“Within disciplinary proceedings, we recommended dismissing for breaking the oath for ten times more judges than our predecessors before the Maidan” - Sergii Koziakov
- When I started working in this office, some members of Parliament came here every day with requests. There were queues. They brought expensive whiskey. They did not even ask if I was drinking alcohol at all. It has not been the case for a long time, there is no need. The assistant at the reception desk draws their attention to this sign, - says the Chairman of the High Qualification Commission of Judges, Mr. Sergii Koziakov.
Near the door of his office, there is an inscription: “It is strictly prohibited to pass with gifts, souvenirs and other objects that do not correspond to the official nature of the meeting”.
We meet each other April 6 on the second floor of the building where the Commission works, 9, Mekhanizatoriv Str., in Kyiv.
In the office, Ukrainian paintings with landscapes hang on the walls. On the shelf, one can see some examples of Soviet “educational” posters. One of them – with criticism of a school graduate, who is going to get married instead of working at the factory: “One would wonder, birdy bird, who would work?” Nearby another sign “Department does not work”.
- I do not like to use them, - Sergii Yuriiovych shows office phones. - Today, Deputy Chief of the High Council of Justice, Vadym Belyanevych, called, and we talked about the working moments of administrative procedures that start with us, and end in the HCJ.
The Public Integrity Council has suspended the judges’ assessment. According to them, the High Qualification Commission of Judges, which conducts the reassessment of judges, ignores their opinions. Why is this happening?
- The first thing that they did not like was the following: in our Regulations procedure, we have clarified the requirements for documents coming from the Public Integrity Council. This is a body with a special status, in which lawyers, journalists, and public figures work. They provide positive or negative information about a judge or a candidate for the position of a judge. And the second document they submit is the opinion. It is always a negative one, and if we agree with it, the judge or the candidate for the position of a judge is suspended from the competition or loses his job. If we do not agree with it, we overrule this opinion by no less than 11 votes out of 16. We are a collegial body. And the HQCJ is the only one among all governmental bodies, where the public plays a significant role throughout the procedure.
The Regulations provide for simple things. It says: “If a document submits from the PIC, it must be signed by all its members.” They answer: “We are so many, we hold meetings online, and it’s uncomfortable.” We respond: “Well, let it be a signature in PDF format (a document that can be read on a computer. - Gazeta.ua )”.
An authorized member of the PIC may participate in the meetings of the Commission. We are inviting them. But there must be a decision from their assembly, as stipulated by the Regulations of the PIC itself. They say: “No, we are all authorized members”.
We provide the Council with lists, publish dossiers on judges on our website – it is a unique situation worldwide. They read these documents, and they look for something that may raise an interest of the Commission. For instance, they found an undeclared vehicle that could cost around 20-50 thousand USD. Doubts about the integrity of the judge arise. It is prepared as an opinion and published on the site. Or a judge has visited the Russian Federation 12 times during the last four years. This is also important information. We must ask her: was she really in Russia during the war and why? And the judge gives us evidence that she has never been there for the past 10 years. Her mother, the PIC writes, is a citizen of the Russian Federation. We are then given a copy of the passport – she is a citizen of Ukraine. Just the last name, name and patronymic have coincided completely. It happens.
European experts say: judges need to be given the right to respond before the disclosure of the information because this is the matter of their reputation. Consequences can be serious, up to dismissal. Especially when, for example, the person is 62 years old and has only three years left to retire.
Last year we held the competition to the Supreme Court. We have learned many lessons. If there were errors, they should be corrected. From our part, we changed dozens of things. The same should be done by the PIC. The differences between us are not civilizational. The problem is invented. These things are solved calmly. This is not a matter of great politics.
We are a collegiate body. The only one among all state ones, where public representatives have influence in administrative procedures
Why did not you reach an agreement?
- I'll say an unpopular thing. A large part of the Public Integrity Council has become accustomed to solving the problems through protests. Do you really need to call a protest upon a requirement to sign the document?
There were complaints about a norm, which actually absolves the Maidan judges. That is, the Commission will ignore the opinions of the PIC about arbitrary court decisions if judges were not held liable for them. And most of the judges who took part in the processes over the activists of the Maidan did not receive any punishment.
- It is not about the judges of the Maidan at all. There were recommendations from the European Union. There they say: it is impossible that someone else, and not a higher court, gave judgment on the court's decision.
The decisions of many judges during the Maidan are often strange, incomprehensible, questionable, and sometimes even terrible. The judge sees a beaten activist, in blood, with broken ribs. He lies on the bench and then falls to the floor. The judge sends him to jail instead of sending him to a hospital.
The second case: a judge in L’viv limited the installation of small kiosks on the historic square, but did not restrict peaceful gatherings. All cases are not the same, right? One judge has banned peaceful gatherings for an unlimited period, on unlimited areas for an unlimited number of people. Another one restricted such gatherings in Odessa, where in one place it was planned to gather more than 20 public associations with opposing views. He restricted the protests, I think, in ten places in the city center, but in six – no. We all still remember what happened in Odessa not so long ago? The cases are different. We examine each individually and study the situation.
There was a period when the Commission had the authority to deal with disciplinary complaints against judges. We do not do this right now. We considered thousands of complaints. In particular, there were eight complaints against those judges who made decisions during the Maidan. In eight cases, it was recommended that the High Council of Justice dismissed them for violating the oath. Over the three previous years (2012–2014 - Gazeta.ua), the previous composition of the Commission adopted 38 decisions for violation of the oath. We had 492 of them over the next three years. More than ten times more. And to say that we are now all about apologizing and saving – it is at least unprofessional.
One of these opinions has already been taken on board when evaluating one judge. He will have to leave office.
85 percent of the judges involved in the cases over Maidan activists were not punished. And the remaining 15 % - are actively renewed in office, says the Public Integrity Council.
- I am a lawyer, but I have been seriously involved in statistics for many years. It either exists or it does not. If it is not given in full – this is manipulation. Simultaneously with the statistics, one should give examples. If we speak, for example, about three hundred judges, then it is necessary to consider examples for all 300. There is one important aspect here. It is possible to punish the judge effectively and quickly. And he (or she) will then go to the European Court of Human Rights and win, on the basis of a violation of the procedure.
Is it true that of 134 negative opinions on judges provided by the Public Integrity Council, 76 were overruled by your institution? Why?
- Is it a lot or not? It’s like in a riddle: what is a heap – three grains or three hundred of them?
Such talks should always be done in comparison. Let’s compare with the previous years – there has never been a procedure before, where the Commission would pay attention to the public at all. Therefore, there is nothing to compare with.
Secondly, is the Commission’s responsibility to agree with all the opinions? No. Moreover, the Commission is simply obliged to check the content of the opinion in order to allow the judge to answer the allegations. And then, together with all the evidence and factors, we shall make the final decision.
Within the content of our decisions, adopted by the Commission on the results of the competition, all claims to a particular judge were fully indicated. Then, point by point we state how the judge reacts to these claims and the reference to the evidence that the judge provided. And then it goes the Commission’s response to such materials. All decisions were posted on the site and could be read by all those who would like to do so.
For example, a judge noted: my brother did not buy land in 2014, but obtained his father’s inheritance. And his father got this land of five hundred square meters from the plant, for gardening, back in 1986. Anything to add? Or vice versa, the mother was found with seven apartments in Yalta. She is a cleaner in a charitable organization. Well, could once earn one of them through a co-operative. But not all seven. And then these are serious claims – because there is no logical explanation.
In many cases we agreed with the Council: the candidate did not continue the competition. The second option – we paid attention to the opinion, but the candidate did not fall into the list of winners, did not become a judge of the Supreme Court. The third one – we did not agree with the opinion, and the candidate won the contest. For example, a commercial dispute was under consideration by one candidate several years ago. A public representative comes with a small camera and starts broadcasting on YouTube. The judge forbade the broadcast because there was a trade secret at stake, and most importantly, he did so at the request of the parties but allowed the audio recording. For this, he received a negative opinion. And the Commission decided: no punishment because the judge acted in accordance with the law that was in force at the time.
The mother was found with seven apartments in Yalta. And she is a cleaner in a charitable organization
I do not say that in each case we are 100 percent right. We have serious discussions. And they will continue.
Here is another example from life. A judge has the right to get an official apartment if he does not have a home. He got one. Then the law allows for and he privatized it. Legally. But was it honest?
We continue: he privatized and presented this apartment to his son, or daughter. Then he moved to another city and got an apartment there again. Once again: is it honest? And now I’ll say something that is not a secret at all. It is the first time we have the “integrity” criterion for judges. Do you understand? For the first time! And the result may be their dismissal! Let readers of your edition try to hold a small discussion with neighbors on a simple problem. If they see the judge drunk during the working hours on the street, will the judge have integrity at this moment? And if is it going to be after off work? And if the judge crosses the street to the red light? And if such a neighbor – not a judge – crosses the street to the red light? I think that the discussion may be delayed, because of how many participants in the discussion have their different opinions. That’s what we are facing.
A judge has the right to get an official apartment if he does not have a home. He got one. Then the law allows for and he privatized it. Legally. But was it honest?
Are there many of such cases?
- No. But they are. In different cases, we made different decisions. Because there were different thoughts. I would like to stress it again: never before, in relation to any profession, the issue of integrity, as a requirement of the law, was applied.
The Commission is accused of passing to the Supreme Court such people as Bohdan Lviv, against whom there were criminal proceedings. Or Olha Stupak, who lives in the estate of her mother-in-law, who seemed to have been selling berries all her life. Why have these candidates been selected?
- I will give you a decision both on Lviv, and on Stupak – with their explanations. Read and make your own conclusions (Bohdan Lviv provided an explanation, which was approved by the Commission, stating that his lifestyle corresponds to the declared income. The $ 635 000 he earned were spent on an apartment in Kyiv, two cars, two watches and foreign trips. The electronic declaration did not indicate the cost of “relevant objects of the real and personal estate, in view of the fact that the relevant documents had not been preserved”. In addition, according to the results of the pre-trial investigation, the Prosecutor General’s Office reported: no evidence of the criminal involvement of Mr. Lviv in commercial courts was found - Gazeta.ua ).
There are other winners, for whom the discussion continues. I draw attention to the following. The procedure was so that anyone could be present during the interview with the candidate. First, dossiers were posted online. The interview was broadcasted live and now it’s easy to find it online – this is the second. Your readers can easily find it on the Internet, review and make their own conclusions. There has never been such openness, and such openness allows criticizing the authority and candidates. Do you understand, never! We did it first and we are not afraid of being criticized!
In general, there had never been before a competition to the Supreme Court. We publish the lists of candidates. Previously, only judges participated in the selection procedures. Now, in addition to judges, lawyers and academicians took part in the competition. This is better because people are not coming from the system. More than 20 percent of winners are from outside of the system. In Portugal, with the same number of judges in the Supreme Court, the quota for non-judges is 10 percent. Therefore, Ukraine has shown a serious civilization breakthrough.
At our website, you can read all about the candidate and his or her family ties. To see where a conflict of interest is possible. No one in the world publishes such data.
An electronic declaration is a very important document. Earlier, a dishonest judge took a bribe and quietly bought several cars, an apartment, a house, land. And now after having acquired something he has 10 days to make a record of significant changes among his or her properties. And show that the money is legal.
Broadcasts of interviews with candidates are not done in other countries. Except for several ones. For example, the United States, during the Senate hearings. By the way, I advise readers of this interview to watch an extremely interesting Hollywood movie, “Confirmation” from 2016, which shows how the interviewing of a candidate for a US Supreme Court justice is done.
For the first time, we conducted psychological tests for judicial candidates and current judges.
The selection to the Supreme Court was made in a transparent way. We provide the opportunity to criticize the candidates, the Commission. For ourselves – to follow-up, the judges whom we had might miss. We look at their decisions. The Supreme Court has an important authority – their judgments will have a precedent force. Almost as in England, when the court made a decision
400 years ago, and it is still used. The parties will go to the first instance and will already know approximately what decision will be made in the appeal or even in the Supreme Court. And that’s great. Many people just will not turn themselves to courts.
The Public Integrity Council has ceased to work, but the HQCJ continues to assess judges. Will you not then be blamed that these opinions are invalid because they were passed without public participation?
- No one will. First, the law does not foresee such event as a cessation of the PIC participation in the assessment. There is no such thing: I want – I do work, I do not want to – I will not. Let’s imagine that there are elections. We arrive at the polling station, and people from the public who work there refuse to issue us ballots. Because they did not like something. It is impossible. So is here. We must continue to work.
But if the PIC does not work, the qualification evaluation process will continue. Actually, we never stopped it. But the public’s influence on the evaluation process has declined dramatically. At the initiative of the public itself.
What should be the balance of influence on the judges' assessment between the HCQJ and the PIC, so that there are no conflicts? How do you see the way out of the current conflict?
- There is no ideal form in public relations. The world is developing, looking for it. Before the selection to the Supreme Court, we analyzed the experience of 45 countries. How are they doing such selection? No country has such powers and opportunities to influence the process, as in our Public Integrity Council.
We have this for the first time. Treat this as an experiment. To change something, you need to analyze your experience well and think about it. We also have claims to the PIC. We do not consider it necessary to announce these claims every day and draw attention. Many things are easy to solve, and we do not need to complicate them with information hype. Many things are more difficult to solve, but the solution needs to be prepared in advance. We have reports from European experts on their activities. There are enough remarks there to draw attention to.
How are the interviews with judges being held? How many have passed the assessment? There are rumors that some interviews last for six minutes. They say, more than 5.3 thousand judges are to be assessed within few months.
- In fact, an interview for five or seven minutes may be at the finish line already. On average, it’s about half an hour. But before that, we spend several months in direct contact with the judge, for about 25 hours. After accusing us of these seven minutes, we counted the time. Five hours of psychological testing on a computer. Another 30 minutes or an hour – for the psychologist in order to interview the person on the results obtained previously. Then – a qualification test and a written assignment. It’s two and five hours respectively. Then we prepare a judge’s dossier and study it. This is done by professional lawyers. After that, they give the Commission member the first report. By the way, I also passed the psychological testing. Psychologists wrote: “He is inclined not to trust anyone.” I was surprised, to say the least. Colleagues then confirmed that it was my duty to be so. I study the reports and also review the dossier. And then the final interview goes. If there is no negative opinion from the PIC, if there are no problems with professional activity, and if the judge, from his 11 thousand cases, has only some amended or cancelled, if there are no disciplinary complaints, comments from NABU – then, do you really have to talk with him for two hours? If there is any negative information, then we would ask him a question.
Passed the psychological testing. Psychologists wrote: "He is inclined not to trust anyone"
How many judges have already been assessed?
- Approximately 220. In the past year, we started the initial assessment procedure. Then we signed a memorandum with NABU and were the first state body to ask them to provide materials. From February to June 2016, nearly 350 judges were assessed. 58 percent succeeded from the first try. The PIC was not there yet. We did it by ourselves.
From June to the end of September of that year, one and a half thousand judges resigned at their own will. There were several reasons. An information pressure from the society. They say all are bad. Possibly fair pressure. Another reason is our job. When it comes to answering unpleasant questions, in particular on the results of the inspection of NABU, it was too much for many of them. In addition, the Constitutional Court returned to the judge's benefits and guarantees that they could use as a result of their resignation at their own discretion. Thus, society “bought” the purification of the judiciary. But the assessment factor was decisive. Not only the bad ones left, but, unfortunately, also professionals with a serious reputation. I can only mention one such example in the world – during an unsuccessful coup in Turkey in 2016. Then, President Recep Erdogan dismissed more than two thousand judges in one day. In Ukraine, it happened in a more civilized way.
From June to the end of September 2016, one and a half thousand judges resigned at their own will
There are also unpleasant consequences. The judges left unevenly throughout the country. In some regions, five out of five resigned. For example, in Yaremche district there was not a single court. And this means that the population in this territory does not receive a constitutional service – access to justice. We have over 2400 vacancies in courts. For the past year, more than 900 judges have resigned. In Ukraine, there are more than a hundred courts, with no judges left, or just one or two. If we consider all appeal courts – less than 50 percent. In the appeal court of Zaporizhya region – up to 30 percent. This means that the number of cases to be dealt with by 50 judges is now considered by 20. We have longer terms of reviewing and worse quality.
You will not prepare a new judge over a day. The requirement of dismissing everyone and recruiting new ones is the most populist. By doing so we can stop justice in the country for two or three years. I do not say that it is not necessary to dismiss the bad ones. It is. But you need to carefully consider each case. And the Commission will do exactly that.
Positively judicial reform is perceived by only 12.6 percent of Ukrainians, and negatively – almost by 50, according to the sociological survey from the Razumkov Center. In general, the mistrust in the judicial system is more than 80 percent. How to turn the favor of Ukrainians?
I would like to make an important clarification. In general, only 12 percent of Ukrainian citizens trust the judiciary and courts. But as for the professional lawyers who are parties to court proceedings (counselors, prosecutors, legal advisers), 38 percent of them trust the judiciary completely, or they rather trust it. And the new Supreme Court, which only began its work a few months ago, already has a 40 percent of trust. Pay attention: the more the surveyed knows about the actual work of the court, the higher is the positive response. Why is this negative attitude to the judiciary among the ordinary citizens? According to other polls, only 12 percent of citizens are aware of the creation of a new Supreme Court. And only 11 percent knows about the selection of judges to the new Supreme Court with a new transparent and competitive procedure. Here are the remaining 88 percent. When more citizens, including your readers, learn about the first results of the reform, then those who improve their opinion on judicial power will become more.
Just dismissing a bad judge does not mean that all those who are left will be good. And those who come will be initially inexperienced. You personally – will you want an operation to be done by an experienced surgeon of 40 years or a beginner? These are complex processes. You can compare with other reforms. I can name one successful. I am a lecturer at the Institute of International Relations of Kyiv Taras Shevchenko National University of Kyiv. I remember how those children were in the 1990s. Wearing expensive clothes, they arrived at expensive cars, often bodyguarded. As soon as the external independent assessment was introduced, the social composition of the freshmen changed dramatically. They come dressed modestly, better prepared. Those who did the external independent assessment and entered.
Everyone can get a biometric passport and go to Europe. For this, almost 130 laws were passed
Our judicial reform lasts for the second year in a raw. But only 2018 will launch a new blood into the system. Last year, in September, we had a selection for 700 vacant posts. 4128 candidates came to the examination. This is a record. The selection was in the premises where the Eurovision Song Contest (International Exhibition Center - Gazeta.ua ) took place. Organizational efforts were of the same magnitude. 300 of the seven hundred selected students are already studying at the High School of Judges. I want to have a qualification exam for them in July. Another 400-600 candidates will be added from the preliminary selection. About a thousand people will become new judges. We offer them places in courts throughout the country.
What irreversible changes in other areas occurred in Ukraine after the Maidan?
- For two years we have not been buying gas from Russia. That is, we buy it in Europe, with no corrupt schemes. It is irreversible. In addition, we have a new army. I was once an advisor to Anatoly Grytsenko, the Minister of Defence. I consider him one of the most honest ministers of that time. I was engaged in the return of the illegally alienated land of the ministry and in compensation by “real money” to the budget of the Ministry of Defence, which result, in particular, was the purchase of a record number of apartments for officers. But only by the efforts of one defense minister it was difficult to raise the combat capability of the army to the required level. After that, during the years of Yanukovych’s cadence, the combat capability of the army fell below zero, and over the past three years, the efforts of the President, Parliament, Government, volunteers, and commanders, as well as the heroism of soldiers, brought it from almost zero, our army has become one of the most capable armies in Europe. Now, this is a completely different quality.
I want the visa-free regime with the European Union to be irreversible. I have always had visas. But now, every student with 150-200 euros goes by bus to Budapest, Vienna, Paris. The more our people will see the world, the more opportunities they will have to compare our life with that of other countries. Moreover, our people will want to change for the better not only the country as a whole but also their city, street, and courtyard.
There are irreversible things in the judicial system. Earlier, the President and the Parliament were influencing the appointment and disciplinary responsibility of judges. According to the constitutional reform, they no longer have any relation to it. Judges were freed from dependence. You need to fill out an electronic declaration that anyone can read. Yes, and during the trial, you can hardly hide anything. Everything is happening in the eyes of the public and that of the press.
How will Ukraine be in five years?
- Over the past three years, we have done a fantastic amount of work. Again, a simple example. Now anyone can get a biometric passport and go to Europe. For this, almost 130 laws were passed. Someone did this, right? The Parliament that we criticized and verbally attacked. And the draft bills were prepared by the Government. And the diplomatic efforts were made by the diplomats and the President. The politicians sure can do things, when they want to! And the army was restored by the common effort. And agriculture becomes one of the most competitive in the world. And our IT experts sell their services for billions of dollars around the world. And do you know that Ukrainian footwear manufacturers are exporting tens of millions of pairs to Europe? I notice that our Commission members come to work in very decent clothes of Ukrainian production. And our skis are the best in the world. We can all of it! It’s all done in a short time.
So, we have breakthroughs. And there will be results. There are three critical areas: education, health, and science. Here it is necessary to concentrate efforts. But this is the work for other professionals. We have to do our job in the judicial system.
Taras Sevchiuk, Sergii Deshchiuk, Taras Podolyan
Gazeta.ua. – 16.04.2018
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