In September 2024, the Service of Disciplinary Inspectors (SDI) is to finally start working in Ukraine, reviewing complaints against judges, of which the High Council of Justice (HCJ) has already accumulated about 14,000. The disciplinary inspectors will speed up the HCJ’s work, and thus the cleansing of the judiciary, since the Council itself is apparently unable to do this or is not very willing to do it quickly and efficiently.
Why is the HCJ slowing down the consideration of high-profile disciplinary complaints against DACK judges and its head Pavlo Vovk? Who is doing this? Do HCJ members bear responsibility for their inaction? Is it necessary to change the legislation on the work of HCJ members and who should initiate it? Who makes mistakes in the competition for the post of head of the State Judicial Administration: The HCJ, international partners or the public? And why has the new HCJ failed to meet the expectations of the public so far?
These direct questions are answered by Hryhorii Usyk, Chairman of the High Council of Justice.
On leadership, relations with the authorities and the responsibility of everyone
— Mr. Hryhorii, from the very beginning of the work of this composition of the High Council of Justice, there were and still are high expectations and hopes pinned to the body. A year ago, in an interview with ZN.UA, you stated that the HCJ had leadership ambitions in judicial reform. In your opinion, have you succeed in attaining them?
— One of the key tasks of the High Council of Justice is to restore trust in the judiciary, but so far, in my opinion, the HCJ has not become a leader of judicial reform in the sense that society and our international partners demand. What do society and international partners expect from us? The first thing we hear is the cleansing of the judiciary. At the same time, cleansing the judiciary does not mean that all judges should be dismissed, only those who have committed significant disciplinary offenses and corruption.
We have already dismissed many judges, including collaborator judges, former Supreme Court Chief Justice Vsevolod Kniaziev (following a disciplinary complaint about the undervalued apartment he was renting), former judge of Makariv District Court in Kyiv Oblast Oleksii Tandyr (in a fatal car accident case in which he was accused), the head of the Poltava Court of Appeal, a judge of the Bilhorod-Dnistrovskyi District Court of Odesa Oblast (who deprived mothers of parental rights so that their fathers could travel abroad). At the same time, the media raise many questions about our failure to consider disciplinary complaints against judges of the District Administrative Court of Kyiv and judges of the Kyiv Court of Appeal who are suspected of committing a corruption-related criminal offense.
The demand for cleansing the judiciary of dishonest judges did not arise today; objectively speaking, this situation was complicated by the fact that the High Qualification Commission of Judges of Ukraine (HQCJ) did not work for four years. From February 2022 to January 2023, the HCJ did not have the mandate. And since August 2021, the HCJ has not exercised its disciplinary function at all, resulting in the accumulation of more than 14,000 disciplinary complaints against judges as of December 2023.
However, one of the main functions of the High Council of Justice — the formation of an integrity-based, highly professional judiciary — should be carried out not only by dismissing dishonest judges in disciplinary proceedings, but also by conducting a new selection of honest and professionally trained judges.
— That is, the fact that you did not start considering disciplinary complaints against judges of the DACK and Kyiv Court of Appeal is solely the fault of the HQCJ, which was not working? But it has been working for a year now.
— I don’t want this to sound like an excuse, but in addition to its disciplinary function, the High Council of Justice is also responsible for the formation of the judiciary, which currently takes a lot of time to study and consider recommendations of the High Qualification Commission of Judges of Ukraine regarding the submission to the President of Ukraine of candidates for the positions of judges. The initial consideration of a complaint at a meeting of the disciplinary chambers is also time-consuming, as participants usually do not always appear on the first occasion, which is a reason for postponing the consideration of complaints. In addition, we still have an incomplete composition of the HCJ, which sometimes leads to postponement of consideration of appeals against decisions of disciplinary chambers, since members of these chambers who participated in the adoption of the appealed decision cannot participate in its review at the HCJ plenary session. Therefore, in the presence of a satisfied challenge or self-recusal and the absence of one of the HCJ members for valid reasons, we do not have a quorum to consider such an issue, which is the basis for excluding it from the agenda.
What do ordinary citizens expect most from the judiciary? Obviously, they expect protection of their rights and fair and reasonable court decisions within a reasonable timeframe. What do we have in reality? We have a catastrophic shortage of judges and staff in the courts of first instance and appellate courts. The courts of first instance are the place where people first encounter the judiciary, and they will evaluate the work of the judiciary by how well they are provided with judicial services, how timely and fairly their case is considered.
Instead, we currently have a situation where some courts have no judges at all, the workload per judge in some regions is more than 3,000 cases, and local court staff receive a salary of UAH 10,000–12,000. We regularly analyze these issues and try to solve the problem of inadequate salaries of court staff through a separate resolution of the Cabinet of Ministers of Ukraine. Add to this the launch of the HCJ’s disciplinary function, the formation of a service of disciplinary inspectors, the election of the head of the State Judicial Administration (SJA), the resumption of the work of courts in the de-occupied territories, and the resolution of a host of other issues that arise in the course of the HCJ’s activities.
— We will come back to disciplinary complaints because this is where the red button is located to send a signal to the entire system: we are really proceeding with the reform and getting rid of those who have disgraced the court as an institution. This is leadership. Or is it not? What do you personally mean when you talk about the HCJ’s leadership?
— When I talk about leadership, I mean, first of all, responsibility: to society as a whole, to judges and court staff. It is the ability to solve problematic issues facing the judiciary, to set an example in our work, to instill confidence in society and the judicial community that we will overcome the problems.
What does it mean to be a leader? Is it when you say what a radicalized part of society wants to hear? Or is it when you make balanced decisions, perhaps unpopular but important, that directly affect people's lives, and you take responsibility for them? It is not always possible to find understanding or support. The main thing is not to stop, not to despair, we have to change the judicial system, make it clear and fair.
It is important that this has at least some support in society, and not just criticism, which is often not entirely fair and objective. It won't be as easy as we would like it to be, and there are a lot of problems, not only in the judiciary but also in other parts of the justice system, such as the prosecutor's office, the bar, and law enforcement agencies. There were also mistakes in the strategy of judicial reform, and therefore these problems need to be addressed comprehensively, starting with the reform of higher education in law schools.
— Do you feel personally responsible for the fact that the HCJ does not demonstrate ambition in judicial reform?
— Of course. If such hopes and expectations are placed on us, and we do not live up to them, that’s hardly anyone’s pleasure. My personal responsibility as chairman is to organize the work of the High Council of Justice. If the Council does not justify public trust, this is my fault as well. However, submitting the same issue of consideration of a disciplinary complaint or a complaint against a decision of the Disciplinary Chamber to the Disciplinary Chamber or to the plenary session of the High Council of Justice is the sole responsibility of a HCJ member, who must prepare an opinion and a draft decision and familiarize HCJ members with the case file. In resolving these issues, the HCJ Chairman or the Secretary of the Disciplinary Chamber are deprived of any influence on the HCJ member. And this is right, since they are independent and should be guided only by their sense of justice and the law.
— In May, the Verkhovna Rada could have passed amendments to the law “On the Judiciary and Status of Judges” that would have allowed the president to return a motion to the HCJ to appoint judges if the Security Service of Ukraine (SSU) or the National Anti-Corruption Bureau of Ukraine (NABU) have information about actions that could threaten Ukraine’s national security or harm national interests. What signal did you get from this draft law?
— This draft law, in my opinion, addressed the situation when, after the HCJ has submitted a petition to the President of Ukraine and before he issues a decree appointing a judge, the SSU or NABU receive, for example, information about the candidate’s (judge’s) collaboration activities or the fact that he or she has Russian citizenship, as was found in the case of Judge Bohdan Lviv after the competition to the Supreme Court. All the materials were checked during the competition procedure, but then his Russian passport was found. These are exceptional cases, and therefore I did not see any special precautions in this draft law, since the President of Ukraine was only authorized to return the materials on the judicial candidate to the HCJ for additional verification on these issues.
— Why, if the HCJ is doing this by appealing to all the special services? Are you surrendering leadership so easily and abdicating responsibility for your work?
— If it is returned for additional verification with the available information, this notification should include an evidentiary basis. The HCJ provided an advisory opinion to this draft law, where it expressed a number of comments and suggestions. Other bodies that were supposed to be involved in the process also submitted their proposals. As a result, the Verkhovna Rada did not adopt the draft law.
On disciplinary complaints, sabotage and imperfect law
— You yourself mentioned the disciplinary cases of Tandyr and Kniaziev, in which the HCJ finally reached a decision. But why did society wait so long for judgements on these disciplinary complaints? Before each meeting of the High Council of Justice, civil society organizations wrote and reminded us of these complaints. You have probably seen the publications yourself.
— As I have already mentioned, this is the area of responsibility of each HCJ member who is in charge of such cases. It is the member of the HCJ who prepares an opinion on each disciplinary complaint that is submitted to the chamber and raises the issue of its inclusion in the agenda of the meeting.
— That is, in each of these cases, each member of the HCJ arbitrarily did not want to submit the issue for consideration?
— Let’s avoid the word “arbitrarily.” But this is the personal responsibility of the HCJ member, who independently decides, among other things, on the priority of consideration of complaints.
— Then let’s name the members of the HCJ who are responsible for the most high-profile disciplinary cases. Who exactly is slowing down the proceedings? Civil society organizations constantly draw attention to HCJ members Burlakov and Salikhov. Do you have anything to say to them publicly?
— It is unethical for me to assess the actions of these HCJ members. But it is these members of the HCJ who have complaints against Vsevolod Kniaziev and judges of the Kyiv Court of Appeal.
— Thank you. Judge Pavlo Vovk filed lawsuits against the HCJ regarding the priority of consideration of his complaints. What is the fate of these complaints?
— These complaints are an attempt to show that the HCJ operates in an extra-legal manner in order to question further decisions of the Council. These complaints do not delay or stop the consideration of disciplinary complaints against DACK judges.
— So what should we do with the priority clause if it does not work when there is outright sabotage by HCJ members? Should the law be changed to make this provision work? Should the new law include certain articles of the Criminal Code, according to which proceedings opened against judges by pre-trial investigation bodies will be considered a priority for consideration at HCJ meetings?
— This provision does not work because there is no mechanism for its implementation, nor is there responsibility for non-compliance. I think that some changes to the law regarding the priority of consideration of these particular complaints may be appropriate.
— The picture is as follows: priority complaints have not been considered for years, the priority clause does not work, and HCJ members have no responsibility for this. So the complaint can remain pending endlessly? Hardly a good signal for the system.
— The current law has no answer to this. As for improving the law, this is a question for the legislator. Anyone, including public organizations, can initiate it for discussion.
— So this issue should be dealt with by public organizations?
- When there is a public demand for it, they initiate relevant issues. For example, competition procedures to the HCJ, HQCJ, High Anti-Corruption Court (HACC), competition commissions to the National Anti-Corruption Bureau and the National Agency for Corruption Prevention.
However, I would like to note that, in addition to the complaints you mentioned against judges of the Kyiv Court of Appeal and DACK judges (and there is a very large volume of materials), we are about five times less efficient in reviewing disciplinary complaints. As of November 1, 2023, we resumed consideration of disciplinary complaints, and we have already developed a practice and an appropriate pace of their consideration.
— The key is the most high-profile cases. Why doesn’t the HCJ Chairman speak about this publicly? Why don’t you initiate discussions in the relevant committee and in the judicial community on the necessary changes to the law to stimulate your colleagues?
— At our meetings, we constantly pay attention to the issue of prioritizing disciplinary complaints. I do not believe that the situation is so critical that it is necessary to talk about it publicly. Each HCJ member is aware of his or her responsibility to the public and to the body that appointed or elected him or her as a HCJ member.
— What exactly needs to be changed in the legislation?
— I’m not ready to say what changes need to be made to our specialized laws to make the priority of reviewing disciplinary complaints about corruption-related criminal offenses mandatory. I can only say about the timeframe for consideration of complaints, for example, no later than three months from the date of their receipt by the HCJ. I hope that when the Service of Disciplinary Inspectors is formed, this problem will become irrelevant. According to our optimistic forecasts, the SDI is to be formed in September this year.
— You have already said that the Service of Disciplinary Inspectors will be established in September 2024. Do you think you will be able to do it in time? Because everything that is happening now around this service is still alarming.
— This will depend on the procedure for finalizing the competition. My only concern is that there are only two candidates left for the position of the head of the service. Before the first stage of selection, there were more than 400 candidates for the positions of disciplinary inspector, deputy head of the SDI and head of the SDI, and after it, there were 69 candidates left. In my opinion, the commission set the passing score for the cognitive test too high, which resulted in a significant number of candidates dropping out of the competition. But I hope that the competition will end in September this year.
— Regarding the premises for disciplinary inspectors. As it turned out in early June, “the two-story building at 15A Tarasivska Street, which in 2023 was allocated for the location of the Service of Disciplinary Inspectors and the Service’s support department, is in disrepair and needs major reconstruction, including repair of the building’s foundation. According to the HCJ’s preliminary calculations, the building needs at least UAH 36 million for repairs, which the Council of Justice does not have at its disposal at the moment.” Why did this issue become apparent only three months before the inspectors started their work? What do you plan to do about it? How are the State Property Fund (SPFU) and the Asset Recovery and Managemet Agency (ARMA) helping you with this?
— The Service of Disciplinary Inspectors is a functionally independent unit within the HCJ structure that needs its own premises. We found this building at 15A Tarasivska Street, which is state-owned. It was owned by the Judicial Protection Service, which leased it to us. But this building really needs major repairs, as the rocket that hit near Shevchenko University caused cracks in its walls. We inspected it together with representatives of the USAID Justice for All Program, who agreed to finance the overhaul. Unfortunately, the issue of overhauling this building has not been resolved yet.
Regarding the State Property Fund. Since 2016, the High Council of Justice has repeatedly appealed to the Cabinet of Ministers of Ukraine to allocate additional premises, since the current HCJ premises do not meet sanitary standards in terms of “providing the necessary space per employee.” Each time, the Cabinet of Ministers addressed our appeal to the SPFU, which offered us facilities that were either completely unsuitable for the work of the SDI or very far from the main HCJ premises.
Therefore, as a last resort, the Service of Disciplinary Inspectors can be temporarily located in the premises of the Shevchenkivskyi District Court of Kyiv. This is far from the best option, but it will be a separate floor and a separate system of cards for entry.
— Going back to your statement about only two candidates for the position of the head of the Service of Disciplinary Inspectors. Should the threshold for testing candidates for various positions in the judicial self-government be lowered? This is not a new question, both in relation to disciplinary inspectors and, for example, in general, to the selection of judges to the HQCJ now, but there is no consolidated position among different speakers. However, the public, contrary to such ideas, does not weaken its interest, selection criteria or requirements for candidates.
— In my opinion, the Commission has set too high a threshold for passing certain stages of the competition, probably because the powers of disciplinary inspectors in the procedure of preliminary review of disciplinary complaints against judges are quite significant and responsible. Therefore, such positions should be held by highly professional and honest winners of the competition.
According to the current legislation, the HCJ only announces the start of the competition; the entire competition procedure is prescribed by law and is conducted by a competition commission approved by the HCJ.
— In March 2025, the terms of office of the HCJ members Salikhov and Plakhtiy expire. Ten judges must work in the HCJ for it to be legally valid. Will the Council of Judges have time to meet? Have you discussed this issue with the Head of the Council of Judges?
— We already know when the congress of judges will be held to elect members of the HCJ. We have announced the acceptance of documents from candidates.
— That is, the situation when the HCJ will one day not have enough judges will not happen?
— I am sure that they will not. The chairman of the Council of Judges was also concerned about this, and we are like-minded in this, and we want the congress of judges to elect new members of the High Council of Justice in advance.
On the competition for the position of the head of the SJA, misunderstandings with internationals and trust
— Civil society organizations analyzed the candidates for the position of the head of the State Judicial Administration (SJA) and only one out of thirteen was recognized as having integrity. When should we expect a reset of the competition for the head of the SJA, and should we expect it at all?
— There are a lot of insinuations around this issue that are absolutely not based on the provisions of the law. I don’t know how much information civil society organizations have to draw such a premature conclusion.
The situation is as follows: since August last year, we have actually had no head of the SJA. The acting head is not the level of leader who will make significant changes in the agency. And we need both structural and personnel changes. In January, we announced the selection procedure for the vacant position of the head of the SJA. Under martial law, there are no competitions for civil servant positions, so the HCJ could have announced the acceptance of documents from candidates for the vacant position of the SJA head and appointed the SJA head at a plenary session in a day or two.
What are we doing? To demonstrate the openness and transparency of this selection process, the HCJ announced the acceptance of documents from candidates for the vacant position of the Head of the State Judicial Administration and created a working group consisting of five HCJ members. The working group includes representatives of international projects who have virtually the same rights as HCJ members (i.e., they have the right to receive any documents on candidates, provide the working group with documents they have received from various sources, ask questions to candidates during the interview, participate in the discussion of their candidacies, make their own proposals, provide expert assistance to members of the working group, and participate in voting when determining the rating of candidates with the right to an advisory vote). Interviews with candidates should be broadcast in real time on the HCJ website. The final decision on the appointment of candidates for the position of the SJA head should have been made in a plenary session by all HCJ members.
So far, our international partners have refused to participate in the working group, as they believe that they should have a casting vote in determining the ranking of candidates.
— And you haven’t come to a consensus?
— We haven’t yet. Discussions on this issue are currently underway, including within the HCJ. I believe that a balanced decision will be made based on the law.
— Perhaps the problem is that the public also does not feel leadership in the HCJ and has the same questions I asked you.
— Perhaps, but all members of the HCJ were selected under the new procedure through the Ethics Council, which includes three reputable international experts, and therefore are trustworthy and we should be trusted. Moreover, the HCJ appoints members of the High Qualification Commission of Judges of Ukraine and has a decisive role in the appointment of judges.