Halyna Chyzhyk • DEJURE Foundation • Читати українською
Competition to the High Anti-Corruption Court: What Can Go Wrong?

In August, competition to the High Anti-Corruption Court was officially launched. This body will be the last one in the system of anti-corruption authorities and will make decisions in cases on bringing top officials of the country to justice for corruption crimes.

The need to establish a separate court to consider top corruption cases is conditioned by inefficiency, corruption and collective irresponsibility in the courts. According to NABU, as of August 30, 2018, consideration of 46 of the 144 cases handed over to the court by NABU has not been initiated yet due to various delays, and decisions have been adopted in 33 cases only. That being said, only three people received sentences of imprisonment. We are still waiting for sentences in the cases of former military prosecutor Kostiantyn Kulyk, former head of the State Fiscal Service Roman Nasirov, 'shooter' judge from Odesa Oleksii Buran.

That is why Ukrainian society has very high hopes for the new anti-corruption court and expects corrupt officials to be finally brought to justice. To a large extent, the quality and efficiency of the court depends on its composition. Of note, the High Anti-Corruption Court will consist of 27 judges, and the Appeals Chamber of this court will be composed of 12 judges. The judges are selected by the High Qualification Commission of Judges of Ukraine which draws up the final ranking and provides recommendations to the High Council of Justice. The latter reviews the list of recommended judges and submits it to the President for signing.

During the first competition to the Supreme Court, which began 2 years ago and lasted for more than a year, the public actively monitored and recorded all violations and manipulations that took place. After the announcement of the competition results, the public was forced to state that the process was a fake, which resulted in the appointment of the candidates loyal to the authorities. In order to form an independent and honest High Anti-Corruption Court, it is important to prevent the repetition of the same violations and manipulations that took place during the competition to the Supreme Court. DEJURE Foundation experts have identified key risks that jeopardize the results of the competition and offered their solutions.

Risk 1: Attorneys may not be allowed to participate in the competition
One of the key advances in the judicial reform is the opportunity for the non-system lawyers to become judges of the high courts. However, lawyers may be disqualified from the competition as early as at its first stage — during the documents submission. According to the law, a lawyer applying for a judge of the High Anti-Corruption Court must have seven-year experience of legal work. The High Qualification Commission of Judges of Ukraine in its internal documents has established that, in order to confirm the existence of such experience, lawyers, in particular, must submit duly certified copies of court decisions which indicate their surnames. Such a requirement for lawyers is excessive, because, firstly, they may not store court decisions on client cases, and secondly, experienced lawyers may not participate in court sessions providing general guidance to younger colleagues and solving strategic tasks. In addition, lawyers do not always have the right to disclose information about the cases of their clients.
SOLUTION
Cancel the requirement for the lawyers to confirm the availability of the necessary experience through the experience of participating in court sessions.
Risk 2: Due to poor verification by NAPC (National Agency for Prevention of Corruption), candidates concealing their wealth can become judges
Before the candidates start a competition for a place in the court, they must undergo a special verification whereunder HQCJ submits requests to various government agencies in order to find out information on education, health, facts of bringing a candidate to criminal liability, etc. One of the bodies HQCJ applies to is the National Agency for Prevention of Corruption which must confirm the reliability of data in the candidate's declaration. Candidates that have provided false information on their wealth in the declarations should be disqualified, however, due to poor NAPC's performance, they can continue to participate in the competition.

Thus, during competition to the Supreme Court, the Public Integrity Council revealed false information in the declarations of at least 44 candidates, who have successfully passed the NAPC's verification, at the qualification assessment stage. As it turned out, NAPC employee Tetiana Shkerbko, convicted for participation in the organized crime group led by Viktor Yanukovych, was responsible for verifying candidates to the Supreme Court. Also, NAPC management has classified the results of this verification, as stated by the discloser Anna Solomatina. Unfortunately, the High Qualification Commission ignored the facts revealed by the Public Integrity Council referring to the NAPC findings and continued participation of candidates in the competition.

SOLUTION
When assessing integrity, HQCJ must carefully check information on the candidate's wealth, abandon formal approach and refrain from favoring NAPC's findings as the official source of information. In addition, HQCJ should be guided by other sources, such as data from state registries, investigations by reputable journalistic publications, etc.
Risk 3: Minimum admissible score can be set in favor of specific candidates
Candidates who have successfully passed special verification participate in a two-stage qualification assessment. The first stage, the exam, consists of anonymous tests on legal knowledge and writing a court decision based on case materials. The second stage, the interview, is held for the candidates who receive the minimum admissible score for the test and practical tasks.

In accordance with the Regulation on the Qualification Assessment Procedure and Methodology, minimum admissible scores for the anonymous written test and practical task are determined by the decision of the HQCJ based on the criterion method. The criterion method means that the members of the commission by analyzing test questions or practical tasks determine (assess) the weight of the correct answer to each question or practical task performance indicator for a minimally trained potential judge. Thereafter, each member of the committee puts the minimum admissible score, the scores are averaged, and these mean values are used to determine the minimum admissible score for anonymous written test or practical task (in accordance with the Procedure for Conducting Exam and Method for Establishing Its Results).

These rules require the HQCJ to determine the minimum admissible score before the exam. However, during competition to the Supreme Court, HQCJ members determined the minimum admissible score after the test results became known and after they had checked the candidate's practical assignment. Although the HQCJ insists on setting a minimum score based on depersonalized results, this approach is a violation of the rules set by the commission itself, and we cannot guarantee that the scores are not adjusted for the benefit of specific candidates.

Thus, during competition to the Supreme Court, the HQCJ established minimum admissible score for candidates to the Cassation, Civil, Administrative and Commercial Courts at 60 out of 90 points, and for candidates to the Cassation Criminal Court — at 54 points. Subsequently, HQCJ allowed candidates who did not get the minimum admissible score for the practical assignment to participate in the interview. Though by its nature the minimum score is a cut-off score, 43 candidates who failed to get passing score subsequently were somehow put on the list of those who can participate in the second stage. They include former judge of the Supreme Administrative Court, Mykhailo Smokovych, who, through HQCJ's manipulation, became the judge of the Cassation Administrative Court and even headed it.

Afterwards, HQCJ legalized this manipulation by introducing changes to the qualification assessment methodology.

SOLUTION
Establish a minimum admissible score for anonymous written test and practical task based on the tasks by the time of the exam taken by the candidates, as provided for in the Examination Procedure; candidates who have not obtained the minimum admissible score for anonymous written test or practical task should not be admitted to the next stage of assessment — interviews and dossier analysis.
Risk 4: The process of determining the results of a practical task is completely classified, which creates opportunities for manipulation
Practical task means that candidates have to write a court decision based on materials of a fictitious case. Practical tasks are prepared by external experts. They have to prepare a story that is as close as possible to real events and can use materials of real court cases. During competition to the Supreme Court it was revealed that some candidates received assignments based on cases they themselves had considered several months before. The problem was that the text of the task was copied from the materials of a particular case in its entirety, the details of all parties, all factual circumstances, dates, etc. were also provided. Thus, certain candidates had advantage over others.

However, the main risk of the practical task is that the process of checking the work (the check is carried out by the HQCJ members) is completely secret — the public can see neither the texts of the works of the contestants, nor the methodology based on which these works are assessed, nor, in fact, scores given by each HQCJ member to the candidates. Mathematical analysis of scores of the candidates to the Cassation Administrative Court of the Supreme Court proved probable manual correction of points. In the middle of the ranking, where there was to be the largest number of candidates with similar scores, there was a gap that contradicted the laws of mathematics. However, in order to dispel any doubts as to manual adjustments and manipulations, HQCJ flatly refused to disclose as much as the assessment methodology, let alone the work of the candidates or the scores given by commission members. It is also noteworthy that judge of the Kirovohrad Regional Administrative Court, Roman Brehei, whose decision was presented as a reference for future judges at the National School of Judges, was one of the candidates who failed to get the minimum score.

It is important to note that the Law of Ukraine "On the Judiciary and the Status of Judges" requires the HQCJ to ensure transparency of the exam and does not contain any rules that would prohibit the HQCJ to disclose the works of the candidates, method of their assessment or scores.
SOLUTION
Ensure disclosure of practical tasks, methodology for assessing candidates' works, texts of the tasks performed by the candidates and scores given by each HQCJ member.
Risk 5: Moral and psychological tests are aimed at finding loyal candidates, and their results are misinterpreted by the HQCJ members
Candidates who have successfully passed the exam stage are tested for moral and psychological qualities. The test evaluates the level of personal and social competence, integrity of candidates and their compliance with the requirements of professional ethics. The test does not reveal good or bad candidates, it just shows which candidates are better suited to the position of a judge of the high court. Initially, candidates do tests, and then they are interviewed by a psychologist who prepares a general opinion.

By law, the results of moral and psychological tests are not made public since these data represent sensitive information about a person, and candidates can access them only in response to a request sent to the HQCJ.

During competition to the Supreme Court, certain candidates disclosed their test results which showed that there was a separate indicator in the assessment — criterion of loyalty to superiors and willingness to comply with corporate rules. In some cases it led to absurd situations. For example, psychologist's negative opinion on the integrity of the lawyer Maksym Selivanov prevented him from becoming a judge despite the fact that after the first stage of the competition he held the highest positions in the ranking. Selivanov showed high results by the criteria of personal and social competence, but psychologists assessed the level of his integrity as low because they saw the risk that Maksym Selivanov was an independent lawyer and was not subordinated to anyone in his work. Based on this, psychologists made assumptions (!) that he may have difficulty complying with corporate rules.

Obviously, loyalty is not a feature that should be inherent in a judge of the Supreme Court or Anti-Corruption Court. However, it is the search for loyal candidates that the HQCJ methodology is aimed in terms of determining integrity. Thus, according to the document, HQCJ members assess integrity based on the following indicators:

→ Honesty and decency;

→ Absence of counterproductive actions;

→ Lack of predisposition to abuse.

Thus, candidates demonstrating independence and open worldview become outsiders in the competition whose methodology is aimed at finding loyal employees.

At the same time, according to the qualification assessment methodology, about 400 out of 1000 points are obtained by candidates on the basis of the results of moral and psychological tests. These scores based on the psychologist's opinion are given by the HQCJ members. However, the commission discloses neither the psychologist's opinion nor the scores, which makes it impossible to verify that the HQCJ members have correctly assessed the candidate.
SOLUTION
Change approach to assessing integrity of the candidates which will favor candidates who demonstrate a high degree of independence, integrity and incorruptibility; envisage engagement of psychologists into the process of determining scores so that they could monitor the correctness of interpretation and scores given by the HQCJ members.
Risk 6: Lack of clear criteria for integrity creates opportunities for manipulation with scores that a candidate can obtain
According to the qualification assessment methodology, 500 out of 1000 points, i.e., 50% of the maximum score, are obtained by candidates within the framework of the criteria of integrity and professional ethics. 300 of 500 points depend on the results of moral and psychological tests, the remaining 200 points are given at the sole discretion of the HQCJ members.

The qualification assessment methodology does not contain criteria, it only determines the indicators evaluated by the HQCJ. For example, according to the methodology, when analyzing a candidate according to the integrity criterion, HQCJ should assess the truthfulness of the data in the declaration of integrity, compare candidate's lifestyle with the declared income, assess the existence of violations of ethical norms or discipline, as well as behavior that does not meet the candidate's status. Despite the fact that the HQCJ has conducted a competition for the Supreme Court, where it assessed the integrity of 380 candidates, and a qualification assessment of almost one hundred thousand judges, it is still unclear which criteria the commission is guided by. After all, decisions based on identical factual data are very often completely different. These criteria cannot be deduced from the HQCJ decisions as these decisions are not motivated, and scores awarded to the candidate for each of the assessment indicators are not made public at all. The lack of pre-established criteria and indicators of violations, as well as lack of transparency in the decisions and assessments creates opportunity for manipulations with scores in favor of specific candidates or vice versa. Thus, one of the main assessment criteria — integrity — remains behind the scenes, while the other indicators influence the final scores of candidates.
SOLUTION
Publish clear criteria for assessing integrity and professional ethics and indicators of violation of these criteria; publish scores that candidate receives for each of the indicators with proper motivation.
Risk 7: The final ranking is not transparent, decisions and scores that candidates receive for each of the assessment indicators are not disclosed, which calls into question the fairness of the competition
The assessment methodology clearly establishes how many points a candidate can obtain for each of the assessment indicators. However, out of 1000 points, HQCJ discloses scores for the anonymous test and practical task only (maximum — 210 points). The remaining 790 points are distributed secretly by the HQCJ members. It is not possible to find out how many points a candidate received for each of the assessment indicators since neither scores nor motivated decisions with explanations are made public. In other words, the public does not understand why one candidate is ranked first and the other one is 31st in the ranking. Such an approach jeopardizes credibility of the competition results, and the HQCJ's refusal to provide any explanations further exacerbates doubts as to scoring fairness. In fact, classification of the process of giving 790 out of 1000 points can falsify the results of the competition with a view to appointing candidates who are loyal to the authorities.
SOLUTION
Disclose the scores the candidates received for each of the assessment indicators in accordance with the assessment methodology; publish decisions with the substantiation of the candidate's scores for each of the assessment indicators. This will increase credibility of the competition results and will make the HQCJ members assessing the candidates personally responsible.
Risk 8: HQCJ and HCJ (High Council of Justice) members may make decisions with a conflict of interest
According to the Laws "On the Judiciary and the Status of Judges" and "On the High Council of Justice", HQCJ and HCJ members shall not participate in the consideration of matters and decision-making in the event of a conflict of interest. These are cases of close relations between candidates and members of these bodies or other circumstances that affect the bias of the HQCJ and HCJ members.

During the first competition to the Supreme Court, the HCJ ignored this requirement of the law. Thus, HCJ members had at least 71 cases of probable conflict of interest during the consideration of candidates. The HCJ members themselves filed 52 withdrawals, but only 4 of them were approved in the consultation room.

The public also pointed to the conflict of interest among the HQCJ members. In particular, some members of the commission exhibited the same unjust behavior that became the basis for the opinion of the Public Integrity Council with respect to candidates. The activists urged the HQCJ members to refrain from voting on such facts. However, these calls were ignored. One of the vivid examples of decision-making with a conflict of interest is the case of a candidate Viacheslav Nastavnyi. Nastavnyi was a member of the commission which appointed Taras Lukash as a HQCJ member. Despite the apparent conflict of interest, Taras Lukash participated in the voting on Viacheslav Nastavnyis candidacy, who eventually became a judge of the Supreme Court.

The fact of ignoring conflicts of interest by the HQCJ and HCJ members calls into question the objectivity and fairness of their decisions.
SOLUTION
HQCJ and HCJ members should abstain from voting in the event of a conflict of interest or external observers' doubt about their impartiality; if HQCJ and HCJ member files for withdrawal, it should be satisfied automatically.
Risk 9: Candidates lacking integrity may become Judges of the High Anti-Corruption Court because of the HCJ's refusal to carry out a check
After drawing up the final ranking, HQCJ determines the winners of the competition and hands their dossiers over to the High Council for Justice. HCJ's task at this stage is to check the materials received, to study the dossiers of the winners and decide whether to recommend these candidates for appointment to the President.

By law, if there is a reasonable doubt as to whether the candidate meets the criteria of integrity or professional ethics or other circumstances that may adversely affect public confidence in the judiciary in connection with such appointment, it may refuse to make a submission to the President of Ukraine regarding the appointment of a judge. Also, HCJ does not recommend a candidate in case if the procedure for appointment was violated. This means that the role of the High Council of Justice in the procedure for selecting judges is not formal since it obliges the council to assess the integrity of each candidate and to take into account the possible negative consequences in case of appointment.

Unfortunately, the results of the first competition to the Supreme Court showed that the HCJ uses such powers at random. Thus, out of 120 candidates submitted by the HQCJ, HCJ did not recommend only two candidates — Tetiana Frantovska and Volodymyr Matiukhin. The reason for Tetiana Frantovska's disqualification was her failure to declare her property and corporate rights. However, the High Council of Justice ignored the facts of non-declarations which were indicated by the Public Integrity Council with respect to other candidates. In total, out of 30 candidates as to which the Public Integrity Council made its conclusions it was Tetiana Frantovska only that was withdrawn from participation in the competition by HCJ's decision.
SOLUTION
The High Council of Justice should ensure that the candidates submitted by the HQCJ are carefully examined on the basis of the criteria of integrity and should not recommend the appointment of candidates who received a negative public opinion. It is this approach only that will ensure trust in the newly appointed judges.
The material was published with the support of the Embassy of the Kingdom of the Netherlands in the framework of the project MATRA. The content of this publication is solely the responsibility of the NGO DEJURE Foundation and in no way reflects the views of the Kingdom of the Netherlands.

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