Triangle of judicial power. Why are there no internal leaders in the reform?

A fair trial is the main guarantee that Ukraine will become European. Only an independent court decision can protect a citizen from the arbitrariness of an official, an investor from possible business losses, and the state in general from the risk of authoritarianism.

But the success of the judicial reform depends on how stably and proactively the key institutions of the judiciary work – the High Qualifications Commission of Judges of Ukraine (HQCJU), the High Council of Justice of Ukraine (HCJU) and the High Court of Ukraine (HCU). However, the High Qualification Commission of Judges of Ukraine (HQCJU) is currently without a chief executive. The High Council of Justice of Ukraine (HCJU) is in no hurry to consider high-profile disciplinary complaints against the "wolves" of the system. And the Grand Chamber of the High Court of Ukraine (GCSCU), as the only possible tool for annulment of the decisions of the representatives of the High Council of Justice of Ukraine (HCJU), has already created a precedent both for their annulment and for the lack of reaction to the non-opening of disciplinary proceedings where it was necessary.

What is the result of the interaction of these bodies today? Why doesn't each of them aspire to leadership? How does this affect the judicial system?

The High Qualification Commission of Judges of Ukraine (HQCJU) is without its chairman and at low speed

The High Qualification Commission of Judges of Ukraine (HQCJU) – the first important body that ensures the purification of Ukrainian judges – was left without its chairman a month ago. At the end of March, the judge of the Kyiv Court of Appeals, Roman Ihnatov, resigned from both the post of chairman of the High Qualification Commission of Judges of Ukraine (HQCJU) and a member of the HQCJU. "There was no influence or pressure on him during the submission of the application," Ihnatov summarized.

Throughout his tenure in office, Ihnatov was followed by a trail of stories about his alleged Russian citizenship. In short, its essence, which we have written about several times, is that after the collapse of the USSR, Roman Ihnatov worked as a prosecutor in Russia. But the conclusions of the special commission under the High Qualification Commission of Judges of Ukraine (HQCJU), which sent requests to the special services, were in favor of Ihnatov.

"Ihnatov directly said that he will not leave his post until at least June," says one of the members of the High Qualification Commission of Judges of Ukraine (HQCJU). – But he lost everything: both reputation and authority. He abandoned us all. One cannot help but be angry at such actions on his part."

Currently, the High Qualification Commission of Judges of Ukraine (HQCJU) has a lot of work to do, and it should not stop: competition for the High Anti-Corruption Court of Ukraine and competitions for the first and appellate courts. The question is whether the representatives of this state body will have time to implement their plan by November of this year, as planned, because the six-year term of operation of the Public Council of International Experts ends in November, and the deputies are in no hurry to extend it.

Taking into account the fact how many problems have accumulated in the system during the non-functioning of the commission since 2019, the speed of work of the High Qualification Commission of Judges of Ukraine (HQCJU) is the main challenge.

At the same time, the story of communication between the commission and the National Anti-Corruption Bureau of Ukraine (NABU) continues. The High Qualification Commission of Judges of Ukraine (HQCJU) faces the task of creating an internal analytical department and gaining access to all registers, which the commission still does not have. According to the latest public information, the National Anti-Corruption Bureau of Ukraine (NABU) – and the bureau is not obliged by law to be distracted by the needs of the High Qualification Commission of Judges of Ukraine (HQCJU) – has continued informal cooperation with the HQCJU. However, with a very low capacity, which critically affects the speed of qualification evaluation of judges and, obviously, will affect the selection of judges in all instances, if the High Qualification Commission of Judges of Ukraine (HQCJU) delays the creation of an analytical unit within the commission.

Against the background of this commission, a new leadership should be elected. And if during the first three days after the dismissal of Roman Ihnatov, everyone had plenty of enthusiasm, now it has decreased. Those willing simply do not have the required number of votes to nominate their candidacy. Since either the deputy or the chairman must be a judge, the candidates for these roles in the commission are discussing Ruslan Sydorovych (not a judge), Serhii Chumak (judge), Ruslan Melnyk (not a judge), Oleh Koliush (judge) and Roman Sabodash (not a judge).

In the future, the situation with the head of the High Qualification Commission of Judges of Ukraine (HQCJU) may be as follows: he will simply not be there and will remain an eternal temporary "executor of duties". Or the candidates for the head of the state body will begin to be imposed from the government offices. If they themselves cannot come to an agreement.

What prevents the High Council of Justice of Ukraine (HCJU) from considering high-profile disciplinary cases?

The second important body for cleaning the judiciary from unscrupulous judges is the High Council of Justice of Ukraine (HCJU). The representatives of the High Council of Justice of Ukraine (HCJU), with whom we spoke for the preparation of this material, are unanimous in the fact that there is no political influence on the High Council of Justice of Ukraine (HCJU). "The head of the High Council of Justice of Ukraine (HCJU) Hryhorii Usyk does not systematically communicate with the president's office, and when this happens, communication is quite tense," says our source in the High Council of Justice of Ukraine (HCJU). –  As far as I know, members of the High Council of Justice of Ukraine (HCJU) Salikhov and Burlakov were introduced to the former deputy head of the president's office, Andriy Smirnov, but he was fired. At the same time, both Burlakov and Salikhov are in conflict with Usyk. They do not succeed in "arranging" and do not try. But there is a problem with collegial decisions, because there is no permanently formed majority. This also affects the consideration of disciplinary complaints against judges."

Disciplinary complaints go to one of the chambers of the High Council of Justice of Ukraine (HCJU), and then the members of the council decide whether this judge should be prosecuted. Liability in this case is not only dismissal, but also other forms of it, such as, for example, non-payment of allowances.

"Many people did not want the disciplinary practice to work. During these years, while the complaints were not considered and there was no High Qualification Commission of Judges of Ukraine (HQCJU), everyone got used to not being responsible for anything at all. There are about 14,000 disciplinary complaints. Since November, they began to be considered, it is mostly spam: "The judge made a decision not in my favor, punish him," says an interlocutor in the High Council of Justice of Ukraine (HCJU).

However, the regulation on the work of the High Council of Justice of Ukraine (HCJU) contains a clause that deals with so-called priority complaints, that is, those that must be considered as a matter of priority. Currently, this point is not working well, because, for example, public organizations that monitor judicial reform have been raising the issue since January of this year that the High Council of Justice of Ukraine (HCJU) did not consider complaints against the judge of the Makariv Court, Oleksiy Tandyr, who is accused of a fatal road accident. And only on April 24, the Second Disciplinary Chamber of the High Council of Justice of Ukraine (HCJU) made a unanimous decision to dismiss the judge. Now the entire council must vote for this decision and support or not support it. The decision became an almost remarkable event, and should have been a regular thing in the work of the High Council of Justice of Ukraine (HCJU).

And the matter is not only with the judge Oleksiy Tandyr, but also with the former head of the High Court of Ukraine (HCU) in the name of Vsevolod Knyazev, who is accused by anti-corruption authorities of taking a bribe of about three million dollars. During all this time, with the tacit consent of the High Council of Justice of Ukraine (HCJU), he receives a salary of hundreds of thousands of hryvnias. And the case is also with the former head of the District Administrative Court of the City of Kyiv (OASK) Pavlo Vovk and his numerous team, whose cases are also in the High Council of Justice of Ukraine (HCJU). Without considering them for so long, what kind of signal does the new allegedly high-quality and honest state body send to the system?

"At the same time, judicial reform is a large system consisting of many decisions. It cannot and should not be reduced only to specific names and cases, the decision of which will supposedly change everything, and then protect against possible repetitions," explains a source in the High Council of Justice of Ukraine (HCJU).

And yet, what prevents the members of the High Council of Justice of Ukraine (HCJU), selected by competition, from voting in high-profile cases? Judicial solidarity? Money? Impunity? Or fear of the omnipotence of Pavlo Vovk and Co.? According to information from the public organization "Avtomaidan", at the beginning of this year, the High Council of Justice of Ukraine (HCJU) opened a case against judge Pavlo Vovk. Tetiana Bondarenko, a member of the High Council of Justice of Ukraine (HCJU), who reports on this case, identified it as a priority. But judge Pavlo Vovk sued her and wants Bondarenko's actions in prioritizing the consideration of the complaint to be declared illegal.

We addressed the head of the High Council of Justice of Ukraine (HCJU) Hryhoriy Usyk with these questions and with a request to explain how to settle issues with disciplinary complaints in high-profile cases, but we have not received an answer so far.

Unfortunately, the members of the High Council of Justice of Ukraine (HCJU), who do not submit complaints regarding obviously high-profile cases to priority consideration, do not bear any responsibility for this.

The position of the Grand Chamber of the High Court of Ukraine (HCU), which can cancel the decision of the High Council of Justice of Ukraine (HCJU)

"In disciplinary cases, the High Council of Justice of Ukraine (HCJU) acts as a "court of first instance". And the Grand Chamber of the High Court of Ukraine (GCSCU) – as an "appeal." This ensures equality, so that the judge can defend himself if something goes wrong," says one of the members of the High Council of Justice of Ukraine (HCJU).

Currently, there is a case where the judicial practice regarding the disciplinary punishment of a judge has been reviewed. That is, before that, the sanctions applied by the High Council of Justice of Ukraine (HCJU) were considered by the Grand Chamber of the High Court of Ukraine (GCSCU) according to one scenario. "However, judicial practice must be stable. And the High Court of Ukraine (HCU) should ensure it, says an interlocutor at the High Council of Justice of Ukraine (HCJU). – It cannot be the case that yesterday the sanctions were interpreted in one direction, then people changed and began to interpret them differently. This happens in the executive branch, but it cannot happen in the courts. Now we are talking about the fact that there will be our high-profile decisions, and then these sanctions can be revised."

Here, of course, it is logical to mention that the High Council of Justice of Ukraine (HCJU), which itself has not made any high-profile decision, is too early to transfer all responsibility to the Grand Chamber of the High Court of Ukraine (GCSCU). However, let's pay attention to already created precedents.

One of the decisions referred to in the High Council of Justice of Ukraine (HCJU) concerns Olha Stupak, a judge of the Civil Court of Cassation within the High Court of Ukraine (HCJU). In 2018, lawyer Roman Maselko (who is now a member of the High Council of Justice of Ukraine) filed complaints against Judge Olha Stupak with the High Council of Justice of Ukraine (HCJU). That complaint was about her failure to confirm where she got the money to buy the BMW X5 and her failure to declare the period and right of occupancy of the home. In addition, "the judge's mother-in-law bought a house in Stoyanka village for UAH 1,800,000, but she received these funds from the judge's husband's account, who additionally transferred almost UAH 750,000 to the seller."

In 2021, the Second Disciplinary Chamber of the High Council of Justice of Ukraine (HCJU) issued a decision not to bring the judge to disciplinary responsibility and to terminate the disciplinary proceedings. Because, as the council notes in its decision, if in 2020 the Constitutional Court recognized the articles on unreliable declaration as unconstitutional (which was accompanied by protests in response to the actions of the Constitutional Court of Ukraine (CCU), then there is no need to consider the case. Seriously?

After that, Maselko expectedly turned the Grand Chamber of the High Court of Ukraine (GC SCU). But at the end of last year, the Grand Chamber of the High Court of Ukraine (GCHC) decided to leave unchanged the decision of the Second Disciplinary Chamber of the High Council of Justice of Ukraine (HCJU). However, in the Grand Chamber there is a separate opinion of seven judges on the decision regarding Judge Olha Stupak.

In particular, it states: "In our view, the Grand Chamber should not have agreed with the conclusions of the High Council of Justice of Ukraine (HCJU) ... but should have pointed out that in view of the information (the decision of the National Agency on Corruption Prevention (NACP) ... materials of the pre-trial investigation... information on the movement of funds in the accounts of the judge and her family members, tracking data of mobile phone operators of the phone number of the judge and her mother-in-law)... Thus, the representatives of the High Council of Justice of Ukraine (HCJU) should provide an assessment of such information and record it in the disputed decision. Representatives of the High Council of Justice of Ukraine (HCJU) should not limit themselves to the conclusion that the correctness of filling out and completeness of the declaration is checked by the National Agency on Corruption Prevention (NACP), and the criminal case, in the framework of which a pre-trial investigation was conducted and facts that negatively characterize the judge were found, was closed."

What really needs to be paid attention to is that part of the Grand Chamber of the High Court of Ukraine (GCHC) believes that the facts regarding Stupak should have been taken into account, even though the case was closed. But it was closed by a rather controversial decision of representatives of the National Agency on Corruption Prevention (NACP)! It is too early to conclude that this complaint will become a precedent for the rest of the disciplinary complaints that are gathering dust in the High Council of Justice of Ukraine (HCJU) regarding other judges. But for some reason this is something that the High Council of Justice of Ukraine (HCJU), and partly the High Council of Justice, fear. "In such a case, it is expected that the reform will go round and round, where the High Council of Justice of Ukraine (HCJU) dismisses a judge, who goes to the High Court of Ukraine (HCU), which cancels the decision of the High Council of Justice of Ukraine (HCJU). And then the complaint goes back to the representatives of the High Council of Justice of Ukraine (HCJU)," the council says.

"However, the Grand Chamber intervenes in the decision if the procedure is violated or if the decision is clearly arbitrary. There is no conspiracy to somehow deliberately make decisions that would contradict the decisions of the High Council of Justice of Ukraine (HCJU). What's more, the members of the council must also clearly motivate their decisions regarding judges," the High Court countered.

In addition, Judge Stupak herself currently works in the Grand Chamber of the High Court of Ukraine (GCSCU). Last December, colleagues of the Civil Court of Cassation delegated it to the High Court. It also decides on disciplinary complaints of other judges.

And you and I remember that several legislative initiatives regarding the Grand Chamber of the High Court have been discussed since last year, which, in particular, may reduce the number of its members (which will benefit the political authorities). However, as our sources assure us, there is currently no governing majority in the Grand Chamber of the High Court of Ukraine (GCSCU), although there was a rotation there after the scandal with Knyazev. Therefore, let's carefully watch our hands both in the High Council of Justice of Ukraine (HCJU) and in the Grand Chamber of the High Court of Ukraine (GCSCU).

At the same time, on April 4, the High Court of Ukraine (HCU) issued another decision, which is not related to disciplinary complaints, but is no less interesting. It concerns judge Olena Shulika, who went on vacation to Crimea in the summer of 2014, and to Russia in 2014, 2015, 2016, 2017 and 2019, because her grandfather lived there. It is because of these circumstances that in December of last year the High Council of Justice of Ukraine (HCJUU) issued a decision on "refusal to submit to the President of Ukraine an application for her appointment to the position of judge of the Onufriiv District Court of Kirovohrad Oblast." During an interview at the High Council of Justice of Ukraine (HCJU), judge Olena Shulika stated that she went to Crimea because the law did not prohibit it, but now she believes that it should not have been done. However, the members of the High Council of Justice of Ukraine (HCJU) decided by a minority of votes that this cannot be considered an excuse and such actions of the judge indicate that she does not have a clear civil position.

On the day of voting for Olena Shulika, 15 out of 17 members took part in the meeting of the High Council of Justice of Ukraine (HCJU). She received 13 votes. To appoint her to the post, 14 votes were needed. That is, legally, two votes decided that she is unscrupulous for this position. In essence, there is no quorum for decision-making at the High Council of Justice of Ukraine (HCJU). And it does not exist because there is no full composition of the High Council of Justice of Ukraine (HCJU).

But the concept of "appeal" works. And Judge Shulika appealed to the High Court and already has in her hands the decision of the Cassation Administrative Court of the High Court of Ukraine (HCU) in her favor. Now the representatives of the Grand Chamber of the High Court of Ukraine (GCSCU) have to say their opinion.

…It is clear that none of the three key state judiciaries has become a leader in their field. The chaos and slowness of the High Qualification Commission of Judges of Ukraine (HQCJU), the "timidity" of the High Council of Justice of Ukraine (HCJU) and the potential risk of reformatting the Grand Chamber of the High Court of Ukraine (GCSCU), which currently supports the status quo, are red signals that the system does not want to change from within. As a result, the judicial reform is led by external players – the government or public activists (who are always easy to criticize against the background of the inaction of those who should really implement the reform. These activists offer one option among many possible ones). Which will always find someone to lean on within the system and put the reform on hold. Which, in fact, happens every year in a row.