Judicial matrix: continue assessing the judges of low integrity or begin assessing the Supreme Court

On July 2, 2024, the Grand Chamber of the Supreme Court issued a ruling in favour of Judge Vitaliy Usatyi. This decision marked a sharp departure from the Court’s previous stance and jeopardised the qualification assessment process for 180 judges who have received negative opinions of the Public Integrity Council (PIC) for integrity issues but have yet to receive a final verdict from the full composition of the High Qualification Commission of Judges (HQCJ). Among these judges are individuals recently caught accepting bribes, such as Volodymyr Serdinsky and Serhiy Burkhan, as well as judges from the scandalous District Administrative Court of Kyiv, like Kostyantyn Kobyliansky, Dmytro Kostenko and others. These judges are known for possessing assets far exceeding their declared income, aiding authorities in suppressing protests during the Revolution of Dignity, being appointed due to family connections, and mass release of drunken drivers from responsibility. Mariya Demydova, the cousin of a member of the High Council of Justice (HCJ), Serhiy Burlakov, is also on the list.

According to the Constitution, all judges who were serving in 2016 are required to undergo a qualification assessment to determine suitability for their positions. This process involves scrutinising their competence and integrity. Judges who fail to meet these criteria can be dismissed. Cleansing the judiciary of such individuals is a central goal of judicial reform.

In addition to this procedure, the law also provides for the assessment of judicial candidates to determine their ability to administer justice. This assessment applies when a judge is competing for a higher-level court position or as part of a disciplinary sanction. Though these procedures have different names, they have been regarded as identical by both the Supreme Court and the HCJ for the past eight years.

Consequently, if a judicial candidate confirmed their ability to administer justice during a competition, they were considered to have passed the qualification assessment for their current position. This is why, for example, judges who successfully competed for positions in the Supreme Court did not undergo a separate qualification assessment that could lead to their dismissal.

However, if a judge received a negative opinion from the PIC, the decision on their suitability for their current position was first made by a three-member panel of the HQCJ, and then confirmed by the full HQCJ with at least 11 votes.

This interpretation of the law was consistently upheld by the Grand Chamber of the Supreme Court in cases involving judges Mariya Zelinska, Pavlo Horbasenko, Lyudmyla Sheremetyeva, Inna Otrosh, and Oleksandr Kukoba. Yet, in judge Usatyi’s case, the Grand Chamber, without adequate justification, ruled that the assessment procedures described above are distinct and cannot be equated. In other words, when there is a negative opinion of the PIC during the judge’s suitability check, the decision of the three-member HQCJ panel is considered final. Thus, judge Usatyi has already passed his qualification assessment and does not need to confirm his integrity through a decision by the full HQCJ.

We believe that the Grand Chamber’s conclusions in Judge Usaty’s case contradict the law, previous Supreme Court practice, and most importantly, the goals of judicial reform, which aim to rid the system of judges with questionable integrity.

More than a month has passed since the Supreme Court’s ruling. However, neither the HQCJ nor the HCJ has publicly stated their positions. Meanwhile, during this period, they have not made any decisions regarding the 180 judges with integrity reservations.

Given the content of the law and the previous practice of the Grand Chamber, we believe that the HQCJ can and should continue the assessment of approximately 180 judges following the single procedure established by law – either upholding or rejecting the HQCJ panel’s decision in full composition. All recommendations for dismissing judges from their positions should be reviewed by the High Council of Justice. Therefore, we urge the HQCJ and the HCJ to continue assessing other judges with negative PIC opinions in accordance with previous practice.

Conversely, if the HCJ and HQCJ endorse the Supreme Court’s position, they should recognise that current Supreme Court judges who held judicial positions in 2016 did not fulfil their constitutional duty and did not undergo the assessment for their positions. This directly follows from the Supreme Court’s Grand Chamber decision. If this is the case, we demand that the HQCJ immediately begin the qualification assessment of the Supreme Court judges. It would be fair to start with the judges of the Grand Chamber, who themselves made such a conclusion.

The choice is now in the hands of the HQCJ and the HCJ – either continue the assessment of 180 judges with negative PIC opinions or, guided by the Grand Chamber’s position, begin assessing the suitability of the Supreme Court judges. We call on the HQCJ and HCJ to take a clear stance on this issue and make it public.

Signatories:

• DEJURE Foundation
• Anti-Corruption Action Center
• Automaidan
• Chesno Movement
• Anti-Corruption Center MEZHA
• Kharkiv Anti-Corruption Center
• Anti-Corruption Headquarters
• Hromcontrol
• Bihus.Info
• ACREC (Ukrainian Anti-Corruption Research and Education Center)