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21 August, 2017  ▪  Andriy Holub

Supreme Court selections: Delay in court

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

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 high-profile 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.

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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 integrity 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.

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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.

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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."

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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.

Translated by Jonathan Reilly

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