On September 28 at the press center of the Gorshenin Institute, the round table on “The new Supreme Court: what is going on behind the scenes of the so-called “transparent” competition?” was held. The speakers were Mykhaylo Zhernakov, the head of the DEJURE Foundation, a member of the Council of Resuscitation Package of Reforms; Halyna Chyzhyk, a lawyer of the campaign “CHESNO. Filtruy sud!”; Vitaliy Shabunin, a chairman of the Center for Combating Corruption, and Vitaliy Tytych, a coordinator of the Public Integrity Council. The public was expecting to hear something new and interesting, perhaps even something meaningful from the members of the Public Integrity Council, but, unfortunately, the main message of this event to the society was approximately the following: it is solely the President of Ukraine Petro Poroshenko who bears responsibility for the dishonest judges who were selected on a competitive basis.
In fact, all that was said by the dear speakers were just clichés which they proclaimed at the various actions that have been organized by the activists over the past few months. One of such events, “March of Dishonesty” (“Marsh neChesti”), was held in Kyiv on September 13. And not only ordinary Kyiv residents, but also lawmen who doubted the honest attitude of the very members of the Public Integrity Council to the candidates who have passed the competitive selection to the Supreme Court of Ukraine were left with a bad feeling after that event. And most judges are simply indignant at the not very transparent work of the Public Integrity Council, which is full of double standards: “… Demanding openness and accountability from others, they themselves do not perform in the same way. They do not provide information about their techniques. They do not provide responses and information to the requests. They do not tell what criteria they use when assessing candidates”.
But let’s get back to the speeches of the members of the Public Integrity Council at the round table.
Mykhaylo Zhernakov did not sound too sure about the fact that the Public Integrity Council “did not inspire either the process that took place in the Supreme Council of Justice, nor, as yet, the result of this consideration”, noting that it was too early to speak of any result, since the Supreme Council of Justice had not yet come out of the conference room. I can’t speak for others but I have a question, why did the round table take place before the end of the conference? Why to put the cart before the horse? Except to cause a regular society’s indignation.
Meanwhile on September 29, the Supreme Council of Justice has already recommended 111 candidates for the posts of judges to the Supreme Court of Ukraine. This fact was stated by the chairman of the Supreme Council of Justice, Ihor Benedysiuk, during the briefing: “The whole procedure lasted for nearly a year. Therefore, in my opinion, the candidates were considered very carefully, especially in the stage of competitive procedures conducted by the HQCJU. I say they were considered carefully because it was more time to consider all the candidates”, stated the high official. At the same time, Mr. Benedysiuk noted that all candidates who were recommended for consideration to the Supreme Council of Justice were subjected to appropriate inspections of the National Anti-Corruption Bureau of Ukraine and of the National Agency on Corruption Prevention. “No remarks from these bodies were received by us. With regard to the conclusions of the Public Integrity Council, I would like to note that all of them were considered by the HQCJU and decisions were taken on those conclusions in accordance with the procedure established by the law. The Supreme Council of Justice, which reviewed the materials, also clarified those issues for themselves, but only in the manner to what extent the conclusions of the HQCJU were substantiated in the case when those remarks were made in the conclusions of the Public Integrity Council. We also figured out those issues with the judges in order to make our decision whether the conclusions were substantiated”, said Ihor Benedysiuk.
Analyzing the issues of the conclusions of the Public Integrity Council, the official noted that those conclusions were advisory to the HQCJU. “It is exactly at this state body that the Public Integrity Council was created. It is exactly for this purpose that these conclusions exist. That is before a competitive procedure, when all candidates are considered, the HQCJU should consider and clarify all issues before recommending candidates for election. Including those issues that are related to the conclusions of the Public Integrity Council. The Supreme Council of Justice itself does not consider these conclusions”, he said.
Now, let’s recall what Mr. Zhernakov was thinking about the day before. A member of the Public Integrity Council emphasized that, according to the Constitution, the Supreme Council of Justice would have to choose judges who are honest, competent and speak the official language. But it turns out that the competence of the judges, that is, their professionalism, in the opinion of Mr. Zhernakov, is not essential for a judge of the Supreme Court, the most important thing is their integrity. One can agree that a judge of the Supreme Court must be honest, but can an honest but incompetent person get a post in the Supreme Court?
In his speech, a coordinator of the Public Integrity Council Vitaliy Tytych said: “At the end of the competition, we recorded a number of violations of the procedure established by the High Qualification Commission of Judges, including an increase in misunderstanding with what was happening to our work behind the scenes of the HQCJU. On the completion of that part of the competition in the HQCJU I personally didn’t understand what actually had happened and how our work had been appreciated”. According to Mr. Tytych, the members of the Public Integrity Council did their best, therefore the further imitation of the participation in the selection process to the Supreme Council of Justice did not make sense, and that’s why they stopped attending the meetings. At first glance it seems that the members of the Public Integrity Council really did everything they could. But just imagine that brothers Orville and Wilbur Wright refused theirs attempts to construct an airplane just because someone ignored their idea. Perhaps it was necessary to continue to go to meetings and defend their beliefs in order to perform the functions assigned to the Public Integrity Council, rather than to arrange circus performances, just aiming to grandstand.
Halyna Chyzhyk, a lawyer of the company “CHESNO. Filtruy sud!” not only expressed her opinion that the result of the semi-annual work of the High Qualification Commission of Judges on the selection of candidates was that every fourth in the list of winners was unfair, but also emphasized: “Even if one of the thirties becomes a judge of the Supreme Court, this will undermine trust not only in the Supreme Court of Ukraine as a newly created institution, but also in the judicial reform in whole. Because these 30 candidates have demonstrated their willingness to comply with political orders while performing their previous activities at the highest positions in the judiciary”. There is only one question to this lady: if one employee works poorly, then we can assume that all other workers are also bad?
There is nothing we can say about the speech of Vitaliy Shabunin, a chairman of the Center for Combating Corruption, because the main message of his speech is completely predictable – the President Petro Poroshenko himself has chosen candidates to the Supreme Court and therefore he should be politically responsible for the presence of unfair judges in the Supreme Court. Mr. Shabunin said: “To wait for him (for the President) to remove these thirty candidates? No. The President now has one problem: how to explain that these thirty candidates, or maybe twenty-five candidates, will appear. He has an excellent explanation: my signature is ceremonial, I cannot interfere in the competition procedure”. To be honest, we don’t expect anything else from Mr. Shabunin, because he sees the “President’s hand” in all the negative situations: the Kharkiv activists weren’t allowed to the session of the city council – Poroshenko was responsible for that. So what if the President is at the UN General Assembly in New York? He has to answer for Kernes’s act, so let’s go down to the Presidential Administration and hang around a little in front of the audience.
But let’s return to Mr. Shabunin’s statements at the round table: “The new-old Supreme Council of Justice is his decision. He was told that it was necessary to update this body. The same applies to the Qualification Commission. That is, the ultimate political responsibility for the presence of these people in the final composition of the court is borne by the President personally”.
So, this is what the round table appeared to be. Nevertheless, things are working out strange enough with regard to the members of the Public Integrity Council: to organize the round table discussion of the work of the Supreme Council of Justice in the absence of the members of the Supreme Council of Justice themselves and to blame the Council for making incorrect decisions even before the Supreme Council of Justice announced the list; as far as their own failures and inability to find a common language with the members of the Supreme Council of Justice are provided as an integrity.
The activists, in a nutshell.
And one more thing. The Ukrainian Bar Association has found out that during the competition to the Supreme Court, in 17 cases the Public Integrity Council used unreliable sources of information, in 21 cases it gave the assessment to the court decisions on candidates which the public body wasn’t empowered to do, and in 4 cases it showed the unequal approach to the assessment of specific facts and circumstances.
So that’s just how this goes.