To meet expectations or leave things as they are: results from the first year of the renewed High Qualification Commission of Judges 


On June 1, one year has passed since the appointment of new composition of the High Qualification Commission of Judges of Ukraine (HQCJ). On June 6, the HQCJ reported at a briefing on the first year of its work after the renewal.
It should be reminded that in October 2019, the Verkhovna Rada dismissed the previous composition of the Commission. The reason for this, in particular, was the inability of the body to solve personnel problems and systemic cover-up of compromised judges. However, it was not possible to form the new composition of the body immediately, first because of sabotage by then High Council of Justice (HCJ), and later because of the decision of the Constitutional Court. Finally, the law that launched the HQCJ reform was voted on in 2021. The renewal of the HQCJ was identified as one of the priority steps for the opening of negotiations on Ukraine's membership in the EU.
Following the competition with the participation of international experts, 16 members of the HQCJ were appointed one year ago. 

Who was appointed?

By law, the HQCJ consists of 16 members, 8 of whom are appointed from among judges or retired judges. Thus, the following judges were appointed to the HQCJ under the judicial quota. Namely:

1. Bohonis Mykhailo Bohdanovych, a judge of Vinnytsia District Administrative Court.2. Ihnatov Roman Mykolayovych, a judge of Kyiv Court of Appeal.3. Kydysyuk Roman Anatoliyovych, a judge of the Economic Court of Lviv region.4. Koliush Oleh Leonidovych, a judge of the High Anti-Corruption Court.5. Luhanskyi Volodymyr Ivanovych, a retired judge. He did not take up his duties due to his service in the Armed Forces of Ukraine.6. Omelyan Oleksiy Serhiyovych, a judge of the Economic Court of Zhytomyr region.7. Chumak Serhiy Yuriyovych, a judge of the Third Administrative Court of Appeal.8. Shevchuk Halyna Mykhaylivna, a judge of Ternopil Court of Appeal. A of now the judge has retired.

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Other members include the following lawyers:

1. Volkova Lyudmyla Mykhailivna, lawyer, former judge of Kharkiv District Administrative Court.
2. Hatselyuk Vitaliy Oleksandrovych, program manager for Legal Reform, Good Governance and Democratization at the OSCE Project Coordinator in Ukraine.
3. Dukh Yaroslav Mykhailovych, head of the Corruption Reporting and Control Division of the Whistleblower Protection and Corruption Reporting Processing Unit of the Department for Prevention and Detection of Corruption of the National Agency for Corruption Prevention.
4. Kobetska Nadiya Romanivna, professor at Vasyl Stefanyk Prykarpattya National University
5. Melnyk Ruslan Ivanovych, head of the Corruption Prevention Unit of the National Anti-Corruption Bureau of Ukraine.
6. Pasichnyk Andriy Volodymyrovych, head of the Department of Full Inspections of the National Agency for Corruption Prevention.
7. Sabodash Roman Bohdanovych, lawyer, lecturer at Taras Shevchenko National University of Kyiv.
8. Sydorovych Ruslan Mykhailovych, attorney and partner at Ario Law Firm.

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Among all the appointed members, Lyudmyla Volkova received the most questions from the public. During the competition, she emphasized that experience she had gained would allow her to be effective in her position in crisis management.
It should be recalled that Volkova, as a judge and member of the Council of Judges of Ukraine, as part of the working group, never found any violations in actions of Volodymyr Babenko, the head of the Court of Appeal in Cherkasy region, in putting pressure on a judge under his command. In 2015, Babenko expressed his dissatisfaction with the fact that Bondarenko was not making decisions in the interests of people who "called" the head of the court and emphasized that the judge had disrespected the staff and "declared war". Not a bad performance in crisis management situation, is it? Instead of applying her knowledge and skills in crisis management, Volkova distinguished herself in the HQCJ not only by voting to keep dishonest judges in office, but also by the poor quality of preparation for interviews with candidates for the position of judge for the first time. 

"To be or not to be" – will the HQCJ have its Head

The Commission began its work by selecting its leadership. The members did not consult for long and held an organizational meeting on June 6, during which they selected Roman Ihnatov as the head of the Commission and Ruslan Sydorovych as his deputy by secret ballot.

This year has shown that the choice was somewhat hasty, as neither Roman Ihnatov nor Ruslan Sydorovych were able to organize the work in a way that would restore the institutional capacity of the body and solve urgent problems.
At the end of December 2023, the publication Dzerkalo Tyzhnya reported that Roman Ihnatov allegedly had Russian citizenship. In order to verify this information, the HQCJ formed a working group with the participation of 3 members of the Commission and 3 representatives of the public and sent relevant requests to the authorized state authorities. The working group held its first meeting on December 26 and approved its report a month later, on January 31, 2024. According to the report, Roman Ihnatov "had legal grounds for acquiring the citizenship of the Russian Federation... however, acquiring citizenship in the above-mentioned manner required him to take active conscious actions aimed at acquiring citizenship. At present, the working group has not found any evidence to confirm that Ihnatov took such actions".
So the inspection was over, and Ihnatov returned to work, but soon afterward he submitted a resignation letter of his own free will, which was granted at a meeting on March 27. His duties were assigned to Ruslan Sydorovych. The new leadership of the body has not been selected yet.

The Commission made an attempt to elect a new head on June 20. Two members, Andriy Pasichnyk and Ruslan Sydorovych, nominated themselves for this position. In his speech, Andriy Pasichnyk shared his vision of the body's future activities: greater activity in the judiciary, setting and observing deadlines for competitions. Ruslan Sydorovych spoke about the results of the competition to the first instance and thanked his colleagues for their help. He also emphasized the need to evaluate the activities of the National School of Judges, which will soon report to the HQCJ. Sydorovych did not announce any specific and achievable goals to be achieved during his first year as the Head of the Commission.

However, the Commission failed to elect a new chairman. After a second round of voting, none of the candidates gained a majority among the HQCJ members. The new date of the election is not yet known, but we hope that this time the Commission will decide on a new head.

The HQCJ is new, the Secretariat is old

The Secretariat of the HQCJ has been headed by Olena Ponomarenko since 2015. Prior to that, she also served as its deputy for a year and a half. It is Ponomarenko who is responsible for performing functions assigned to the Commission's secretariat, directing, coordinating and controlling the work of the structural units of the Commission's secretariat, as well as ensuring interaction between the structural units of the Commission's secretariat. 

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Photo: High Qualification Commission of Judges of Ukraine

There are a lot of questions about Ponomarenko's activities. First of all, during the audit of effectiveness of the Commission's use of budget funds during 2020-2022, the members of the Accounting Chamber found that the head of the secretariat systematically accrued and paid additional funds to herself and her deputy. Thus, the report states that Olena Ponomarenko and her deputy Oleksandr Bystrushkin accrued and received financial assistance in the following amounts: Ponomarenko – 367.000 UAH, Bystrushkin - 281.000 UAH. But there is one thing: only the head of the HQCJ has the right to accrue such payments, who, as we remember, was absent in 2020-2022. Therefore, quite logical questions arise: why was such financial assistance received and why did no one notice that payments were made in excess of authority and without resolving the conflict of interest?
Unfortunately, these facts were ignored by Ihnatov and Sydorovych. In addition, Ponomarenko remained in her position and increasingly began to appear at joint meetings of the management with representatives of donors and judicial governance bodies.

Questions have also begun to arise about Ponomarenko's ability to properly organize the work of her subordinate employees. We previously reported that the Secretariat was sabotaging the filling of judicial vacancies. For instance, for a long time, decisions on recommending persons for appointment as judges were not published on the Commission's website and were not sent to the HCJ, which is authorized to consider such recommendations and decide whether to submit a proposal to the President of Ukraine for appointment to the relevant position. Given the shortage of judicial personnel and the heavy workload in the courts, the issue of timely appointment of judges has become of great importance for the first time. After only one publication on the Commission's website, more decisions were published than in the month and a half before. A situation arose where decisions were prepared and signed by the Commission members in a timely manner, but then not sent to the HCJ for further decision-making.
By the way, in 2019 and 2022, Ponomarenko also expressed her desire to become a member of the HQCJ. In one of her questionnaires, she listed as her professional achievements the organization of competitions for vacant positions of judges of the Supreme Court and the High Anti-Corruption Court; selection of candidates for the position of judge; and qualification assessment for compliance with the position of judge. It is worth noting that Ponomarenko, as the head of the Secretariat, was responsible for the quality of the analysis of judicial candidates, but such analysis was superficial in most cases, which did not contribute to the goal of judicial reform. In addition, by a strange coincidence, two HQCJ employees, Musiyenko and Bilohrud, who decided to become judges, received surprisingly high scores for practical tasks, which allowed them to take high places in the final ranking. By the way, such scores were not received by judicial assistants who work with the texts of court decisions on a daily basis.

To achieve quality in the Commission's work, the integrity and professionalism of its Secretariat is essential. Unfortunately, this cannot be achieved with Olena Ponomarenko at its head. Therefore, it is very important to renew the management team and hold an open competition for key positions in the Secretariat.

Amendments to the Rules of Procedure and the new Anti-Corruption Program

On a positive note, the HQCJ has amended its Rules of Procedure, a document that defines the Commission's work and regulates procedural issues of its activities.

Thus, the new version now allows for the removal from office by a majority vote of the members of those who hold key administrative positions in the Commission - the head, his deputy and chamber secretaries. Such a recall is possible if the Commission's management fails to perform its duties satisfactorily, withdraws from the organization of the Commission's work, engages in improper and unethical behavior, or acts contrary to the requirements of the law. The procedure for selecting the management and organizing interaction with the Public Integrity Council (PIC) was also improved.

In a separate decision, the HQCJ approved a new form of the judge's integrity declaration, expanding the list of questions to be answered by a judge or candidate for the position of judge. Today, it is necessary to report whether the declarant has taken actions to acquire the citizenship of a foreign state; whether he or she and his or her family members have not visited the territory of the Russian Federation and/or the territory of Ukraine temporarily occupied by the Russian Federation; whether family members have visited the territory of the Russian Federation and/or the territory of Ukraine temporarily occupied by the Russian Federation. If there is information that a judge has indicated false information in such a declaration, the HQCJ may conduct an inspection, based on the results of which it may initiate a disciplinary case against the judge.
According to the Commission's website, the panels are currently reviewing the declarations of integrity and family ties that were submitted to the Commission before the dissolution. So it is not yet known how the verification of new declarations will be implemented in practice.

The HQCJ also started preparing a new Anti-Corruption Program. The working group includes both employees of the Secretariat and representatives of the public and the High Anti-Corruption Court. This program must be approved by the NACP.

Slow qualification assessment – who's to blame?

According to the law, the Public Integrity Council is supposed to assist the HQCJ in determining whether a judge/candidate for the position of judge meets the criteria of professional ethics and integrity. In other words, the PIC collects information about judges and provides it to the HQCJ, which makes the relevant decisions.

One of the first steps of the Commission on the way to resuming the qualification assessment after almost 4 years of interruption was the formation of a new composition of the PIC.

At the first joint meeting, Roman Ihnatov addressed the PIC members: "I hope we will not have any conflicts, and that we will resolve the issues under discussion in a civilized manner".
However, has the Commission really reached an understanding with the new composition of the PIC?

But first of all, let's look at some numbers and statistics. A total of 1,884 judges of local and appellate courts from all over Ukraine had to undergo the qualification assessment. Some of them will have to start this procedure by passing an exam (109 people), but the vast majority (1,775 people) have to go through the last stage - the dossier examination and interviews.

It's a lot of work, isn't it?
In his first interview as the head of the HQCJ, Roman Ihnatov identified completion of the qualification assessment of judges from big cities - from courts in Kyiv, Odesa, Dnipro, and Lviv - as one of his priorities. Spoiler alert: the assessment has not been completed, and the qualification of KDAC judges has not even begun: most of the judges have not yet passed the tests. So we have a situation where judges are not conducting court proceedings, but are receiving millions of dollars from the budget.
Only on June 19, the Commission scheduled exams for 105 judges of local and appellate courts. Among them are 30 DACK judges: Pavlo Vovk, Yevhen Ablov, Ruslan Arsiriy, Volodymyr Keleberda, Oleksiy Ogurtsov and others. As a reminder, they were supposed to take the exam back in April 2019, but did not show up for it, citing temporary disability. Although some of them were at work the very next day and were making court decisions. A month later, they did not appear for the exam again, and only 3 judges (Liubov Marulina, Tetiana Sheiko, and Maryna Boyarintseva) passed the exam and are waiting for the second stage of the assessment, which is the dossier review and interview. This time, the main exam date for the judges was set for July 9, with backup dates of July 30 and August 20.

As for the qualification assessment of other judges, it was supposed to resume in October 2023, but due to the lack of readiness on the part of the Public Integrity Council, it was postponed for a month. The first interviews of the Commission's panel were held on November 13, 2023.

During the first year of its operation, the HQCJ managed to conduct more than 130 interviews as part of the qualification assessment, some of which have not yet been completed. In total, the HQCJ panels made 88 decisions and another 72 decisions were made by the Commission's plenary, which directly relate to the results of the qualification assessment.

During a briefing on the one-year anniversary of the new composition of the HQCJ, Roman Sabodash provided interim evaluation statistics: based on 105 interviews, 84 judges were found to be suitable for their positions. Accordingly, 21 judges were found to be incompetent. 2 judges refused to undergo the evaluation. The evaluation of 19 judges was terminated.
This slow pace is due to the fact that in January-May, the HQCJ was interviewing candidates for the first instance. The judges themselves, by a strange coincidence, began to fall ill before their interviews, which caused the consideration of their cases to be repeatedly postponed.

It would seem that after the end of the competition to the first instance, the HQCJ should have increased the pace of interviews, but such interviews began to be postponed for other reasons, in particular, due to the lack of resources of the PIC to analyze judges. PIC members explain the slow pace of analysis by the lack of access to state registers and databases. If at the very beginning the PIC has difficulties in its work due to insufficient access to information and cannot analyze about 100 judges per month, as it was previously agreed at the first meeting with the HQCJ, the problems can only get worse at the next stage of qualification assessment within the competition to appeal.

In January, it became known that the HQCJ and the PIC jointly sent a letter to the G7 ambassadors stating that the NACP and the NABU had stopped providing the required amount of materials on judges undergoing qualification assessment. According to the authors of the letter, this significantly slows down the assessment procedure.

But the fact is that the NACP and the NABU are not obliged to do so, while the law clearly states that members and authorized employees of the secretariat have direct access to automated information and reference systems, registers and data banks owned (administered) by state bodies or local governments, use state, including government, means of communication and communication, special communication networks and other technical means (part 3 of Article 93 of the Law of Ukraine "On the Judicial System and Status of Judges").

However, we have a situation where the HQCJ lacks a comprehensive information security system (CIS), without which access to the registers is impossible. This problem should have been addressed by the body's leadership, but as we can see, there have been no changes.

In February, during a roundtable discussion at the Supreme Court, Ruslan Sydorovych announced his intention to create a full-fledged analytical center within the HQCJ that would analyze information from all state registers on judges. But so far, the intention has remained only an intention, and no steps have been taken towards the creation of the center in 4 months. As the saying goes, promising is not fulfilling.

Another problem that emerged during the qualification assessment was that some members of the HQCJ sometimes failed to comply with certain indicators that had been previously agreed upon with the PIC.

For instance, on November 23, 2023, during the announcement of results of the interview (02:03:58 - 02:05:38) with the judge Klyuchnyk Andriy Stepanovych of Svyatoshynskyi District Court of Kyiv, the speaker Chumak S.Y., it was announced that 3 members of the Commission - Hatselyuk, Kolyush and Volkova - voted against the decision to recognize Klyuchnyk as incompetent to hold the position.
However, facts found by the Commission during the interview with the judge and set out in the PIC conclusion of November 15, 2023 showed that the judge clearly did not meet the criteria of integrity and professional ethics. In addition, it was obvious from the judge's answers to the questions of the Commission members that he wanted to mislead them.

In many of its conclusions, the PIC continues to draw the HQCJ's attention to the fact that judges allow for litigation and make decisions in favor of drunk drivers. However, the Commission, in its turn, often mostly rejects such arguments.
It was only a year later that the HQCJ developed a procedure for access to the PIC members' dossiers of judges and candidates for the position of judge. Lyudmyla Volkova voted against such access and the procedure in general (drum roll). According to the law, the PIC members have full access to such dossiers, and public access is provided through the official website of the Commission. After the full-scale intrusion, on the recommendation of the Council of Judges, the Commission closed public access to the dossier, which has not yet been restored.

Filling the system with new personnel

● Old new competition to the first instance.
In September 2023, the HQCJ announced the competition to fill 560 vacant judgeships in local courts for candidates enrolled in the vacancy pool (decision No. 95/zp-23 as of September 14, 2023).
In December 2023, the selection procedure for vacant positions of local court judges changed significantly. Thus, according to the amendments, after determining the winner of the competition, the High Qualification Commission of Judges of Ukraine conducts an interview with him/her at its meeting. Based on the results of the interview, the Commission decides to recommend or refuse to recommend the appointment of the candidate to the position of a judge; a decision to recommend the transfer of a judge (if the winner of the competition for the position of a local court judge is a judge).
On May 29, 2024, the HQCJ reported on the results of the competition. A total of 434 interviews were conducted. According to the results of the interviews:→ participation of 8 candidates was terminated (at their request);→ 36 candidates were denied recommendations for appointment to the position of a judge;→ 390 candidates were recommended for appointment as judges to 266 courts.
The speed of the interviews sometimes did not mean their quality. For instance, the Commission's panels used different approaches to assessing candidates and recommended appointing those candidates who had received public criticism. From the point of view of an outside observer, the motives for recommending such persons are unclear. The decisions to recommend such persons are formal and do not contain any explanation as to why the Commission members rejected certain comments from the public.
In particular, Panel No. 4 recommended appointing Kyryl Oliynyk, an assistant judge of the Supreme Court, as a judge. An appeal was previously sent to the Commission outlining the facts that indicate that the candidate does not meet the criteria of integrity and professional ethics: the candidate did not declare his brother's income of UAH 1 million and could have understated the value of his property to avoid financial monitoring. Despite these and other comments from the public and some members of the Commission, the candidate still received a recommendation.
The panel also recommended candidate Bazov, who had questions not only about his compliance with anti-corruption legislation, but also about his professional competence.

Another panel (No. 2) was able to demonstrate lightning speed in conducting interviews. Thus, the interview with one of the winners lasted 7 minutes. We are talking about Olha Mykhaliuk, an assistant to the head of the Economic Court of Appeal and the wife of a judge. According to the declarations, both the candidate and her family members own valuable property, the source of the funds for which is unknown. However, the panel members were only interested in whether the candidate would be able to move to another area. After receiving the desired answer, the panel recommended Mykhalyuk for appointment as a judge.
As mentioned above, in the case of qualification assessment, the Commission evaluates judges based on criteria approved jointly with the PIC. Whereas in the case of the selection of candidates for the position of judge for the first time, there are no such criteria yet. And it is precisely because of their absence that obviously dishonest candidates will be able to get the judicial mantle.

● Unprecedented competition to the appeal.
At the end of last year, the HQCJ also announced the launch of open competition to fill 550 vacant positions of appellate judges. The HQCJ positions this competition as unprecedented in terms of the number of vacancies, the selection procedure, and those who can participate in it.

Out of 2076 candidates who applied for the competition, 1850 will continue to compete for the judgeship.

During 6 months that the competition has been underway, only in June the HQCJ scheduled the qualification assessment of candidates, determined the order of its stages, and approved the Regulation on the procedure for passing the qualification exam and the methodology for assessing candidates. The Commission has not yet made public either the tests or samples of practical tasks to be performed by future judges.

The test questions on law (basics and answer options) will be published in July. The date of the tests is not yet known, so it is unlikely to be in July. It is currently known that the computer test program will generate a unique set of tests for each candidate. This set of tasks will not be the same as the tasks performed by other candidates in the same group. The result of the task will be issued immediately after the tests are completed. As for the practical tasks, candidates will complete them on personal computers. And while the test tasks will be checked automatically, the practical tasks will be checked by the relevant board depending on the specialization.
It is extremely important that the HQCJ develops a unified practice of checking practical tasks, as it is known that both relatives of the HQCJ members themselves and current HCJ members participate in the competition. Without this, public confidence in the competition will be impossible.

● More HACC judges.
The High Anti-Corruption Court became the first court to select its judges with the participation of international experts - the Public Council of International Experts (PCIE). The court began its work in September 2019, and 39 judges were elected to the first instance and appellate courts. For almost 5 years of its work, the HACC has shown excellent results. However, the need to increase the number of judges of the High Anti-Corruption Court was later identified, in particular, due to the complexity of the cases under its consideration, as well as legislative changes that significantly expanded the court's powers.

In September last year, the HCJ determined the new number of judges in the HACC - 63, including 21 positions in the Appeals Chamber. Two months later, the HQCJ announced a competition to fill 25 vacant positions of HACC judges and determined that the acceptance of documents from those who wish to apply would begin in March. This period of time was supposed to be enough to prepare all the necessary documents.

A total of 238 people submitted their documents for the competition. 161 candidates continue to participate in the competition.
On April 29, 2024, the Commission selected a new composition of the PCIE, which includes six recognized legal experts - judges and prosecutors with experience in Estonia, the USA, Lithuania, the Netherlands, and Canada. Namely:
1. Mary K. Butler
2. Gabrielė Juodkaitė-Granskienė
3. Nоrman Aas
4. Robert Hein Broekhuijsen
5. Jessica Lott Thompson
6. John J. O’Sullivan

The PCIE's task will be to assist the Commission in conducting the competition for vacant positions of the HACC’s judges.

As with the competition for the appeal, on June 19, the Commission scheduled the qualification assessment of candidates and determined the order of its stages: the first stage is the qualification exam, the second is the dossier examination and the interview.

● Establishment of the KCDAC and HAC.
In December 2022, the Verkhovna Rada of Ukraine voted and the President Zelenskyi signed a law liquidating the Kyiv District Administrative Court and establishing Kyiv City District Administrative Court (KCDAC). The new court was registered in February 2023. Nataliya Olenchenko was appointed interim head of staff. After the court starts operating, all cases under the jurisdiction of Kyiv that were temporarily considered in the Kyiv District Administrative Court during the transition period will be redirected to it. The HCJ has previously determined that the court will consist of 51 judges. This calculation was based on the number of KDAC judges at the time of its liquidation.
In addition, the Memorandum between Ukraine and the International Monetary Fund dated March 24, 2023, provides for the establishment of a court that will consider cases against national government agencies (NBU, NABU, NACP, etc.). The establishment of such court will also entail significant changes to the Code of Administrative Procedure, with a clear definition of jurisdiction.
So far, the creation of such courts and the selection of judges for them are not even in the question.
Conclusions
From the very beginning of the formation of the new HQCJ, it has been repeatedly said that this particular composition could go down in history, since it has perhaps the greatest responsibility - to check the integrity of about 2,000 judges, to hold competitions to the courts of appeal, the High Anti-Corruption Court, and to select judges to Kyiv City District Administrative Court, the High Administrative Court, and the High Court of Intellectual Property from scratch. However, how this composition of the High Qualification Commission will be remembered in decades to come depends solely on its members. Obviously, there is no more time for mistakes and delays.
As the first year of the Commission's work has shown, high quality competitions are impossible without a number of factors, namely clear planning of activities and adherence to such a plan, a professional Secretariat, and, most of all, awareness of the importance of changes in the system and the desire to achieve them. With the latter factor in place, even given the rather slow progress in the first year, the Commission members still have a historic chance in the next 3 years to do what no one before them has managed to do.