Mr. Sergii Koziakov, Chairman of the HQCJU: “No reform in the world with so many people taking positions goes flawlessly”
For nearly two and a half years the attention of the public and media has been focused on the work of the High Qualification Commission of Judges (HQCJ).
The Commission that launched the competition to the Supreme Court, and currently to the High Anti-Corruption Court, to the Court on Intellectual Property, qualification evaluation of judges, etc.
The number of competitive procedures the HQCJU is currently conducting is unprecedented. And not only in Ukraine, said Mr. Sergii Koziakov, Chairman of the Commission. He says again and again that the Members of the Commission have long been working in terms of a difficult schedule, sleeping only for a few hours a day.
Instead, most criticism is directed at them. What to speak of Mr. Koziakov. And it is despite the fact the final decision is to be made by the High Council of Justice and the President. “Well, it is good that we are the ones who are criticized. The fact that there is criticism indicates that civil society and media are developing, and it confirms our influence”, answers Mr. Koziakov.
Another “experiment” for the HQCJU is establishing the High Anti-Corruption Court, and, in particular, the involvement of the Public Council of International Experts in this process. Let us recall briefly: the latter considers all candidates and determines “unworthy ones”.
The HQCJU, together with the PCIE, conducts joint interviews with such candidates. According to the results of joint meetings, the Commission decides who can continue to participate in the competition. Such a decision may only be adopted by the HQCJU by 11 votes in favor out of 16. On Monday, January 28, the last joint meeting of the HQCJU and the PCIE will take place.
We talked to Mr. Sergii Koziakov before these meetings, taking advantage of the opportunity to take an hour of his working time.
“A few years ago, the Presidential Administration and the Verkhovna Rada were 100% involved in the recruitment of judges”
Judicial reform has been taking place since September 30, 2016, when the amendments to the Constitution in respect of justice came into force. Can we talk about slowing down or speeding up its stages?
Many events are taking place within the framework of judicial reform. It is worth analyzing what part of it and why proceeds faster, and which one slower.
The HQCJU is responsible, within its competence, for the human resources part of the reform. And besides competitions to the Supreme Court, the High Anti-Corruption Court and the High Court on Intellectual Property, transfer of judges to other courts, the Commission deals with, in particular, secondment of judges from one court to another. Until recently, four state bodies were involved in this process: the State Judicial Administration, the HQCJU, the High Council of Justice and the President. Currently, the Administration of the Head of State is not involved in this, and it, at least, reduces the document flow.
Moreover, the political bodies are not involved in issues of content and procedure as to human resources. A few years ago, the Presidential Administration and the Verkhovna Rada were 100% involved in these processes. Do you remember, over 800 judges appointed for 5 years waited for the Parliament’s decision to be appointed them indefinitely? For three years ... Some of them even died without being appointed.
And when the Verkhovna Rada no longer had the powers to appoint judges, the HQCJ and the HCJ appointed these judges in a few weeks.
The judicial reform, first and foremost, provided for the abolition of the Verkhovna Rada’s powers regarding the impact on the judicial career. The role of the President is minimized. And this, to a large extent, although not completely, depoliticized the process of appointing judges.
Furthermore, procedures for appointing judges were dramatically changed. I talked about it many times and I am ready to say it again. Did the public know in detail about the procedure for appointing judges? No. Were candidates for positions of judges known? No. Was it possible to read dossier of candidates? Again, no. Was there psychological testing for judges? Again, no! Did the judges file declarations of family ties and integrity? No. Or e-declarations? No! And, finally: were judges and judicial candidates familiarized with NABU findings of them? And, again, no!
Today, these procedures are transparent. Moreover, any citizen can watch interviews with judges, analyze the declaration of integrity and family ties, and so on.
You know, I read with pleasure comments of politicians, including those running for presidential office or wanting to become members of future Parliament who say that after the change of power, a new reform is needed. And it would be a pleasure to ask them the question, what exactly do they propose to change?
We will not publish dossiers of candidates or declarations? The reason will have to be explained to the public. We will not broadcast interviews? What will the public say about it?
So today, our European colleagues advise us not to store videos of interviews with judges on YouTube. There is no such practice in Europe. This question should be discussed but at the expert level. It is worth analyzing what the consequences might be, taking into account public reaction to it. It is not just a political issue. This is a matter of domestic security of judges and reputation consequences for the entire judicial system.
Only in the United States, it seems, interviews with candidates for the position of a judge of the Supreme Court of the United States in Senate are broadcast live. The reason for it is said to be because appointing a judge to the Supreme Court is a political process. Then we have a paradoxical situation: by means of Constitutional reform, we deprive the President and the Verkhovna Rada of a possibility of political influence on the appointment of judges. However, because the public is involved by means of legislation in the appointment procedures broadcast live (in circumstances very similar to those of the United States), we gave even more opportunities for political influence on these procedures. Another social group of Ukrainian citizens got administrative and power opportunities for this.
Did you communicate with any of the presidential candidates on this matter?
No, I did not. And my colleagues, as far as I know, did not as well. At the same time, we often communicate with representatives of the public, both personally and by correspondence.
Some of the candidates offer a radical change in the procedure for forming the judiciary. For example, introducing elected positions for judges, as in the United States.
Such an idea sounds cool. But if this is a “bare” statement, then it is populism.
I advise these candidates to read a lot of analyses in English on the election of judges, in particular in the United States.
It is worth analyzing the appointment of Mr. Kavanaugh as a judge of the Supreme Court of the United States alone. The public categorically opposed this ... Today, the political influence on the process of appointing judges in the United States has grown tremendously.
Given that populist slogans are growing aggressively, the judicial branch of power is largely losing its independence virtually in all countries neighboring with Ukraine. This is an extremely dangerous trend.
And, unfortunately, our media explores it very succinctly. Ukrainian civic organizations also take little notice of these trends in the neighboring countries.
Let’s come back to Ukraine. The HQCJ is not the only one involved in the selection of judges. The final actions are made by the High Council of Justice and the President. And although the functions of the latter are called symbolic, however, as practice shows, there may be situations that the Head of State for a long time does not sign decrees on the appointment of some of the candidates for the positions of judges, in particular, to the Supreme Court. As to the HCJ, the HQCJ passed over 100 recommendations on the dismissal of judges within the framework of qualification evaluation, but the Council considered about a dozen of them.
I would not like to comment on the activities of other government bodies. I can only talk about the Commission. If we do not do some work on time, I know the reason.
Yes, but the HCJ has even broader powers to select candidates to the Supreme Court, for example. However, only you come in for criticism for the results of the competition.
Well, it is good that we are the ones who are criticized. The fact that there is criticism indicates that civil society and media are developing, and it confirms our influence.
Again, in the course of appointing Mr. Kavanaugh as a judge of the Supreme Court of the United States, demonstrations, even riots with hundreds of detainees took place. Nevertheless, the Senate voting was as follows: 50 votes in favor and 48 against. If it had been 49 to 49, Mr. Kavanaugh would not have been appointed. This decision is still largely criticized by the public.
There are the Chairman of the High Council of Justice and its members among the candidates in the second competition to the Supreme Court. Can we presume that there is a conflict of interest as to the members of the Council since they took and are taking part in the appointment or dismissal of judges, including competitors to the Supreme Court?
The HQCJ is not a body that defines a conflict of interest. This is the prerogative of the Council of Judges or the National Agency for the Prevention of Corruption.
We only provide equal conditions for all candidates. And they themselves decide whether participating in a competition is a conflict of interest for them or not.
In the lists of current leaders of the second competition to the Supreme Court, there are a lot of judges of the high specialized courts who did not pass the competition to the Supreme Court that took place before. It turns out that they prepared, “cleaned” their declarations, brought the property to order and today have high chances to win.
Any answer of mine to this question may be ambiguously interpreted in relation to any of the candidates taking part in the competition.
Yes, it so happens that over two or three years the situation in life of a person is changing. And those circumstances that existed then no longer exist now. And I am not talking about a particular candidate.
The Commission works in boards composed of three members in each. It is they who consider a particular candidate, the results of the testing and the practical assignment he passed, his biography, declarations, etc. And, in particular, they examine how his life has changed from the last competition.
In adopting a decision, the HQCJ uses the NABU documents, explanations of the candidate. It seems that the Public Council of Integrity has started functioning. It may also send certain information about a particular candidate. We will analyze all information in whole.
Has the HQCJ made peace with the PIC?
We started working communication. We see a different way of communicating on the part of this Council, unlike the previous one.
We accommodated the PIC and somewhat extended the deadline for them to submit documents as to their candidates (it used to be 10 days, today it is 10 business days). At the same time, we saw that the documents published by the PIC on their website, including those relating to the methodology of their work, are new. For us, it is a sign to show cautious optimism.
There were rumors that during the second competition to the Supreme Court, the participants got answers to test questions and practical assignments.
I am a very hard pragmatist. I have been teaching at the university for many years. And I assume that in theory, it is possible. For example, in such a way. This time, before the competitions to the Supreme Court and to the High Anti-Corruption Court, the Commission published about a thousand test questions. We observed that candidates organized groups and searched for answers to the questions together to spend less time on preparation. After that, they could have exchanged answers, could have posted them in social networks, and so on. I think this is admissible. It is important that the candidates worked on the questions.
It would have been worse if practical assignments had been “leaked”. We try to outrun such a possibility. Those practical assignments that are randomly selected by the computer are reproduced, it is video-recorded; then practical assignments are packed in numbered safe-packages and stored by the state security unit. Then this unit delivers these packages on the test day and, recorded on camera and in the presence of observers and exam participants, the packages are opened and the assignments are distributed to the participants of the competitive procedures.
So far, I am not aware of any “leaking” of assignments to competitors from the Commission Members.
It would be possible to assess the composition of the new Anti-Corruption Court only after first 100 sentences
In 2017, at the beginning of the selection to the Supreme Court, you said that there were three attempts to influence the results of the competition. How many such attempts have been since then?
Probably my answer to this question will be unexpected. When journalists or representatives of the public ask something like that, they probably mean the influence of the government or government officials.
To date, I have not noticed (and the Members of the Commission have not informed me) that some of the political leaders or politicians interfered with the competition to either the High Anti-Corruption Court or to the Supreme Court. At the same time, we observe extremely increased attention from the diplomatic circles of Europe and the USA and the public.
Can we call this pressure? Or attention? It depends on the intensity, methods, surnames, etc.
At the same time, today we can observe competitions between groups of public organizations, in particular regarding competition to the High Anti-Corruption Court. Some of them submitted their list of candidates who they consider as such who do not correspond to the requirements of integrity or are unworthy (this term is news of season).
Again, they write that the responsibility for the fact that one of these candidates goes further in the competition lies with me personally. I treat such things with a good sense of humor and recommend the authors of such comments to try to be more professional. If I had more free time, I would write a number of articles on this topic. I will not tell everything to the journalists – will leave it for memoirs (smiles, LB.ua).
Perhaps it not an accident that lists of candidates to the High Anti-Corruption Court who, according to public organizations, do not correspond to the requirements of integrity were published when meetings of the Public Council of International Experts were held, at which they determined those persons who should be considered at a joint meeting with the HQCJU. Can this be regarded as pressure on them?
I think it is better if colleagues from the Public Council of International Experts answer this question. There have been no comments from them so far.
We are trying not to react nervously to statements made by civic organizations or their members. However, if there is an outright lie, as it was before the New Year, we will make a rebuttal statement. That time I only called one of the public figures...
Any criticism – you are welcome. However, it should be without a lie.
Earlier, representatives of certain civil society organizations criticized the competition to the High Anti-Corruption Court for the lack of candidates. Then they said that these names are unknown to anybody and so on.
Can we today speak about the qualitative composition of the future court based on the two stages of the competition?
In fact, the number of applicants to the High Anti-Corruption Court was a record one – almost nine persons per one position.
I have no doubts that there would be more candidates if, after the last competition to the Supreme Court, the public stopped excessive criticism in time.
Several times they raised questions to which answer was given. Apparently, such is their tactics. At the same time, I would like to draw attention to the fact that some influential, not only in our country, public organizations conducted active campaigning in the regions to attract candidates to participate in the competition. Therefore, the quality of the candidates is to a large extent the merit of the activists.
It would be possible to assess the composition of the new Anti-Corruption Court only after its first 100 sentences.
Did the members of the PCIE have enough information to analyze the dossier of each candidate?
At the beginning of the competition, there was serious pressure from public figures that the Commission should provide full access to the candidates’ profiles to the members of the PCIE. Instead, the legislation provides for an exhaustive list of authorities and persons who have such access.
And we in the Commission addressed each candidate for implementing the purpose of the Law “On the High Anti-Corruption Court” to allow full and direct access to their dossiers to the members of the PCIE provided that the PCIE would ensure compliance with the legislation on the processing and preservation of personal data. In our opinion, PCIE did it. Moreover, the candidates (absolutely all) provided such permission.
Please note that this was done in a calm, professional way. And how many publications were made that the Commission avoids solving this issue...
Does the language barrier become an obstacle in the work of the PCIE?
They hired interpreters and English-speaking lawyers. I think it is extremely difficult to process that amount of information, but they manage to, in my opinion. I only know that they sleep for a few hours a day.
That is, the members of the PCIE are responsible for distributing personal information. And is PIC not responsible?
I would not give an affirmative answer to this question. I would like to believe that members of the PIC understand that when receiving personal information about the candidates, they must properly process and preserve it. In what way PIC members comply with the legal requirements of the legislation on the protection of personal data, I do not know.
PCIE was established for two years. However, the competition is scheduled to be completed by the end of February. What will they do next?
I propose to complete the competition first. Obviously, it was taken into account that not all vacancies in the High Anti-Corruption Court may be filled up from the first time.
According to the latest data, out of almost 5,000 judges, 1,610 successfully passed qualification evaluation. 165 of them did not confirm eligibility for the position held, in respect of 75 judges evaluation was suspended, and in respect of over 200 judges – a break was announced. Is everything correct?
Yes.
Judges are not very satisfied with the fact that judges who were evaluated and those who were not may work in the same courts. There is a significant difference in salary. Why didn’t the Commission evaluate judges separately per the courts, so that there were no such situations?
No reform in the world with so many people taking positions goes flawlessly. Especially given that so many procedures are carried out simultaneously it is extremely difficult to make sure that all judges who are working in the same court could be quickly evaluated (together started and completed).
On the one hand, this procedure really depends on the Commission. On the other hand – on the judges themselves who are either preparing or not preparing for qualification evaluation.
Some of them have property issues. To check each judge, we send inquiries to NABU, NACP. On other issues, we approach HCJ. These processes slow down the schedule of qualification evaluation. Some of the judges leave this procedure. And of course, misunderstandings arise in courts.
There was information distributed that some judges passed qualification evaluation faster, despite the fact they consider politically important cases.
Please tell the surnames.
For instance, judge Devyatko, who is considering the case of Viktor Yanukovych (the interview took place before the sentencing of the ex-president).
He is not the only one considering it. There are two more judges within the composition of the board. In case the assumptions made by you were confirmed, then all these judges should have already passed the qualification evaluation.
It is said that “there were questions” to him in relation to the property.
I was not a member of the board which interviewed him. It consisted of experienced professionals who can ask hundreds of questions. Moreover, if the judge did pass the interview in that board, then apparently there were grounds therefor. I was told that the interview with that judge lasted about three hours. It’s unusually long. In any case, I propose not to believe either my words or those who tell something, just watch YouTube broadcast of this particular meeting.
How many judges of the high specialized courts and the Supreme Court of Ukraine began to work in other courts, to which the HQCJU transferred them?
We transferred all judges (except one) of the high specialized courts and the Supreme Court of Ukraine to other courts.
Yes, but mostly they refuse to go to work in other courts, especially to go to another region.
This is a different kind of problem.
However, these judges earn salaries but do not exercise their powers. What is the way out of this situation?
Several government agencies are involved in solving this problem. The HQCJU fulfilled its obligations concerning the transferring of judges. Many of them do work in other courts.
Furthermore, the Commission offered equal conditions to all judges during the competition to the Supreme Court. As you know, only one judge did not participate (Halyna Kanyhina – LB.ua).
In countries with similar problems, the psychological pressure was even stronger than in Ukraine. Sometimes it takes time to solve them. Sometimes legislative changes are required. One way or another, certain steps, including those that are effective, were made. I have no doubts, steps will be made.
“We must also remember about the dangerous consequences of implementing populist slogans”
Obviously, this year will be another test for the judiciary. Despite incomplete procedure of qualification evaluation, serious workload and the difference in salaries of judges, they will have to withstand two election campaigns.
A change of power will probably mean a change of reform. Will you be ready to start a new reform?
I am definitely not ready to start a new one. I am ready to complete the ongoing one.
Let’s see elections results and hear ideas on judicial reform if any.
If we talk about a new reform, then it really should be new. Besides, it should be well thought out and consistent with the position of our European colleagues. For the most part, such a profound reform is developed for at least a year. For example, scientists and experts wrote the new Civil Code for seven years.
No new reform was carried out quickly. We should remember this. We should remember the dangerous consequences of implementing populist slogans as well.
Symbolically, the HQCJU plans to complete the second competition to the Supreme Court and to the High Anti-Corruption Court by the end of February – shortly before the presidential elections. Did somebody ask you to meet this deadline so as not to jeopardize these competitions in the case of a change of the head of state?
I think there is no need to ask. Ukraine is the country where, fortunately, it is unknown who will win the presidential or parliamentary elections. And it is extremely important to have constancy not only at the beginning of something important but also in the end.
Filling vacancies in the Supreme Court is the completion of the competition that started two years ago. The establishment of the High Anti-Corruption Court is also the completion of one of the reform components.
In June 2017, in your blog, you wrote that the HQCJU is personally responsible for the competition to the Supreme Court.
Yes. My colleagues and I are personally responsible for the selection procedures of the Supreme Court judges. Professionals say that there are very serious positive changes there. I rely on their opinion only.
Therefore, speaking about our responsibility, I’m urging to remember that it is the HQCJU in its current composition and all the staff of our secretariat, which in the present composition is fantastically professional, have done a really good job and laid the basis for positive changes in the work of new judges of the new Supreme Court.
What about the High Anti-Corruption Court?
Why not? However, jointly with the Public Council of International Experts. Each has its own part of the responsibility. We do not hide our responsibility. Moreover, we prepared a report for the media and the public: what we did and what we are currently doing in the framework of the competition to the High Anti-Corruption Court. We can be responsible for each action in the framework of the competition. I hope all its participants will do the same.
Virtoriia Matola, Max Trebuhov
LB.ua
28 January 2019
February 22, 2019
