HQCJ:
Accomplishments and Problems

The joint indicators used by the HQCJ and the PIC are the first step to understanding what specific actions are indicative of a lack of integrity.Synchronized activity is still a long way off, but there is already progress in this direction.

There are 18 indicators so far, but the list will be expanded based on real practice during the qualification assessment. The HQCJ and the PIC agreed on regular meetings to continue working on improvement of the indicators; and several have already been held.

The Commission and the Council also agreed to adopt a standard of reasonable doubt when proving a judge's non-compliance with the criteria of professional ethics and integrity. The presence of reasonable doubt about a judge’s integrity based on at least one indicator in the presence of clear and convincing evidence is a sufficient reason for dismissal.

Since the completion of the qualification assessment is among the key  recommendations of the European Commission, a joint decision by the PIC and the HQCJ isa powerful message that we are ready to respond to the demand of our international partners and society to cleanse the judicial corps.

The previous composition of the HQCJ used the “conveyor belt” approach to interview judges, sometimes conducting 500 interviews a month. One of the panels set a low score of 9 interviews in 1.5 hours, including one that lasted 6 minutes. There can be no question about the quality of such interviews.

However, the new composition of the Commission approached the situation differently. At the first meeting with the PIC, the HQCJ discussed a realistic work plan, taking into account both its own capacity for detailed verification of judges, and the PIC’s capacity.

In six months of its work, the Commission held interviews with over 100 judges and already recommended 22 for dismissal; that is about 37% of unscrupulous judges for who qualification assessment has been completed. It should be noted that from January to May 2024, the HQCJ held 434 interviews with candidates for judge vacancies in local courts, which significantly affected the speed of the qualification assessment.

The HQCJ usually informs the PIC about dates of interviews with specific judges, providing enough time for analysis.

Unfortunately, during a year of its work, the HQCJ has not managed to set up a system for collecting information about judges from state registers either for itself, or for the PIC. We hope for quality changes in this process before the competitive recruitment for appellate court is set in motion.

In the first months of interviews, the Commission’s activity seems effective both in terms of time allocated for one interview and in terms of general organization of the interview schedule. However, delays in organizing the collection of information from state registers about judges complicate reaching the optimal pace of qualification assessment.

After the Head of theHQCJ amended clause 22 of the List of Official Information, the Commission published all recommendations for dismissal even before the relevant decision of the HCJ. Previously, such decisions constituted information for official use only (classified) and were not published on the HQCJ website.

A preliminary analysis of the published decisions shows that most of them are justified. An example of a justified decision based on the qualification assessment is the recommendation to dismiss judge Iryna Yedamenko by the panel of HQCJ members Sabodash (reporting), Pasichnyk, and Chumak. The decision has a logical structure, clearly reflects the score that the judge received under every assessment criterion (by the way, such a table would be very convenient in decisions prepared by other reporting members); it includes the summary of the opinion by the PIC and provides clear justification why the judge received zero points for integrity. The Commission also cited information provided by Automaidan and used it during the interview.

High-quality HQCJ recommendations for dismissal will mitigate the risk of situations when the HCJ or the court could recognize such decisions unsubstantiated or illegitimate.

Publication of recommendations for dismissal of judges before they are approved by the HCJ has made the qualification assessment process more open.
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Despite the positive tendencies with substantiation of decisions, there has been a practice in HQCJ panels where they reach the necessary minimum of points using the criteria of professional ethics and integrity, which we will share in more detail further.

Based on the qualification assessment, the previous composition of the HQCJ filed 75 motions on dismissal of judges to the HCJ. Out of 1,584 judges who went through the interview stage during the qualification assessment, this constituted 4.73%.

In the first six months of its work, the new composition of the HQCJ completed the qualification assessment of 105 judges, providing recommendations for dismissal of 21 judges, that is one in five. The HQCJ agreed with opinions of the PIC on judges’ non-compliance with the criteria of integrity and professional ethics in 35.6% of cases.

Under the Constitution of Ukraine, only a judge of high integrity can be appointed. If there is reasonable doubt regarding this, such a judge should not end up in the judiciary. Therefore, the Commission is now halfway to fulfilling therequirements of the law and public demand.

The HQCJ is moving in the right direction, as illustrated by the fact that it:

applies a generally similar approach to interview format, regardless of the panel or the judge;

usually checks information provided by judges during interviews and takes actions to obtain additional information;

is attentive to possible conflict of interest of HQCJ members with judges undergoing interviews;

cooperates with the PIC;

conducts qualification assessment openly, and if any part of the meeting is behind closed doors, it is usually substantiated;

publishes recommendations for dismissal of a judge before the final decision of the HCJ;

recognizes the vast majority of “Maidan judges” to be unfit for office;

has approved the Procedure for Formation and Maintenance of a Profile of a Judicial Candidate in the Electronic Form.

We hope that the Commission will maintain positive dynamics and fix the shortcomings, which will be discussed in more detail below.
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‍(!) We should note that the listed positive steps regarding the preparation and the interviews themselves pertain specifically to the qualification assessment of judges. Unfortunately, the quality of the Commission’s work to recruit judges to local courts remains low. ‍

Under the law, to perform their duties, the members of the Public Integrity Council have the right to full access to the materials of a judge’s (candidate’s) profile.

The Commission developed and approved the respective Procedure, taking into account individual suggestions and practical aspects of the PIC’s work.
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In particular, PIC members have the right of full access to the materials of judicial profiles on written request and with obligation to refrain from sharing personal data from the materials of a judicial profile, except for cases directly connected with the powers of a PIC member.

Full access to the information of the pre-trial investigation is provided only with the written permission of the investigator or prosecutor and to the extent that they consider it possible.

Despite the legislative requirements regarding non-disclosure of personal data by individuals and legal entities, and relevant obligations of PIC members, Liudmyla Volkova voted against approving the Procedure. In a dissenting opinion, this HQCJ member stated that the PIC Rules of Procedure did not contain a list of the necessary measures aimed at preventing non-disclosure of information with limited access, including personal data. It should be noted that the HQCJ Rules of Procedure also do not contain the relevant measures, and nobody expressed dissenting opinions while approving amendments to this document.

Approving the Procedure of Access to the Profile of a Judge / Candidate for PIC Members is an important step to ensure efficient qualification assessment. We will monitor whether the actual access of PIC members to the profiles corresponds to the declared one.

The Commission tends to turn a blind eye to the lack of convincing information about the sources of property belonging to the judge, their family members or close persons (para. 1, 2 of the Joint  Indicators).  For instance, according to the PIC’s opinion, judge Pavlo Kovalenko’s mother and mother-in-law, who did not have sufficient income, built houses, purchased apartments and high-end cars, which were later used by the judge and his wife. Despite the relatives’ “generosity,” they vehemently refused to tell the judge the value of such items so that he could declare them. Judge Kovalenko was unable to explain how his retired relatives were able to purchase property worth millions, but the Commission found the judge to be fit for office. HQCJ members Bohonis, Hatseliuk, Pasichnyk, and Chumak voted against this decision.

Judge Serhii Babii was found to not meet the criteria of professional ethics and integrity by the Ethics Council due to violations in property declaration, but the HQCJ made the opposite decision. HQCJ members Hatseliuk, Dukh, and Melnyk voted against this decision.

The HQCJ ignores the closing of DUI cases based on the statute of limitations (clause3 of the Joint Indicators). This is a signal that judges can continue this practice without fear of punishment, which leads to an increased number of road accidents, including fatal ones, due to drivers having a sense of impunity. For instance, judge Alina Honcharova closed at least 26 cases of DUI based on the statute of limitations expiring. In 2018–2020, the judge issued over 100 decisions to close cases under Article 130 of the Administrative Code and brought the liable to justice only in 8 cases. HQCJ members Omelian and Sabodash voted against recommending the judge for this position.

Another example is the decision on fitness for office of judge Pedenko, who delayed 21 cases of DUI until the end of the statute of limitations. In two cases, the judge even released the drivers from liability on the grounds of insignificance even when the law already contained a direct prohibition against such decisions. That is, the judge simply made illegal decisions.

In some cases, the Commission finds Maidan judges fit for office (clause 4 ofJoint Indicators). For example, in its opinion, the PIC indicated that judge Larysa Radutska deprived a participant of peaceful assembly during the Revolution of Dignity of a driver’s license for four months and later also failed to mention it in her declaration of integrity. However, the Commission indicated that during the interview, judge Radutska refuted “any reasonable doubt in the judge’s non-compliance with the qualification assessment criteria” — however, it did not specify how. Only HQCJ member Yaroslav Dukh voted against recognizing the judge fit for office.

Similarly, judge Ada Pedenko issued decisions on fining innocent individuals based on falsified evidence in connection with their trip to Viktor Yanukovych’s residence in Mezhyhiria on December 29, 2013. Only HQCJ members Bohonis, Omelian, and Chumak voted against the judge’s successful qualification assessment.

Despite claiming to fight against academic dishonesty (clause 18 of the Joint Indicators), the Commission only narrows it down to short questions at interviews; for instance, it failed to respond to judge Olena Kovalchuk’s lack of academic integrity. The PIC’s opinion covered falsifications, including citations that were not actually available in the indicated source in her paper. During the interviews, Kovalchuk failed to explain how she was able to use scanned English-language sources from the 80s without knowledge of English. She also did not know what the name of the research base that she mentioned in the sources of her work stood for. Members of the HQCJ Dukh, Kobetska, Sabodash, and Chumak voted against the decision to recommend Olena Kovalchuk for the position of a judge.

During his interview, judge Oleksandr Hryshko failed to remember the name of the foreign outlet where his research results were published. In addition, the judge failed to substantiate the need to use numerous sources in Russian that had nothing to do with the subject of his dissertation. Even in the questionnaires contained in the judge’s profile, Hryshko “concealed” his academic activities. In spite of this, the HQCJ found judge Hryshko fit for office. Only HQCJ members Kobetska and Sabodash voted against this decision.

We areaware that the HQCJ and the PIC hold joint meetings to overcome discrepancies in the application of relevant criteria. We hope that based on these meetings, the institutions will be able to reach a common decision, or at least the content of decisions will make it clear why a certain position of the PIC isnot shared by the Commission.

The decisions of some panels of the HQCJ contain no substantiation why the PIC opinions were rejected. They have the following structure: 1) outlining the position of the PIC; 2) outlining the judge’s explanations; 3) the Commission’s score. Thus, the HQCJ avoids providing its own assessment of the circumstances reported by the PIC and the judge’s explanations.
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There are also cases when the HQCJ board rejects certain arguments about violations saying “not confirmed,” without providing any detailed explanations. One example is the decision based on the qualification assessment of judge Radutska. In its opinion, the PIC indicated that the judge was involved in illegal persecution of peaceful protesters during the Revolution of Dignity, failed to mention this in her declaration of integrity; the Council also provided a number of other facts, which the panel consisting of HQCJ members Sydorovych, Volkova, Kydysiuk, and Omelian indicated in their decision in great detail. Then it responded in one sentence.

Another example is the decision of aHQCJ panel (Hatseliuk, Koliush, Melnyk) regarding judge Kapitonov. In its opinion, the PIC pointed out that the judge, as part of a panel, acquitted the so-called head of the “DPR Supreme Court” on the charges of participation in the activities of a terrorist organization. In particular, in the decision Kapitonov indicated that “there is no proof that the terrorist organization exists.” This decision was later overturned in the appellate instance, which issued a conviction, later upheld by the Supreme Court. The appellate court noted that the evaluation of the evidence by the first-instance court “was biased and one-sided.” Despite the position of the higher courts, which have already provided an assessment of the legality of the court decision, the HQCJ panel refused to assess the judge’s actions during the adoption of his decision, without justifying it in any way.

This tendency is not characteristic of all HQCJ panels, but it undermines the work of the entire agency.

The new composition of the HQCJ emphasizes the transparency and openness of its work. However, concealing reasoning, rejecting public remarks regarding judges’ integrity makes it impossible to understand what violations are considered significant and how facts indicating a lack of integrity were verified. This strongly suggests that some members of the Commission fail to do their job properly.

Under the law the formation and maintenance of judges’ profiles has to take place in an automated system. However, it has not yet been set up, even though under the law, it was supposed to be commissioned back in 2017.

Prior to the full-scale invasion, the profiles were published with the use of regular Google Drive tools. They were saved in PDF format without OCR. The profiles concealed more information than required by the law. The previous composition of the HQCJ usually did not update judges’ profiles.

The new composition of the HQCJ, however, has still not fulfilled the requirements of the law regarding providing open general access (apart from personal data, medical information, state secret etc.) to judges’ profiles on its website.

We understand why it made sense to temporarily block public access to judges’ profiles at the beginning of the full-scale invasion. However, as the situation develops, this approach should be revised, similarly to how electronic property declarations were opened again in the autumn of 2023.

To our official inquiry to the HQCJ, we received a response that as of March 6, 2024, restoring general access to sections of the official HQCJ website with judges’ profiles was not considered at HQCJ meetings. This issue has already been included on the agenda. We are going to monitor the Commission’s decision.

In addition, the HQCJ provides PIC members with access to judges’ profiles in electronic format with blacked-out personal data and other sensitive information. However, full access to the profile is possible only in paper form upon written request and only in the premises of the HQCJ. The lack of full remote access to judges’ profiles obstructs the PIC’s work.

The Commission has already approved the Procedure for Formation and Maintenance of a Profile of a Judicial Candidate in the Electronic Form (reporting member Roman Sabodash). We are waiting for a similar step regarding all judges’ profiles.
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The HQCJ claims to be open in its work; however, actual access to judges’ profiles is limited, which is inconsistent with the law. The absence of an automated system and the provision of profiles only in paper format complicates the work of the Public Integrity Council and undermines the transparency of qualification assessment.  

The Regulation on the procedure and methodology of the qualification assessment establishes that the maximum score of a judge under the criterion of competence (professional, personal, social) is 500 points, under the criterion of professional ethics —250 points, and under the criterion of integrity — 250 points. A total of 1000 points.

The new composition of the HQCJ provided a high assessment of professional ethics of Maidan judge Larysa Radutska — 210 points out of 250. Under the integrity criterion, the judge received 180 points out of 250. The motives for this decision of the panel consisting of Sydorovych, Volkova, Kydysiuk, and Omelian are indicated in the decision in the vaguest possible terms. It is unclear why the judge got 210 points for ethics, as opposed to 100 or 50 (or even 0, which would be fair under the indicators agreed by the HQCJ jointly with the PIC). Unfortunately, at its plenary session, the Commission found Radutska to be fit for office.
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This approach was inherited from the previous HQCJ composition, when Maidan judge Ada Pedenko received 172 points for ethics, and 190 for integrity in 2019. As recently as in 2023, despite the“accomplished” PIC opinion and major violations with closing cases on DUI, judge Pedenko successfully passed an interview at the plenary meeting of the HQCJ.
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Another problem is adding up points to reach the necessary minimum. For instance, judge Liubchyk, who let off 35 drunk drivers out of the 106 DUI cases, scored 670.75points, which is the required minimum (over 67%, with the maximum being 1000 points). A panel consisting of HQCJ members Chumak (reporting), Sabodash, and Pasichnyk awarded the judge 170 out of 250 for ethics and 175 out of 250 for integrity. The question arises again — why not zero?

The same HQCJ panel managed to gather up 166.5 points for ethics and 154 for integrity to reach the minimum of 671 points for judge Luniova.

The members of the Commission refuse to explain in public how and why they calculate these scores, thus keeping a major leeway to “save” some judges under vague criteria.
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This leads to the conclusion that HQCJ members score judges for ethics and integrity arbitrarily, as they find convenient. Even after establishing integrity indicators, Commission members find an opportunity to find enough points to “whitewash” a judge.

In September 2023, the HQCJ announced competitive recruitment for 560 vacant positions of judges in local courts. Due to changes in the law, the Commission now interviews winners of the competition, and after that, it may recommend the candidate for the position of a judge.

From January to May 2024, the Commission interviewed over 400 winners of the competition, most of whom ended up recommended for appointment. However, due to the high speed, the quality of the interviews was not necessarily up to par.
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During the qualification assessment, the Commission assesses judges based on indicators coordinated with the PIC. But there are no such criteria when selecting candidates for local courts, and HQCJ panels apply varying approaches at their own discretion.

Recommendations of candidates are purely formal and contain no justification. The motives behind rejecting public commentary regarding candidates lacking integrity remain unclear.

In particular, HQCJ members Koliush and Hatseliuk recommended (with HQCJ members voting against it) appointing Kyrylo Oliinyk, assistant judge of the Supreme Court, as a judge. The public sent an appeal to the Commission that the candidate did not declare the income of his brother in the amount of UAH 1million and may have underestimated the value of his property in order to avoid financial monitoring. Despite these and other questions, the candidate was still recommended for appointment. In its decision, the HQCJ refuted the facts indicating the candidate’s lack of integrity by saying “no information was received about the candidate that would cause reasonable doubt of... his compliance with ethical standards, of impeccable conduct... and of the legitimacy of his income sources.”

The same panel recommended candidate Oleksandr Bazov. During the interview, HQCJ members emphasized that the candidate violated the requirements of the anti-corruption legislation. Among other things, the candidate claimed that he had neither income nor expenditures to be declared since 2017, and that his parents allegedly paid for everything. However, the candidate did not declare income received (including gifts from his parents), which is also a violation of the law. There were also questions regarding Bazov’s professional competence, since he was unable to answer the question of what is considered a “gift” under anti-corruption legislation. The panel nevertheless recommended appointing Oleksandr Bazov as a judge. This time, Hatseliuk and Melnyk voted in favor of this recommendation, and Koliush voted against it. The decision is identical, and it does not contain a single word of what went on at the interview.

Another HQCJ board was very fast while conducting interviews, which took less time than service in a fast food place. The interview with Olha Mykhailiuk, assistant head of the Appellate Commercial Court, whose husband is a judge, lasted 7 minutes. According to the declarations, the candidate and her family own valuable property of unknown origin. However, members of the panel — Sydorovych, Volkova, and Kydysiuk — were only interested whether she was ready to move to a different area. After her agreement, the panel recommended Mykhailiuk for appointment as a judge. The reasoning in the decision is identical, “no information received that...” — thus, there was no need to dig deeper.

The panel consisting of HQCJ members Sydorovych, Volkova, and Kydysiuk recommended appointing official of the Prosecutor General’s Office Yuliia Bulanova to a vacant position of a judge. The panel had no interest in establishing the origin of the candidate’s brother’s funds, since he gave her an apartment costing over UAH 8 million. Now, the HCJ is looking for the origin of this property. In addition, despite 22 years of experience in prosecution agencies, the candidate was unable to answer simple questions, such as whether the prosecutor’s office can file lawsuits in the interests of the state. Of course, the decision contains no mentions of the awkward moments at the interview.

This same panel’s track record includes recommending Oleksandr Ishchenko, who was responsible for preparing tests in the National School of Judges and had access to practical tasks for testing candidates for positions of judges, and Olena Bilohrud, member of the HQCJ Secretariat, who may have also had access to tests and practical assignments. Surprisingly, these candidates received very high scores for the tests and the practical task and ranked first and second to get a position in Irpin court near the capital. There were numerous property questions to the candidates  (1, 2) by the AntAC and Automaidan, but he panel issued two identical decisions, ignoring these facts.

Another employee of the HQCJ Secretariat, Oksana Musiienko, has been holding the position of a deputy director of the department, responsible for the qualification exam for the positions of judges, since 2015, and unsurprisingly, she also ranked first in the results. This time, the panel, consisting of HQCJ members Sabodash, Omelian, and Pasichnyk, at least held a formal verification of information, which still did not refute or prove anything at all.

Thus, some panels ignore facts of low integrity while conducting interviews and fail to mention it in their decisions. This approach to appointing judges to vacant positions at any cost can exacerbate existing trust issues and have long-term negative consequences for justice.

Since 2015, the Secretariat of the Commission has been headed by Olena Ponomarenko. Before that, she held the position of the deputy head for a year and a half. It is Ponomarenko who should be responsible for the performance of functions assigned to the Commission’s Secretariat.
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Ponomarenko’s activities cause many questions. First, while auditing the use of budget funds by the Commission in 2020-2022, members of the Accounting Chamber found that the head of the Secretariat systematically gave herself and her deputy Oleksandr Byrstushkin additional bonuses; however, such payments can only be made by the Head of the HQCJ, and there was none in that period. It is unclear what the bonuses were for and why the payments were made with abuse of office and without settling the conflict of interest.
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Unfortunately, Head of the HQCJ Ihnatov and acting head Sydorovych both ignored these facts. In addition, Ponomarenko remained in office and began appearing more and more often at joint meetings of HQCJ leadership with donor representatives and judicial governance agencies.

Ponomarenko is also unable to properly organize the work of her subordinates. We previously reported that the Secretariat sabotages the recruitment of judges for vacancies. For the first time, decisions on recommending individuals for appointment as judges were not published on the website of the Commission and not sent to the HCJ. In the situation of shortage of judicial staff and significant workload in courts, the issue of timely appointment of judges for vacant positions became all the more acute. After just one publication, more decisions were published on the website of the Commission that in six weeks before. A situation occurred when decisions were issued and signed by Commission members in time, but were later not sent to the HCJ for further decision-making.
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As the leader of the Secretariat, Ponomarenko was responsible for the quality of analysis of candidates for positions in the Supreme Court, the High Anti-Corruption Court; selecting candidates for positions of judges; qualification assessment of judges for fitness for office. However, this analysis was mostly superficial, which did not help the judicial reform.

In addition, by a strange coincidence, two HQCJ members, Musiienko та Bilohrud, who decided to become judges, received very high scores for practical tasks, which landed them a high place in the final rating. By the way, even assistant judges, who work with texts of judicial decisions every day, did not receive scores at that level.

To achieve quality in the Commission’s work, its Secretariat must be characterized by professionalism and integrity. Unfortunately, this cannot be achieved with Olena Ponomarenko at its helm. Therefore, it is crucial to get new management, holding competitive recruitment for key positions in the Secretariat.