On November 10th, the President appointed 113 judges of the “new” Supreme Court of Ukraine, which marks the ending of the cornerstone of the judicial reform.
And sadly we have to admit the reform did not happen – at least in the part of the Supreme Court’s renewal.

Why?

Hardly you can call reform a process in which almost 80% of old judges become the judges of the “new” court and a quarter of the winners do not correspond the integrity criteria. Moreover, 60 more candidates have dubious background that had to be thoroughly examined by the judicial governance bodies, but wasn’t.

Among the winners are judges who were engaged in political persecution. Judges who could not justify their wealth. Judges who covered judges of the Maidan. Judges who do not motivate and are not going to motivate their decisions.

There was not “the most transparent contest” either. Some of the materials and procedures were indeed available online. But still, it is not possible to see whether that had any effect on the final result. The High Qualification Commission of Judges with salaries of UAH 225,000 per month and a huge apparatus (around 200 persons) still to this date did not publish motivated written decisions on the integrity of most of the candidates, as it is required by law.

Generally, the process itself reminded the mediocre magic show. At first, the movements were clear and transparent, but at some point a list of 113 people appeared seemingly from nowhere – just like an illusionist pulls out a rabbit from a hat. How did the rabbit get in there – no one still knows.

A spectacular show that lasted for over a year, did not lead to a single desired outcome – the formation of competent Supreme Court of high integrity, as it is required by the Constitution.

How did it happen?

It was always appealing for politicians to have judges under control.

The Administration of the current President that concentrated all the levers of influence on judicial state policy, is not an exception. It is not a coincidence that the author of all the draft laws adopted within the framework of judicial reform from 2015, including amendments to the Constitution, is the President himself.

Certainly, it was necessary to show some progress, first of all, to the international partners of Ukraine. Therefore, the changes to the Constitution in the justice sector looked rather progressive.
But the devil, as always, is in details. Laws and regulations were formulated later in such a way that the political authorities had sufficient levers of influence on the process, yet everything looked like a reform from the outside.

As it turned out, there were two main problems: the composition of the judicial governance bodies directly responsible for the competition, and the lack of detalization of the competition procedures in the law.

There were two judicial councils responsible for the selection to the Supreme Court – the High Qualification Commission of Judges and the High Council of Justice. It is worth noting that both institutions were created and exist in accordance with the Council of Europe standard “the majority of judges elected by their peers”.

The idea behind this standard was to ensure greater independence of the judiciary. However, the implementation of such standard led to questionable, if not outright disastrous, results not only in Ukraine, but also in other transitional democracies. Indeed, it does not make sense to give all the levers of influence within the reform precisely to those judges, who have to be replaced.

The participation of the Public Integrity Council in the process has not changed the picture much. After long discussions and even protests, the High Qualification Commission of Judges opened the necessary documents for the PIC and admitted its representatives to interviews. However, this participation has failed to affect the final outcome significantly. The High Qualification Commission of Judges agreed only with 51 of the 140 negative conclusions of the Public Integrity Council – slightly more than a third.

The final rating was determined by the High Qualification Commission by distributing 1000 points between the contestants, half of which were distributed at full discretion of the HQCJ members.

At the same time, despite the numerous public demands neither the scores for each tested parameter, nor the individual evaluations by the HQCJ were made public. The Commission refused even to reveal how its members voted on overruling PIC’s opinions.

The situation in the High Council of Justice did not look better. Having virtually unlimited possibilities to stop the participation of dubious and dishonest candidates in the competition, the High Council of Justice decided even not examine these facts.

For example, the interview with judge Nastavny, who earlier imprisoned current Prosecutor General Yuriy Lutsenko, lasted only 10 minutes. He was asked one single question.

However, it would be too optimistic to expect revolutionary decisions from the High Council of Justice that has many allies of current politicians among its members. Tetyana Malashenkova, a former lawyer of the “5 Channel”, ran alongside her colleague Oleksiy Malovatsky in Petro Poroshenko Bloc in 2014 parliamentary elections. Other notable HCJ members are the incumbent Chairman of the Supreme Court of Ukraine Yaroslav Romanyuk, who supported Yanukovych’s dictatorship laws of January 16 and lawyer Pavlo Grechkivsky who is suspected of embezzlement of $ 500,000 by the Prosecutor General’s Office, judge Alla Lesko, who helped judges of the Maidan escape responsibility. HCJ head Ihor Benedysyuk, personally appointed by the President, illegally received firearm from him as a reward and probably has Russian citizenship.

The presence of a large number of identified conflicts of interest between members of the High Council of Justice and the candidates is out of question. The president has been repeatedly offered to change the composition of the High Council of Justice at the stage of the changes to the Constitution. Instead, the presidential transitional provisions of the amendments to the Constitution clearly state that the High Council of Justice will remain in the current state until 2019 – exactly when the presidential elections in Ukraine are to take place.

Therefore, despite the fact that everything looked like a competition and was “according to the European standards”, yet again we have received a purely political process of the appointment of judges.

Politically, the majority of politicians’ cronies was appointed. Politically, some “new faces” were added that were needed to show some progress. Of course, in the final composition of the Supreme Court there is a number of people who could win in the honest competition. But, unfortunately, it does not prove that such competition happened.

However, the essence of the reform is not in the details of the procedure or the number of non-judicial candidates in the final list. It is in a change of a principle under which judges take their positions, more precisely – in its absence.

We should have receive the first objective selection for judicial positions. Instead, politicians and the old judiciary preserved the status quo. As a result, tne the vast majority of judges will continue to owe politicians for their careers. Unless it changes, there hardly will be any significant positive changes in the judicial system.

What will happen next?

It is hard to say for sure how the new court will operate.
It will be possible to make final conclusions about the composition of the new court only after seeing the first decisions of its judges – on the election of their colleagues to the administrative positions or as members of the Grand Chamber. And of course, after the first decisions on the merits.

Almost the only hope here is the “new faces” – mostly people from outside the system, who are now actively engaged in the media. If they establish new practices with their principled positions, their decisions and dissenting opinions, there will be a chance for the evolutionary development of the judiciary. Vice versa, if they turn a blind eye on corruption that is very likely to happen – they themselves will immediately become a part of the same old system. Then the reforms will have to be started all over.

Obviously, not much of the promised changes to the selection procedures are made – HQCJ continues to assess judges under the same rules despite big room for improvement. It became evident that almost everybody who was involved in the development of the reform and the selection of judges is okay with a status quo.

The only international partner of Ukraine who had the courage to speak out critically about the results of the competition was the EU Delegation. Back in October, it demanded explanations how judges that lacked integrity entered the final list. But there was no answer. And, the most likely, it will not be any.

Moreover, it is possible that soon there will be a report that says: everything was alright and “according to the European standards”, closing a door for significant further improvements

We have already been through this in 2011, when the judicial reform of Portnov-Yanukovych was also welcomed as “generally progressive”. We also remember where it took us.

Unfortunately, neither the “European standards” nor the “improvements” on paper are what we are looking for. Ukrainians are terribly tired of injustice. And if they does not receive it very soon from the state, they will begin to set themselves – the way they imagine it.

To avoid this, we need to rethink our approaches to what we call “judicial reform.” At least, it is necessary to improve the selection and disciplinary procedures significantly, as well as change the composition of the judicial governance bodies. How to do this exactly is a subject of separate complex discussion.