The High Qualification Commission of Judges of Ukraine and the Public Integrity Council. Why doesn't team play work in favor of the institution?

In June 2023, after a four-year (!) break, the new High Qualification Commission of Judges of Ukraine (HQCJ) started working in Ukraine, and this is one of the most important parts of judicial reform. According to the law adopted in 2015, the Public Integrity Council (PIC) became an integral part of the High Qualification Commission of Judges of Ukraine (HQCJ). The topic of this article is not to analyze how expedient it was to liquidate the Supreme Court of Justice, a key institution for the judicial system (we are not liquidating the parliament for passing unsuccessful laws), but it is definitely a topic to record how well the new composition of the High Qualification Commission of Judges of Ukraine (HQCJ) and the Public Integrity Council (PIC) cope with the tasks set. Or does not cope with these tasks.

Because the signals that society and the judicial system received during the operation of the new composition of the High Qualification Commission of Judges of Ukraine (HQCJ) are, to put it mildly, alarming. Starting with the scandal with the allegedly Russian passport of the head of the Commission, Roman Ihnatov, provoked by a letter from the Foreign Intelligence Service (according to the latest information, the Working Group of the Security Intelligence Service, after making inquiries to the special services, did not find final confirmation of this information), and ending with the recent letter of the Deputy Chairman of the Commission, Ruslan Sydorovych, and the Coordinator of the Public Integrity Council (PIC), Veronika Kreidenkova, to the G-7 Ambassadors. This letter undermined the future cooperation of the High Qualification Commission of Judges of Ukraine (HQCJ) with the National Anti-Corruption Bureau of Ukraine (NABU) and the National Agency on Corruption Prevention (NACP). And this cast great doubt on the institutional capacity of the High Qualification Commission of Judges of Ukraine (HQCJ).

Why is this even happening? Who benefits from shaking up the institution in the active phase of judicial reform, qualification evaluation and at the start of several competitions for the positions of judges? Why are Bankova Street and principled "non-manager" Ihnatov involved? What does the Public Integrity Council (PIC) accuse the new composition of the commission of and does it understand that they are in the same position? In the end, will the new composition of the High Qualification Commission of Judges of Ukraine (HQCJ) be able to withstand these blows and fulfill the powers provided by law? 

 

Institutional swing of the High Qualification Commission of Judges of Ukraine (HQCJ)

In November of last year, the representatives of the High Qualification Commission of Judges of Ukraine (HQCJ) continued the unfinished qualification evaluation of 2,000 judges. The competition for 550 positions in appeal courts has also started. In addition, interviews with candidates for the positions of judges of local, commercial and administrative courts have begun. At the same time, by the end of July this year, the Supreme Administrative Court of Ukraine should be established in Ukraine. A competition for the selection of judges of the High Anti-Corruption Court of Ukraine (HACC) has been announced. But there is no clear plan of action, prioritization of steps and understanding of how it should work at the same time, and the efficiency is low. Why is that so?

Regarding the answer to this question, the opinions of the interlocutors of ZN.UA differ. Thus, colleagues unanimously describe the head of the High Qualification Commission of Judges of Ukraine (HQCJ) Roman Ihnatov as "an inflexible and slow manager in making decisions." But then there are nuances. "Honest, but uncommunicative," says one interlocutor. — It is obvious that his actions are influenced by 25 years of work with criminal justice: first as an investigator, then as a prosecutor, and then as a judge. Ihnatov looks directly at some things, without being distracted by important nuances. But it was this blindness and limited horizons that worked in our favor in this case." According to this and other sources within the Supreme Court of Justice, it is impossible to agree with Roman Ihnatov on the judge someone needs. The same sources of ZN.UA in the High Qualification Commission of Judges of Ukraine (HQCJ) claim that when they first (and for the last time) came to the head of the Commission to negotiate with Bankova Street, he refused them in a rude manner. And they added that precisely because of this inability to negotiate, Roman Ihnatov was reminded of the old story with his alleged Russian citizenship. 

However, another opinion arises here, which probably belongs to colleagues who are quite unfriendly, they claim: "exactly because Ihnatov is a bad manager, the High Qualification Commission of Judges of Ukraine (HQCJ) is still not under the control of Bankova Street." Allegedly, the head of the Commission, as an incompetent manager, simply cannot provide the solutions needed by the Office of the President of Ukraine. That is why they are trying to compromise him and remove him from office. And the "Russian passport" is one of the tools for this.

We will remind that the story about whether Roman Ihnatov has a Russian passport or not began at the stage of the formation of the new High Qualification Commission of Judges of Ukraine (HQCJ). In the midst of the competition for the position of a member of the Commission, he was reminded that in the 1990s, immediately after the collapse of the Soviet Union, Ihnatov worked as a prosecutor in Russia. And for those who claimed that he had a Russian passport and citizenship, this became a reason to say that he could not work in the prosecutor's office without a Russian passport. Eventually, this high-profile story ended. And Ihnatov became not only a member of the High Qualification Commission of Judges of Ukraine (HQCJ), but also became its head, preventing the Office of the President of Ukraine from appointing its candidate to this position. Then they called different names, which we will not make public yet.

However, revenge was not delayed. As ZN.UA interlocutors in the Higher Council of Justice of Ukraine explain, the scandalous people's deputy Maksym Buzhanskyi wrote to the law enforcement agencies about Ihnatov's statement, on the basis of which, as the head of the the High Qualification Commission of Judges of Ukraine (HQCJ) himself says, a criminal case under the article "treason" was opened against him. Initially, the members of the Commission wanted to create their own small agency within the qualification body on the issue of Roman Ihnatov's alleged Russian citizenship. But then they agreed that the head of the High Qualification Commission of Judges of Ukraine (HQCJ) should personally make a request to the special services. That's exactly what he did. And in December 2023, a reply from the Foreign Intelligence Service of Ukraine came to the address of the High Qualification Commission of Judges of Ukraine (HQCJ).

In particular, it states that due to the breakdown of diplomatic relations between Ukraine and Russia after the full-scale invasion of the Russians on February 24, 2022, it is impossible to obtain copies of documents from Russian registries. However, the number of the "passport of a citizen of the Russian Federation" was indicated in the letter, which is not included in the lists of invalid documents. And it belongs, as the Foreign Intelligence Service of Ukraine claims, to Roman Mykolayovych Ihnatov. After that, the head of the High Qualification Commission of Judges of Ukraine (HQCJ) called a press conference and talked about the pressure. His deputy, Ruslan Sydorovych, made public statements in which, firstly, he made it clear that the Commission supports its chairman, and secondly, he noted that the intelligence letter will not affect the procedure for evaluating judges and the further work of the High Qualification Commission of Judges of Ukraine (HQCJ). In addition, he noted the creation of a working group within the High Qualification Commission of Judges of Ukraine (HQCJ) that will study the issue. And all this was not very good news for the stability of the institution.

The working group completed its work on January 31, and the report was published on February 12. Before that, this group made requests for information to all special services of Ukraine. 

In the published report, there is no conclusion about whether Ihnatov has Russian citizenship now or in the past. But the working group assessed the established circumstances (documents and legislation) and found no evidence of Roman Ihnatov's "active, conscious actions aimed at acquiring citizenship" of the Russian Federation.

Open Russian official sources of information (websites of the main migration department of the Ministry of Internal Affairs of the Russian Federation and the Federal Tax Service) do not contain information about Ihnatov's possession of a Russian passport and a Russian individual tax number. The working group could not "establish the correctness of the numbering of the passport of the Russian Federation" in relation to the Russian passport number (6140 640912) provided in the letter of the Foreign Intelligence Service, as it is claimed, which coincides with the number of the USSR passport that Ihnatov had (614064 dated 09.12.1986).

The working group, assessing whether the work at the Petrozavodsk Prosecutor's Office can indicate that Ihnatov has acquired Russian citizenship, noted in the report that Article 37 of the Law of the Russian Federation on the Prosecutor's Office "sets a requirement for the presence of Russian citizenship for persons who applied for such a position." In addition, this working group noted that "the fact of being appointed to the position of investigator of a particular prosecutor's office in 1995-1996 cannot in itself testify to belonging to the citizenship of the relevant state."

Do such conclusions of the working group remove the question of Ihnatov as the head of a key institution of the judicial system? This is not a fact. At any moment, someone will bring this topic up again at the right opportunity. Moreover, the issue is not only in Ihnatov, but in general in the ability of the state and special services to offer an adequate solution to such conflicts. After all, many issues with Russian citizenship arise both in the judicial system and within the special services themselves. 

It is significant that ZN.UA's sources in the the High Qualification Commission of Judges of Ukraine (HQCJ) say that two members of the Commission, namely: Ruslan Melnyk, who worked at the National Anti-Corruption Bureau of Ukraine (NABU) until 2023, and Oleh Koliush judge of the the High Qualification Commission of Judges of Ukraine (HQCJ) were already ready to become the new heads instead of Ihnatov. They openly demanded the resignation of Ihnatov (?). Melnyk needed this resignation because he is ambitious, and Koliush because he has already shown that he is supposedly ready to listen to the commands of the leadership, because during the vote on February 12, 2024 regarding judge Pavlo Vovk and his participation in the competition for the position of judge of the Supreme Court of Ukraine, he voted in favor of Vovk. In essence, this decision of the High Qualification Commission of Judges of Ukraine (HQCJ) did not affect anything, but simply stated the fact that Vovk will not be able to administer justice in the Supreme Court of Ukraine, because he is not a judge there and did not appear for the competition for the selection of judges to this court. But this decision of the High Qualification Commission of Judges of Ukraine (HQCJ)  may be the penultimate one on the way to the removal of the status of a judge involved in the criminal case of the National Anti-Corruption Bureau of Ukraine (NABU).

 

The mental choice of the Public Integrity Council (PIC)

The Public Integrity Council (PIC) of 2016 was the so-called "the result of Maidan". The Public Integrity Council (PIC) is not just an advisory body according to Article 87 of the Law "On the Judiciary and the Status of Judges". It was supposed to become a symbol of the fact that it should not be as it was before. And the process started.

The public council is elected every two years. It can include journalists, lawyers, human rights defenders and public activists from various fields, who, however, must understand the essence of the work that they will be doing in the the Public Integrity Council (PIC). The duties of the Council are: to collect and analyze information about judges and candidates for the position of judge, to inform the High Qualification Commission of Judges of Ukraine (HQCJ)  that one of the judges does not meet the criteria of integrity, to participate in meetings together with members of the Commission during interviews with judges. Also, if the conclusion of the Public Integrity Council (PIC) regarding the judge is negative, the members of the High Qualification Commission of Judges of Ukraine (HQCJ) must take this into account and procedurally agree or not. If the Commission rejects the conclusion of the Public Integrity Council (PIC), then such a decision must be supported by 11 of its members. However, according to the current law: "...by two-thirds of the votes of the appointed members of the High Qualification Commission of Judges of Ukraine (HQCJ), but not less than nine votes."

There was no such practice of cleaning the courts anywhere in the world. By blindly finding the mechanisms and procedures that were launched at the beginning, today they have been brought to automatism. But, as the members of the High Qualification Commission of Judges of Ukraine (HQCJ) say, although common evaluation indicators exist, they are not applied equally by the Public Integrity Council (PIC) and the members of the commission.

Recently, the non-governmental organization "Dejure Foundation", which advocates the transparent principles of judicial reform in Ukraine, but, it should be noted, is not a body that is considered to be a subsidiary of either the High Qualification Commission of Judges of Ukraine (HQCJ)  or the Public Integrity Council (PIC), published the statistics of qualification evaluation for three months. This refers to the results of 99 judges (for three months of work), of which the Commission considered 36 candidacies with a negative conclusion of the Public Integrity Council and overcame these conclusions regarding 17 of them, i.e. did not take them into account, and listened to 15 of these conclusions. The commission also dismissed the judges. And the "Dejure Foundation" concludes: "...despite the criteria jointly agreed with the Public Integrity Council (PIC), the understanding of what constitutes unethical behavior for a judge is often different between the Commission and representatives of the public sector. In particular, the High Qualification Commission of Judges of Ukraine (HQCJ)  ignores the acquittal and release from responsibility of drunk drivers by judges."

We asked the members of the High Qualification Commission of Judges of Ukraine (HQCJ) what the matter was, and on the condition of anonymity received the answer: " Each collegium makes decisions independently. But if there is a court decision, should we say that it is illegal? We are a state body, especially one that works with court issues, should we simply say that the judge made an illegal decision? The same about Maidan judges. What should we say if the court decision is not canceled?". That is, the members of the Commission refer to the impossibility of questioning the court's decision and the need to act within the framework of the law, since they are responsible for the decisions made. The members of the Public Integrity Council (PIC) do not have such restrictions.

At the same time, the  High Qualification Commission of Judges of Ukraine (HQCJ), for its part, also does not always justify its disagreement with the conclusions of the Public Integrity Council (PIC). This is, in particular, the issue of conducting interviews by judges, who, as indicated by the Public Integrity Council (PIC), delayed the consideration of cases involving these drunken drivers. And therefore, the members of the Commission should not forget to explain this to the public, which is with them during meetings in the same room and is ready to listen.

​None of the members of the Public Integrity Council (PIC) receives a salary for proofreading decisions, their votes and participating in interviews. However, as indicated by several members of the Public Integrity Council (PIC) with whom we spoke, international organizations finance analytical work, namely the collection of information and its registration in a dossier. And the public organization "Dejure Foundation" pays fees for the work performed. Veronika Kreidenkova, co-coordinator of the State Development Committee, who works part-time as a project manager of the "Dejure Foundation", told ZN.UA in a comment that Dejure "administers institutional work."

And here the question of the institutional independence of the Public Integrity Council (PIC) arises. We are not talking about direct influence, they say, the "Dejure Foundation" forces members of the Public Integrity Council (PIC) to make negative conclusions about individual judges. The question is how independently the members of the Council make decisions, if the "Dejure Foundation", for example, has a formed opinion about one of the judges. The "Dejure Foundation" has repeatedly shared on its social networks conclusions about the candidates to be interviewed, insisting in advance that they are dishonest. The members of the Commission, with whom ZN.UA spoke during the preparation of this material, expressed the hope that the maturity and subjectivity of the members of the Public Integrity Council (PIC) allow them to make decisions independently, without outside influence.

"Although the activity of the Public Integrity Council (PIC) is inseparable from the activity of the High Qualification Commission of Judges of Ukraine (HQCJ), institutionally it is a completely independent body, influence on which both the High Qualification Commission of Judges of Ukraine (HQCJ) and other state authorities are normatively impossible. At the same time, everyone should understand that assistance should not be perceived as help. The Public Integrity Council (PIC) was and will remain a body that raises acute issues and highlights significant shortcomings. If it were otherwise, the existence of this body would not make any sense," says Ruslan Melnyk, a member of the High Qualification Commission of Judges of Ukraine (HQCJ).

In addition, before the interview with one of the Kharkiv judges, the board member of the "Dejure Foundation", Mykhailo Zhernakov, wrote on his page in the social network that the judge, who was going to the interview, allegedly tried to agree on her appointment to the position. Zhernakov did not announce the names of the members of the Commission, with whom they agreed, about the statements to law enforcement agencies, and he also did not mention the alleged bribery of the members of the High Qualification Commission of Judges of Ukraine (HQCJ). This question arose at the meeting, and no one understood what its essence was and who should be contacted for clarification. Members of the Commission, with whom ZN.UA spoke about this case, perceived it as pressure on them. In the end, the judge did not pass the interview. And if you shout for a long time that the wolves have come, you know what happens next. However, if there is no responsibility for such statements that would affect the reputation, then this can be avoided.

"The Public Integrity Council (PIC) is a collegial body. We are 20 members. The "Dejure Foundation" is a public organization that has delegated individual members to the Public Integrity Council (PIC). It's not enough to have a real impact. We are influenced by the practice of the previous composition of the Public Integrity Council (PIC), because they have already worked out the criteria and evaluation methodology, information about the judges who began to undergo qualification evaluation under the previous composition. We use this heritage, although we are slightly different and have differences in approaches. Perhaps this "inheritance" is perceived as the influence of representatives of the "Dejure Foundation", says Olha Veretelnyk, a member of the Public Integrity Council (PIC).

 

The G7 command letter that shouldn't have been

Describing the probable risks and existing problems in the communication of the members of the High Qualification Commission of Judges of Ukraine (HQCJ) and the Public Integrity Council (PIC), one cannot fail to mention their unequivocal fruitful cooperation. Last month, the Deputy Chairman of the Commission, Ruslan Sydorovych, and the Chairman of the Council, Veronika Kreidenkova, wrote a joint letter to the G7 ambassadors, complaining that the National Anti-Corruption Bureau of Ukraine (NABU) and the National Agency on Corruption Prevention (NACP) stopped providing them with data on judges.

However, in the Law "On the Judiciary and the Status of Judges", two articles immediately guarantee both the High Qualification Commission of Judges of Ukraine (HQCJ) and the Regional Development Authority access to the registers used by the National Agency on Corruption Prevention (NACP) and the National Anti-Corruption Bureau of Ukraine (NABU). But none of this, according to the members of the High Qualification Commission of Judges of Ukraine (HQCJ), works in practice, because the members of the Commission do not have a protection system and permits for working with registers. The the High Qualification Commission of Judges of Ukraine (HQCJ) simply cannot get access to the Tax Service register to compare the judge's income and the property he owns. The Public Integrity Council (PIC) does not have such an opportunity either.

Olha Veretelnyk, a member of the Public Integrity Council (PIC), explains that in the past the National Anti-Corruption Bureau of Ukraine (NABU) passed on information to the previous members of the Council, but now they lack both people and resources for this. "The National Agency on Corruption Prevention (NACP) stopped providing information at the end of last year because the volume of work in 2024 does not allow them to do so. The value of the information of the National Agency on Corruption Prevention (NACP) is that it is sufficiently complete and structured compared to other sources. This significantly speeds up and improves our work and the work of members of the High Qualification Commission of Judges of Ukraine (HQCJ). That is why we appealed to the G7 with a request to help ensure that the National Agency on Corruption Prevention (NACP) has the resources to provide this information. After all, it is important. Because qualification assessment and competitions for the positions of judges are not the only processes that require a deep analysis of candidates. And all competition commissions need to get information from somewhere, and it is desirable that it be as complete and systematized as possible," she noted.

So here are two questions. The first: why did the High Qualification Commission of Judges of Ukraine (HQCJ) and the Public Integrity Council (PIC), having a direct provision in the law on access to registers, not resolve this issue at the government level? Second: why, having a memorandum on cooperation with the National Anti-Corruption Bureau of Ukraine (NABU) (concluded by the previous composition of the High Qualification Commission of Judges of Ukraine (HQCJ) back in 2016), did they not resolve the issue at the horizontal level of cooperation? Using the online navigation system of Google maps, you can see that the distance from the building of the High Qualification Commission of Judges of Ukraine (HQCJ) to the National Anti-Corruption Bureau of Ukraine (NABU) office is 1.2 km, which can be covered by car in about four minutes. It seems that this is a much shorter way to solve the issue than to turn to our allies-ambassadors with an open letter and ask them to intervene in order for the National Anti-Corruption Bureau of Ukraine (NABU) to hand over the documents. Moreover, in this way, we can undermine both our authority and the authority of anti-corruption bodies, which, according to the law, are not obligated to anything by the High Qualification Commission of Judges of Ukraine (HQCJ).

After the publicized letter to the G7 ambassadors, Ruslan Sydorovych nevertheless stated that the High Qualification Commission of Judges of Ukraine (HQCJ) plans to create its own analytical unit that will deal with information from the necessary registers, and specified clear deadlines – until the end of 2024. However, he did not specify how the members of the Commission will manage for a year (!) without the necessary information. It just blocks the activity of the High Qualification Commission of Judges of Ukraine (HQCJ), which has just started to work, right?

 

Instead of conclusions

Firstly, despite all the problems listed above and the permanent desire of any government to control the High Qualification Commission of Judges of Ukraine (HQCJ), its new composition has not given reason to claim that this institution is also under the influence of Bankova Street. This is a key factor for the continuation of judicial reform. Why this happened – because Ihnatov is a bad manager and could not ensure the process or because he is guided by his principles – will become clear in the near future.

Secondly, after the publication of the report of the working group, which, in fact, supported Ihnatov, the High Qualification Commission of Judges of Ukraine (HQCJ) has a chance to keep the institution and enter a normal rhythm of work. With priorities, deadlines, planning and such efficiency that corresponds to the situation. This is very important for the continuation of the reform.

Thirdly, the Public Council of Integrity (PCI) should avoid its mental choice and take an institutional step, realizing that it is a single whole with the High Qualification Commission of Judges of Ukraine (HQCJ). And to criticize does not mean to destroy in order to be left without a functioning institution again. All this is a conversation about trust – the ability to build trust within the institution and, as a result, increase the trust in the High Qualification Commission of Judges of Ukraine (HQCJ) and the public. By the way, the transparency of the financing of the work of the members of the Public Council of Integrity (PCI) is also about trust.

Fourthly, public organizations, whose representatives are part of state procedures, should move from the field of hype creativity and publicity to the field of the ability to institutionally support their ideas and activities. Such organizations need to dig deep and not drift on the crest of a temporary wave; prepare realistic draft laws in a timely manner, which will become the platform on which the new judicial system will be built. It is important to critically analyze the results of the work of your representatives and the consequences of their not only successful, but also unsuccessful steps, because trust in the public organizations themselves depends on this.