, Leonid Maslov.
Finally, the Rules of the Public Integrity Council were recognized as the ones that take into account standards of the Council of Europe on independence of judiciary establishment, as stated in the opinion of the Council of Europe expert Diana Kovacheva. The vast majority of the expert’s recommendations on how to deepen the compliance of PIC’s Rules with those standards were taken into account by the Public Integrity Council afterwards.
Myth #5: The Public Integrity Council lacks capacity to access the required information and often relies on doubtful sources
All conclusions of the PIC are based on the information obtained from reliable sources. These sources include data available from the open state registries, the portal of the judiciary of Ukraine, data of the National Agency for Corruption Prevention and the National Anticorruption Bureau of Ukraine, information from candidates’ records, materials of journalist investigations. All the facts that served as grounds for assessing candidates’ non-compliance with the criteria of integrity and professional ethics are set out in the conclusions of the PIC with the reference to the sources of information or in the form of annexes. Sensitive information was delivered to the HQCJ in the form of closed annexes.
In case of any doubts regarding the obtained information, the PIC submitted these data to the HQCJ (please see an example of such an information notice here) with a request for additional verification or clarification of certain circumstances during an interview with a candidate. If the facts mentioned in the PIC’s conclusions were refuted by a thorough clarification from the side of the candidate, PIC’s member initiated withdrawal of such a conclusion.
Besides that, there are some allegations that the PIC does not treat results of its assessment confidentially. However, since the PIC is accountable to the society, it cannot hide the results of its activity, and hence the PIC’s Rules presume the obligatory publication of its conclusions and decisions on judges and judicial candidates. At the same time, it is important to note that the Law separates qualification assessment from the regular assessment of judges, and the PIC is involved only in the first one. Qualification assessment is conducted in two cases: (a) primary assessment as a one-time measure to check a judge’s compliance with his position; (b) assessment of a candidate for the judge’s position in the higher courts. These two conditions negate the need for confidentiality requirement.
Myth #6: Concerns about procedural fairness of a judge’s insufficient representation before the PIC
The OSCE/ODIHR report expresses an opinion that “the evaluated judge should have the right to explain/defend him or herself not only before the High Qualifications Commission, but also during sessions of the Public Council of Integrity”. In fact, the PIC granted judicial candidates a right to defend themselves before the PIC and provide his or her explanations in the electronic form. The candidates also had the right to demand self-disqualification of a PIC’s member on the ground of potential conflict of interest or to dispute the PIC’s opinion before the HQCJ interview with a candidate took place. The PIC members were considering not only objections submitted by candidates to the PIC’s e-portal, but also clarifications handed over to the HQCJ. Thus, in several cases PIC’s opinions were cancelled due to the thorough explanations of candidates, which serves as an evidence that the PIC was fair, open to candidates’ feedback and ready to ensure their sufficient representation before the PIC. This was further fortified by the amendments to the PIC’s Rules in July 2017, giving PIC members the possibility to appeal to a judicial candidate with a proposal to refute or clarify certain information.
To conclude with, these serious claims or reservations regarding the Public Integrity Council are at variance with the facts. It is important that analysis, conducted by international experts, rests also on the factual developments within Ukraine’s judiciary and takes into account its major problems that the judicial reform aims to overcome. Over the past ten months the Public Integrity Council has substantially influenced the judicial perception of its accountability to the society; it already managed to prevent dozens of candidates with explicitly tainted reputation from being shortlisted for the Supreme Court positions and is continuing to actively participate in the last stage of the competition. In view of the above, establishment of the PIC should be considered as one of the most progressive steps of the Ukrainian judicial reform and should be protected rather than constantly challenged by allegations that are not based on substantial grounds, for the sake of a better outcome of the judicial renewal in Ukraine. Moreover, given the progress in the reform with regard to the accountability of judges, which the PIC has made possible, this could be an example for other transitional democracies struggling for the renewal of the judiciary.