2.1. Independence of the judicial system
The judicial system in Ukraine is frequently at the center of political and corruption scandals. This affects the overall confidence in the court on the part of the population. According to recent opinion polls, only 27% of professional lawyers trust the court, and among the public, this figure is even lower — 10%.
One of the important roles in such a low confidence rating was played by problems with ensuring the independence of the judicial system and judges. Only 6% of respondents agree that the courts in Ukraine are independent and are not influenced by politicians, authorities, oligarchs, etc. Among lawyers, this figure is slightly higher — 9%. Judges themselves rate the independence of the judicial system in Ukraine by an average of 5-8 points out of 10 (63% of respondents assessed this range). Only 1% of judges believe that the courts are completely dependent, and 9% believe that they are completely independent.
The problem of ensuring the independence of judges and the judicial system is complex and requires a detailed study of every aspect of it.
1) Selection of judges
Full-fledged selection of judges in Ukraine has not been conducted for about 2 years. Because of this, the shortage of judges is constantly increasing, and the average workload on current judges is growing. In November 2019, the old composition of the HQCJ was dissolved. However, due to problems with the formation of the selection commission, the new composition of the body has not been appointed as of September 2021. The main reason was the Regulation on the Competition, approved by the HCJ. It allowed the HCJ not to consider the decision of the selection commission, which invalidated the competition procedure as a whole. As a result, international partners refused to delegate their representatives to the commission and the competition was blocked. Because there is no HQCJ, the average staffing of courts in Ukraine is 74%, 1,867 seats for judges are vacant, and some local courts have stopped working altogether due to a shortage of judges. The average workload per local court judge is 700 cases and in some courts more than 2000 cases. Considering the consequences and reasons for the long pause in the work of the HQCJ, the statements of the HCJ that low staffing of courts is the main problem not only of the judiciary but also of the country as a whole seem rather cynical.
The legal implementation of the procedure for selecting judges is at a high level, but there are some problems with its implementation in practice. The experts interviewed by us give a positive assessment of the current procedure for selecting judges, especially in terms of selecting judges to high courts. They believe that the procedure for selection to local courts should envisage the same standards that are envisaged in the procedure for selecting to higher courts (in terms of conducting psychological tests and integrity checks).
At the same time, the implementation of legislative provisions in practice has several shortcomings. This includes, for example, the unwillingness of the HQCJ to consider the public's position. Thus, when selecting judges to the Supreme Court in 2019, the HQCJ did not consider the negative conclusions of the PIC regarding 15 judges and as a result, they won the competition. Among them were those who, in the opinion of the public, made illegal decisions against the participants of the Revolution of Dignity or, for example, interfered with the operation of the automated system for distributing court cases. If we consider all the competitions, 44 candidates who received negative conclusions from the PIC during the competition became judges of the Supreme Court.
Despite these challenges with the procedure for selecting judges, there are positive aspects that experts point out. An indisputable positive thing was the procedure for selecting judges for the HACC. It was conducted at a high level and did not allow candidates who did not meet the integrity criteria to pass the competition. A decisive role in the selection was played by a specially created Public Council of International Experts (PCIE), which, like the PIC, participated in the competition. However, the key difference between them was the capability of the PCIE to veto the decision of the HQCJ. As a result, 42 candidates out of 113 were excluded from the competition due to the work of the PCIE because they did not meet the integrity criteria.
2) Qualification assessment of judges
In 2016, the procedure for mandatory qualification assessment of all judges began. It was introduced to test judges' integrity, competence, and professional ethics. The main task of the assessment was to clear the judiciary of persons who do not meet the specified criteria.
The qualification assessment was not completed. It was stopped along with the selection of judges due to the absence of the HQCJ. According to the HCJ, another 2,132 judges did not pass the mandatory qualification assessment. Despite this, there are sufficient grounds for assessing this procedure.
Mandatory qualification assessment of judges showed complete inefficiency. The number of judges who were dismissed based on its results is simply scanty, and the procedure itself contained several critical shortcomings. As of April 2019, 2,253 out of 2,409 judges successfully passed the assessment (93.5%). The remaining 156 judges were recommended for dismissal, but only 15 of them were eventually dismissed (0.6%). According to the expert community, the reasons for the low efficiency of qualification assessment are:
- rapid pace of interviews (on average, 320 per month);
- not difficult enough anonymous written testing (only 0.2% of judges did not pass it);
- opaque assessment (written works of judges and assessments based on criteria were classified);
- consideration of cases by members of the HQCJ who have a conflict of interest and themselves committed actions for which they may be dismissedetc.
Cooperation of the HQCJ with the public during the qualification assessment failed. The reason for this was the unwillingness of the HQCJ to consider the conclusions of the PIC. In particular, the HQCJ adopted groundless changes to the regulations of its work, which actually allowed it not to consider the conclusions of the PIC. It even became the subject of a legal dispute that was won by the public. However, during the court proceedings, the HQCJ managed to evaluate 2,500 judges without the corresponding conclusions of the PIC. As a result, PIC members withdrew from the qualification assessment process.
Cases of its circumvention neither contributed to the effectiveness of the qualification assessment. Thus, in one day, 34 judges of the KAC (more on this court below) did not come to take the exam due to a sudden simultaneous illness. As a result, they never participated in the qualification assessment.
An interesting opinion on the qualification assessment procedure was expressed by one of the experts we interviewed. In particular, he believes that the assessment procedure in this format cannot be effective in Ukrainian reality. After all, half of the members of the HQCJ are made up of judges or retired judges, and they are not inclined to make negative decisions about their colleagues.
3) Punishment, removal from office, and dismissal of a judge
First of all, it is necessary to mention two types of dismissal of a judge: under general circumstances and special circumstances. In the first case, the judge resigns voluntarily, retires, or is dismissed due to ill health. In the second case, the dismissal is due to disciplinary misconduct, or as a result of a qualification assessment, or due to a breach of eligibility requirements. The two types of dismissal have different consequences. For example, if a judge retires (which is possible only after 20 years of service), the right to certain bonuses is retained, including a lifetime monthly cash benefit. In other cases, judges lose this right. Given this, judges mostly seek to end their service by voluntary resignation.
Judges often abuse their right to resign, even when there are special circumstances for their dismissal. The HCJ, in turn, actively assists judges in abusing this right. For example, several judges who had to be dismissed under special circumstances (failure to pass a qualification assessment) applied for voluntary resignation and demanded that it be granted. Instead of considering the issue of dismissal due to failure to pass the qualification assessment, the HCJ simply accepted the applications. This provided the judges with a one-time payment, a monthly cash reward, and lifetime pay. Due to such actions of the HCJ, the judges did not face negative consequences (including the ban on holding the position of a judge in the future), while the national budget spends EUR 942 per annum to maintain them.
Resignation of judges is the most common reason for the dismissal of judges, which is applied by the HCJ even if there are disciplinary cases against judges. Notably, there are cases when a judge’s application for the resignation was satisfied even following committing severe crimes. Official statistics show that out of 281 dismissed judges on all grounds in 2020, 249 judges (88.6%) were dismissed under general circumstances. Voluntary resignation is used even when disciplinary cases are pending against the judges. When a judge’s resignation is satisfied despite a pending disciplinary proceeding, the HCJ allows such a judge to avoid liability.
One of the most high-profile cases involving the resignation of a judge who had to be dismissed under special circumstances is the case of Zhytomyr judge Viktor Voloshchuk. He was driving under the influence of alcohol and killed a 21-year-old motorcyclist. However, instead of dismissing the judge for a disciplinary offense, the HCJ satisfied the judge’s resignation 20 days before the verdict in the case. As a result, the judge received almost EUR 10,000 in severance pay and a pension of EUR 16,000 in 2020.
The described practice of granting judges’ resignation is made possible by shortcomings in the legislation. For example, the phrase “has the right'' in the Law on the HCJ, does not mandate the HCJ to stop the resignation process, but only grants the HCJ the right to suspend the issue of a judge’s resignation for the duration of a disciplinary proceeding or a motion by the HQCJ that the judge is unfit for the office held. But instead of exercising its right, the HCJ ignores disciplinary proceedings and decides to grant resignations, claiming that they are forced to make such decisions due to the imperfection of the law.
4) Independence of the judiciary (institutional independence)
Opinions of judges and experts on the independence of the judiciary are dramatically different. Recent polls and statistics suggest that judges see institutions that seek to reform the judiciary, including the public and parliament, as the greatest threat to their independence. In addition, most judges do not believe that their colleagues and other members of the judiciary are interfering in their activities. The expert community, on the other hand, believes that internal influence is the greatest threat to judicial independence. Here are the most common ways of influence, according to experts.
- Pressure from the president of the court.
One of the most common ways to influence a judge is pressure exercised by the president of the court. This practice is quite widespread and is often manifested in the form of “friendly” advice, recommendations, requests, or instructions. Such things are often not perceived by judges themselves as attempts to put pressure on them—according to public opinion polls, "judges tend to tolerate illegal requests/demands that several from representatives of the judiciary or not even perceive them as interference." Yet, such informal influence is perhaps the greatest threat to judicial independence.
The legislation does not provide much opportunity for formal pressure on judges by court presidents, as the latter are virtually deprived of leverage. In practice, the methods of influence are not very significant, but even they are sufficient to hinder effective performance and have a significant impact. For example, the president of the court can: obstruct the registration of vacations, business trips or studies; interfere with the judge's computer system; exert psychological pressure; fail to appoint secretaries of the meeting; provide the worst office, etc.
A striking example of this practice is the case of Judge Serhii Bondarenko, who received direct instructions from the president of the court on how to rule on a particular case. After the "wrong" decision was made, Mr. Bondarenko received threats from the court president, which can be heard on the published audio recording.
- Pressure from peers
A judge is often pressured by colleagues when there is already pressure by the president of the court. A common tool of influence is the decisions of judicial governance agencies which are binding. For example, according to the Law of Ukraine “On Judiciary and the Status of Judges,” a meeting of judges of a particular court may determine the specialization and workload of individual judges. It is this mechanism that can be used to exert pressure, impose an extremely heavy workload, or drastically change the specialization of individual judges.
This is what happened to the whistleblower judge Larysa Holnyk, whose specialization was purposefully changed, and she was subjected to an extremely heavy workload due to her reporting corruption in the Oktiabrskyi court of Poltava.
- Pressure from the HCJ
The way that the HCJ pressures judges are usually bringing them to disciplinary liability. To accomplish this, fictitious complainants are used to writing commissioned complaints against judges who demonstrate independence. They are then actively considered by the HCJ and a decision is made to bring the judges to liability.
The scheme applied to judges who facilitated the investigation of Kyiv Administrative Court judge Pavlo Vovk.
The case of KAC President Pavlo Vovk is an example of a flagrant violation of the independence of individual judges, judicial governance agencies, and the judiciary as a whole. Pavlo Vovk is accused of trying to seize state power. During the period from 2019 to 2020, detectives of the National Anti-Corruption Bureau (NABU) managed to gather the information that may indicate the intervention of Vovk and his associates in the activities of the HCJ, HQCJ, CCU, NACP, and other authorities of Ukraine. The recordings of conversations between the chairman of the court and his colleagues contain evidence: providing instructions to individual judges on specific cases; bypassing qualification assessment; blackmail of heads of state bodies for closing cases; filing of false claims; recognition of their behavior as "political prostitution,” etc. However, the biggest story was Vovk's conversation with his deputy, in which they discussed the prospects of satisfying the lawsuit to recognize the absence of a coalition in Parliament, which was the basis for dismissing the Parliament “to get back at the incumbent authorities.”
In the described case, the HCJ defended judge Vovk even after the recordings of the judge's conversations were published in the media. The HCJ refused to grant the request to remove the KAC president from office, which allowed him to continue to administer justice. The HCJ made this decision in a clear conflict of interest, as some HCJ members were friends with Vovk, and some were even involved in the case.
At the same time, the HCJ brought judges who allowed bugging Vovk’s office to disciplinary liability, and the same thing happened to a judge of the High Anti-Corruption Court who extended the investigation and decided on the forcible summoning of Vovk.
- Disciplinary liability of judges
The institution of disciplinary liability is widely used to put pressure on a judge not only by the HCJ, but also by the participants in court cases before the judge. 52% of judges surveyed agree that lawyers and prosecutors use the institution of disciplinary liability to put pressure on them. At the same time, 3% of respondents indicated that a certain decision was actually influenced by disciplinary complaints.
It is due to the large number of disciplinary complaints that the HCJ has an excessive workload. For example, in 2020, the HCJ considered 13,425 disciplinary complaints (an average of 36 complaints in one day, including holidays and weekends). As a result, only 404 disciplinary cases were opened (on 3% of complaints), and 129 decisions were made to bring 141 judges to disciplinary liability.
According to statistics, the HCJ does not apply harsh reprimands to judges. In 2020, they commonly applied warnings (in 51% of cases), reprimands (in 19% of cases), severe reprimands (in 15% of cases), but only 14 judges were dismissed based on the results of disciplinary complaints (9% of cases considered).
Despite the rather large volume of disciplinary complaints, the expert community cites several shortcomings in the procedure of disciplinary liability, which cause doubt concerning the objectivity and impartiality of HCJ decisions:
- Delays. Despite the statutory deadlines for disciplinary proceedings (60 days from the date of receipt of the complaint), it is almost always violated. The terms of consideration dependinggrantThe on the will of the specific HCJ member, for example, some cases may be considered for years and others for a month. This practice is widespread due to excessive discretion in determining the time limit for reviewing a complaint and the lack of liability for its violation.
- Non-uniform practice. HCJ’s disciplinary practice is very diverse. In similar or even identical situations, the HCJ’s decisions may be entirely different. It is not uncommon that such decisions would have political motives. For example, the HCJ refuses to open a disciplinary case against a judge who issued an unfounded search warrant for a public activist. At the same time, it punished the judge who allowed the search of the KAC president’s office in the case of seizure of state power.
- Violation of the complainant's rights. The Law on the HCJ clearly defines the complainant's rights, including the right to inspect the case file. However, the HCJ artificially restricted this right of the complainant by not providing them with copies of the minutes and technical records of its meetings. The HCJ explains its decisions by its Rules of Procedure, which are effectively contradictory to law. However, the greatest violation of the complainants' rights is the restriction of their right to appeal against HCJ decisions. According to legal provisions, decisions of the HCJ’s Disciplinary Chamber can be appealed by the judge involved and the complainant, but only in cases when the Disciplinary Chamber itself allows it. It is completely absurd that the possibility to appeal against an agency’s decision is ruled by the same agency that made this decision. This also affects the statistics of appeals, in particular, in 2020, out of 89 complaints against the decision of the Disciplinary Chamber, only 20 (22%) came from complainants. All the other complaints were filed by judges (67 complaints) and prosecutors (2 complaints).
- Violation of publicity. Previously, all HCJ meetings were broadcast online, but in November 2019, the HCJ adopted amendments to its Rules of Procedure, which stipulate that meetings may be broadcast only with the consent of all parties to disciplinary proceedings. These changes effectively led to the cancellation of broadcasting, as it is unlikely that a judge prosecuted will grant permission to broadcast the case against them. In addition, there are cases when disciplinary proceedings have only one party—a judge in respect of whom the HQCJ has issued a recommendation for dismissal or appointment. The situation further deteriorated with the onset of the lockdown, as restrictions on the physical presence of third parties at the meeting came into force. There were cases when journalists were not allowed to attend HCJ meetings due to allegedly exceeding the allowed number of people in the room, although this was not the case. In addition, according to the public, the HCJ is a systematic violator of the Law on Access to Public Information, as it does not publish open data and fails to provide the requested information for no good reason. Activists have to constantly challenge such HCJ decisions in courts.
2.1.2. Corruption prevention in the judiciary
A recent survey of the public, businesses, and experts conducted by the NACP has revealed that the courts are the second institution in the country (after customs) that is considered the most corrupt. All three groups have rated сourt corruption at +/- 4 points out of 5 (where 5 means that corruption is widespread). Another public survey has confirmed these results: 62% of respondents believe that corruption in the courts is increasing, 64% consider that bribery is a common practice in Ukrainian courts, and 72% think that the one who has more money wins.
Despite such survey results, the statistics on bringing judges to justice are somewhat different. According to the NABU, in 2020, only nine judges were declared suspected of committing a corruption crime, while only two were convicted. As of July 2021, only 4 judges were convicted by the court.
Judges, unlike other officials, are required to submit three types of declarations instead of one. In addition to the declaration of property, judges also submit declarations of family relations and integrity. The NACP verifies judges' property declarations, and a judge may be brought to administrative or criminal responsibility for lying. At the same time, judges do not bear any responsibility for lying in the other two declarations (although the law provides for disciplinary liability).
Misinterpretation of the HCJ's law results in lacking the responsibility of judges for lying in declarations of family relations and integrity. The fact is that the HCJ refuses to verify these declarations (even if there are signs of apparent lies) and indicates that the HQCJ is supposed to perform this function. However, judges do not bear any responsibility since the HQCJ has not been functioning for about two years.
As a result, the effectiveness of declarations of family relations and integrity is zero. Official statistics as well experts and judges we interviewed have confirmed it. In 2020, no judge was brought to justice for failing to provide a declaration or indicating false information. Although even in the Register of Declarations, one can find examples of their late submission, as the judges have noted.
The mechanism for holding judges accountable for lying in property declarations is more effective but not the whole way. First, the HCJ groundlessly defends judges who lie in their declarations. Secondly, the HCJ refuses to bring judges to disciplinary responsibility for violating the declaration rules without complete verification of the declaration from the NACP, even when the facts of lies in the declarations are established and based on the results of the NABU investigation.
The cases of judges who very clearly violated the declaration rules are illustrative. For example, one judge did not indicate the real estate he owned in his declarations, while another judge “forgot” to indicate information about his wife in his declaration. The violations were so evident that the HQCJ recommended the dismissal of these judges. At the same time, the HCJ indicated that the decisions of the HQCJ were unreasonable and therefore decided not to dismiss these judges.
2) Conflict of interest
Two bodies deal with the resolution and prevention of conflicts of interest in the activities of judges: the Council of Judges of Ukraine (CJU - judicial self-government body) and the NACP. The powers of these bodies are enshrined in various laws. The Law of Ukraine on Prevention of Corruption establishes the powers of the NACP to monitor and control compliance with the legislation on the resolution and prevention of conflicts of interest, as well as to provide explanations, methodological and advisory assistance on these issues. At the same time, the Law of Ukraine on Prevention of Corruption stipulates that the resolution of conflicts of interest can be regulated by other specialized laws. The specialized "On Judiciary and the Status of Judges" Law of Ukraine empowers the CJU only to monitor compliance with the requirements for resolving conflicts of interest in the activities of judges and other representatives of the judiciary, as well as to resolve issues related to resolving conflicts of interest in the activities of these persons.
In fact, the powers of these two bodies overlap. On this basis, a conflict that arose between the NACP and the CJU continues to this day. The source of the conflict is the authority to provide individual explanations about the presence or absence of a conflict of interest. The NACP believes that only they have the right to provide explanations regarding conflicts of interest and that the CJU has illegally appropriated new powers. At the same time, the CJU believes that only they, as a judicial self-government body, have the authority to resolve conflicts of interest in the activities of judges.
The reason for this conflict was the case of the head of the district court, who voted for himself when being elected to the position of Head of the court. In this case, the NACP identified a conflict of interest, asked the judge to provide explanations, and subsequently drew up an administrative protocol. However, the judge was never brought to justice, as the CJU provided explanations on his request about the absence of a conflict of interest. The NACP believes that the explanations provided by the CJU allow judges to avoid responsibility.0
At the moment, the Parliament has registered a bill that proposes to resolve the conflict in favor of the CJU.
3) Codes of ethical conduct
In their professional activities, judges use the Code of Judicial Ethics, adopted in 2013 by the main judicial self-government body - the Congress of Judges of Ukraine. This code is based on a number of international documents, including the Bangalore Principles of Judicial Conduct. In 2016, the CJU, together with international partners, developed detailed comments to the Code. They contain a detailed description of each article of the Code, analysis, and examples of its application.
Despite the relatively high quality of the Code of Judicial Ethics, assessments of its application are contradictory. On the one hand, the experts and judges we interviewed positively assess the Code, while pointing out that judges are increasingly taking its provisions into account in their activities. On the other hand, the HCJ very rarely holds judges accountable for its violation, and in cases of prosecution, the practice of the HCJ is ambiguous and politically dependent.
2.1.3. The HCJ performance
Given the extended powers, the HCJ can be considered the main body in the judicial system of Ukraine. The integrity of the judiciary, its effectiveness, and accountability depends on the activities of the HCJ. However, instead of cleaning up the judiciary from dishonest judges, the HCJ often makes questionable, politically motivated decisions. Recently, the activities of this body have been so much connected with scandals, corruption, and violation of the law that the public keeps counting failures of the HCJ.
The activities of the HCJ described in this report are only a small part of how the corruption of this body manifests itself. The public has repeatedly noted that the main issue is the members of the HCJ and the procedure for its appointment. For example, the current members of the body were appointed with significant violations of laws. The public analyzed all members of the HCJ and found conflicts of interest in decision-making, dubious incomes, problems with declaration, and so on. Two members were elected in violation of the Constitution, as they hold this position for two consecutive terms. As a result of a poor-quality competition in the HCJ, its members were persons with questionable integrity.
The effectiveness and independence of the entire judicial system in Ukraine depend on integral and professional members of the HCJ. That is why, in July 2021, a law was adopted, which, among other things, is designed to clean up the HCJ and, if necessary, elect new members. The expert community has high hopes for the adopted law and notes that it may be the beginning of major changes in the judiciary. Although representatives of the judiciary have already tried to disrupt the implementation of this law.