The EU project “Support to Justice Sector Reforms in Ukraine” has helped carry out the most difficult psychological testing of candidates for the positions of judges of the Supreme Court in the history of Ukraine and Europe. Find more information on how the new Supreme Court works and what challenges the newly appointed judges encounter.
On 15 February, the new Supreme Court turned 2 months. During that time, 115 newly-appointed judges, every fourth of whom has background as a lawyer or scholar, heard over 8 thousand cases, motions and complaints. The new judges are up to a daunting task of handling almost 75 thousand cases for 2011-2017, left by the previous members of the Supreme Court of Ukraine and higher specialized courts, while new cases arrive every day. To learn about what’s going on in the highest echelon of the justice system after a contest, the challenges the newly-appointed judges have to deal with, and ambitious plans of the Supreme Court and the entire justice system for 2018, read firsthand from the Ukrainian Themis.
What has justice reform changed to date?
After the Revolution of Dignity, a true reboot of the judicial system went underway in Ukraine: in the fall of 2016, amendments to the Constitution of Ukraine (which was amended for the first time in 20 years) concerning dispensation of justice and a revised version of the Law of Ukraine On the Judicial System and the Status of Judges were enacted.
The judicial branch of power becomes independent from politicians. The president and the parliament saw the right to appoint and dismiss judges taken away from them. In the past, there were no open vacancies and competitive selection procedures as judges were appointed by the president and MPs. In other words, the president and the legislative branch were appointing the judicial branch, which was supposed to be independent from politicians. For the first time in the history of independent Ukraine, judges are now appointed via an open contest held by the Higher Qualification Commission of Judges of Ukraine, and candidates for judges are approved by the Higher Council of Justice. The president is only responsible for ceremonial signature of judge appointment decrees.
Judges are stripped of full immunity. Now, with the consent from the Higher Council of Justice, judges may be subjected to disciplinary action, rebuked, dismissed and even taken into custody. Moreover, judges are now obliged to complete three declarations: electronic (reporting income and property), family relationships (stating relatives working in the government or justice system), and integrity. In the latter declaration, a judge is required to refute accusations of corruption offenses, prove diligent adherence to the oath, etc. In addition, all judges without exception must pass a qualification assessment (in particular, featuring representatives of the public) to confirm their competence, professional ethics and integrity, and undergo a psychological test. Judges refusing to take or failing the test will be dismissed. Not everyone took the changes positively: beginning from 2016, almost 3 thousand judges have already resigned, in particular, in order not to go for a qualification assessment. This is more than a third of the entire judicial corps. It was a sort of self-cleansing of the judicial system.
Transition to a three-tier court system and restart of the Supreme Court. Until recently, there were four tiers of the court system in Ukraine: courts of first (local) and second (appellate) instance, which heard cases and examined circumstances and evidence. If necessary, a court judgment could be revised in one of the three higher specialized courts: commercial, administrative, and for civil and criminal cases. Finally, there was the fourth instance, the Supreme Court of Ukraine, which was applied to in exceptional cases only. However, this approach did not prove itself right.
Today, Ukraine has adopted a comprehensible three-tier court system used in most countries of the world. The new Supreme Court consists of cassation courts: administrative, commercial, civil and criminal. In addition, the Grand Chamber of the Supreme Court was created to ensure uniformity of judicial practice. The Chamber enters uniform, predictable, comprehensible judgments that are the same for all, and hears socially important cases. Thus, the Supreme Court has recently upheld the rights of a pregnant woman who was issued a smaller financial assistance due to reorganization of her employer, and ruled to recalculate the amount of pension paid to an ex-police officer.
“The new Supreme Court and the new procedural codes de–facto introduce the principle of “quasi precedent”, when judgments of the court of the highest instance become a benchmark for courts of lower instances. Therefore, the new process ensures stability, unity and predictability of legal stances in all jurisdictions, and an applicant to court would already know what a judgment in a case with similar circumstances might be”, Olena Pryvalova, a communications advisor of the Council for Judicial Reform explains.
Another positive innovation was that for the first time, the court of the highest instance features not only judges hailing from courts of all instances but also law professionals who have never worked in the judicial system: lawyers and scholars with 10-year work experience. Every fourth judge in the new Supreme Court is one of them.
Amendment of procedural law, without which the new Supreme Court would not work, is an important part of reform. In particular, the law simplifies the procedure of hearing uncomplicated cases, guarantees greater openness of judicial processes, implements an “electronic court” system which makes it easier to exchange information between all participants of a judicial process, and contains many other new rules.
Local courts. Ordinary district, city-district and city courts are amalgamated into circuit courts. It will allow to increase effectiveness of courts and optimize budget expenditures. There will be no more courts without judges. Presently, the State Judicial Administration is developing a draft new map of Ukrainian courts, and after that, the Higher Qualification Commission of Judges will start transferring judges from liquidated to newly-established courts.
How Supreme Court judges were passing a contest selection
A contest selection for the Supreme Court kicked off on 7 November 2016. 120 vacancies were contested by 1436 applicants, i.e. almost 12 candidates per vacancy. 45% of them were judges, 24% lawyers, 15% scholars and another 16% candidates with various experience in these fields. After examining documents, 625 candidates were admitted to a qualification assessment.
“A contest selection for the Supreme Court was a certain professional challenge for me. In the past, lawyers and scholars could not even dream about competing in an open contest for the position of a Supreme Court judge. As a lawyer and a scholar, I knew very well that the chance to take part in this contest, which was held for the first time, might come to you only once in a lifetime”, Sehii Zhukov, a judge of the Commercial Court of Cassation who worked in the past as an associate professor at the department of law and European integration of Dnipropetrovsk Regional Institute of Public Administration and director of Nexum Law Firm says.
A portion of qualification tests and all practical tests were developed under the EU project “Support to Justice Sector Reforms in Ukraine”, which was the first among international donors to join the process of creating a new Supreme Court.
“First, the candidates had to take an anonymous written test for the knowledge of law. Those who passed it were admitted to a practical test. The candidates were given a case almost 70 pages thick, with applications to court and judgments of first-instance and appellate courts, and were asked to write a resolution of the Supreme Court”, Oksana Matiiash, a national expert of the EU project “Support to Justice Sector Reforms in Ukraine” says.
The writing of a cassation court resolution was what the newly–elected judge Serhii Zhukov remembers the most: “As a lawyer, I never wrote a draft resolution by hand during 5 hours before, especially when seeing case documents for the first time and not even using a rough copy, because I didn’t have time. It was a very specific task”.
382 candidates have passed the test. After that, they had to undergo the next phase of qualification assessment: testing personal moral and psychological qualities and general abilities. During this contest selection for the Supreme Court, the candidates had to pass the most difficult psychological test in the history of not only Ukraine but the whole Europe. Even selection tests at the National Anticorruption Bureau of Ukraine (NABU) were much easier.
The EU project “Support to Justice Sector Reforms in Ukraine” was the first to support this idea and helped with organizing psychological testing of judges.
“A judge must not only be a good lawyer but also be able to resolve conflicts in the society. What’s needed for that is more than just legal knowledge. A judge needs certain psychological characteristics and social skills. That was what psychological testing was aimed at”, Dovydas Vitkauskas, Coordinator of the EU project “Support to Justice Sector Reforms in Ukraine” and an ex-legal advisor of the Secretariat of the European Court of Human Rights explains the need for this assessment.
Moral and psychological qualities of candidates were evaluated by ОS Ukraine, a company which before that oversaw psychological testing of NABU and Specialized Anticorruption Prosecution Authority detectives. Over the course of a day, candidates were tested on the basis of four methodologies which revealed their strengths and weaknesses and allowed to forecast their future behavior.
“Supreme Court judges are very expensive cadres for the nation, appointed for indefinite term. The loss of or inefficient performance by one of them entails not only financial losses but also risks for the society. That’s why we used four methodologies at once. Usually, we use one or two of them for selection purposes”, Anastasia Diomina, OS Ukraine Project Manager explains.
By the way, the base salary of a new Supreme Court judge amounts to 75 times the living wage amount for able-bodied persons, which as of today, equals to over UAH 130 thousand per month excluding additional bonuses for length of service, academic degree and so on.
The candidate’s general abilities were evaluated first. The objective was to test their mathematical, logical, abstract and verbal thinking. To a certain degree, this test could be compared with an IQ test. The test results showed how fast and efficiently can a candidate process new information and handle work assignments.
Then, there were purely psychological tests. The first, MMPI-2 test checked the ability to withstand stress and existence of hidden mental problems: depression, aggression, suicidal inclinations and other abnormalities. This test is very complex, consisting of almost 600 quite personal questions or statements. A similar methodology was used at the National Police to select patrol officers and for evaluation of NABU detectives. This test gives answers to many important questions, in particular, whether a person can be trusted with firearms.
Svitlana Yakovleva, a Criminal Court of Cassation judge and an ex-judge of the Court of Appeals for the Kirovohrad Oblast: “Psychological testing wasn’t easy and, to a certain degree, was emotionally exhausting. Especially the questions that concerned private life”.
Next was the methodology called BFQ-2, or the “Big Five”. It is designed to assess five key characteristics: energy, benevolence, diligence, breadth of horizon and emotional stability. Simply put, the candidates were tested for the ability to compromise and cooperate.
Lastly, HCS, the integrity test. Its results allow to determine with high degree of probability whether a person has an inclination toward theft, abuse of official capacity or disclosure of important information, and how a person is disciplined and respects others.
The concluding part of psychological testing was the interview with a psychologist.
Vsevolod Kniaziev, secretary of the Grand Chamber of the Supreme Court and the ex-president of Mykolaiv Circuit Administrative Court: “Psychological tests lasted for the whole day, from the morning till evening, and were exhausting. After that, there was an interview with a psychologist, and I realized that these tests and the interview allowed the psychologist to “see through me”. It was a bit uncomfortable, but I knew that without it, dishonest people could not be sifted out”.
In the final phase of the contest, the Higher Qualification Commission of Judges interviewed the candidates live on TV.
New faces in the Supreme Court
Based on the contest results, the Higher Qualification Commission of Judges submitted 120 candidates to the Higher Council of Justice, 115 of whom were approved and appointed as judges per Decrees of the President of Ukraine.
The list of winners included many unordinary candidates. Thus, the Kharkiv judge Oleksandr Mamalui, who served twice in the ATO area, defending Avdiivka and the Donetsk Airport, became a judge of the Commercial Court of Cassation as part of the Supreme Court. The youngest judge, 32-year-old Kostiantyn Pilkov, seriously criticized certain stances of the Supreme Court of Ukraine during his tenure as a lawyer and an arbiter. And today, he takes efforts to fix these flaws when hearing commercial disputes in the new Supreme Court.
In the meantime, 30 out of the 120 successful candidates received negative opinion from the Public Integrity Council, the world’s unique association of public activists who helped the Higher Qualification Commission of Judges gather information about candidates for judges to check their integrity. This situation caused a wide resonance in the society. The EU Delegation to Ukraine did not remain on the sidelines, either, calling the selection process “basically transparent” but at the same time, asked the Higher Council of Justice to explain the selection of persons with tainted reputation to the positions of judges at the new Supreme Court.
“The integrity, independence and professional qualities of all judges must not be questioned. The appointment of even a few judges with tainted reputation may undermine trust in the entire reform”, the official announcement said.
The Higher Council of Justice stated in its announcement that not the entire information from the Public Integrity Council concerned integrity of candidates; in particular, some of them evaluated the judges’ decisions, which contradicts the principles of law.
“I’d like to assure you: we understand that creation of a new judicial system is our most important task we’re working on. Today, Ukraine is witnessing both the judicial reform and the creation of a civil society, which is also growing. Therefore, we have to give a lot of weight to information we receive”, Ihor Benedysiuk, Chairman of the Higher Council of Justice said.
“The participation of people representing not the judicial branch but the civil society in the process of selecting judges as a form of public control over this procedure is considered one of the most important instruments of ensuring accountability of judges and increasing public trust in the judicial branch. However, this control must be carried out in accordance with clear rules and procedures, guaranteeing and observing fundamental rights of candidates and judges,” Reda Moliene, an international expert of the EU project “Support to Justice Sector Reforms in Ukraine” believes.
Overall, the Public Integrity Council (PIC) has prepared opinions regarding 146 candidates. Later, it canceled the decisions concerning 12 of them. 51 candidates have been eliminated based on PIC opinion. In total, 80% of candidates to whom the public had questions did not make it to the Supreme Court.
An important positive achievement of the contest was election to the Supreme Court of 25% of “fresh blood from outside the system”: former lawyers and scholars. This phenomenon is unique not just for Ukraine. For example, the quota for “non-judges” is 10% in the Supreme Court of Portugal and 20% in Spain. In the past, many of them were partners in successful law firms. For example, among the newly-appointed members of the Supreme Court are Doctor of Sciences and partner of Kibenko, Onika & Partners Law Firm Olena Kibenko, Nexum Law Firm Director Serhii Zhukov, and the former Director of the Center for Commercial Law and presently the President of the Supreme Court Valentyna Danishevska.
The new judges are gradually changing the Supreme Court’s philosophy. There are five working groups focusing on management of the Supreme Court, communication strategy, uniformity of judicial practice, prevention of corruption and the new structure of court judgments. The first judgments filed in the Unified State Register of Court Judgments already have clear and comprehensible rubrication, where history of the case and actual circumstances, assessments by courts of the first and appellate instances, arguments of the application for cassation appeal and conclusions of the Supreme Court are separated. Judges actively communicate with mass media, conduct surveys regarding changes, participate in flash mobs in social networks where they speak about the work they do.
What challenges the new Supreme Court has to overcome
In the past two months, the new Supreme Court has heard almost 8 thousand cases. About that much was received during this period. Close to 75 thousand cases were left from the previous Supreme Court of Ukraine and higher specialized courts. The Administrative and Civil Courts of Cassation found themselves in the most difficult situation, having inherited from higher specialized courts and the old Supreme Court over 39 and 28 thousand cases, respectively.
“From the very first day of work, cases and materials were distributed among judges. Both new complaints and the cases pending hearing by the Higher Administrative Court of Ukraine and the Supreme Court of Ukraine were distributed at the same time. Every judge received from 20 to 90 cases and materials every day. The court’s administrative office expects to complete assignment of old cases in a month’s time, and every judge would have a backlog of approximately 2 thousand cases and materials”, Tetiana Antsupova, an Administrative Court of Cassation judge who was a professor at the department of international law and comparative law studies of the International University of Humanities says.
According to Mrs. Antsupova, most judges have opted for a chronological approach to consideration of cases: simultaneously with “new” lawsuits, statements and complaints, a judge works on “old” cases, starting from the oldest ones.
The judge Serhii Zhukov talks about cases at the Commercial Court of Cassation: “Today, I have only positive impressions from the work I do. I realized that during the first months at this job, judges would have to cope with a huge workload. During the first month, I received over 100 cases. Nevertheless, this is an opportunity to positively influence the consistency and uniformity of judicial practice”.
Viktor Prorok, a Civil Court of Cassation judge admits that work at the Supreme Court is uneasy, because presently, he has almost 400 pending applications for cassation appeal. Before that, he was at the helm of his own law firm, Prorok & Partners.
“The system which was shaping itself up for decades cannot be revamped in one month”, Vsevolod Kniazev, a Grand Chamber judge comments. “You can consider it a success if it doesn’t revamp you. But on the bright side, you have at least an opportunity to change something for the better. Even if you help one person, your efforts weren’t in vain”.
However, our European partners are worried about how efficiently would the new Supreme Court be able to implement uniform rules for the entire legal system, given such a huge number of cases. According to Jautrīte Briede, a judge of the Supreme Court of Latvia and the Permanent Advisor to another EU–funded project, Supreme Court Twinning, it is important to limit the categories of cases heard by the Supreme Court.
“The main objective of the Supreme Court is to make sure that similar cases in different courts are resolved in the same manner, and issue instructions on how to interpret legal provisions. The Supreme Court should not examine evidence but only uphold decisions of appellate courts or remand cases”, Jautrīte Briede explains.
Under the two-year project, representatives of the Supreme Courts of Latvia, Germany and Austria began in February 2018 training judges and members of administrative staff of the Supreme Court of Ukraine, discussing, among other things, procedural codes setting out the list of cases for hearing by the Supreme Court and the ways of improving them. This project is being implemented by the German Foundation for International Legal Cooperation (IRZ) and the Justice Ministry of the Republic of Latvia.
To complete the staffing of the Supreme Court, a similar contest may be held in 2018 for another 80 positions of judge, as the law requires the Supreme Court to have up to 200 judges. Hopefully, more talented and worthy judges, lawyers or scholars would want to become a judge of the court of the highest instance after seeing how transparent and objective the contest is.
With the support from the new EU project “Law”, the Higher Qualification Commission of Judges will evaluate judges of courts of the first and appellate instances using a methodology similar to the contest for the Supreme Court to test their professional, social and psychological abilities. There are almost 5 thousand judges in Ukraine in total; almost 1 thousand are being checked right now, and at least 2 thousand more judges will have to undergo evaluation by the year’s end. After recertification, the judge’s pay will increase several times. The base salary of a local court judge will start from 30 times the living wage amount (over UAH 50 thousand), and that of an appellate court judge from 50 times the living wage amount (from UAH 88 thousand).
At the same time, a contest for the positions of judges continues to fill close to 1.5 thousand vacancies in local courts. Currently, the Higher Qualification Commission of Judges oversees selection of 600 new judges from over 5 thousand candidates, i.e. 8 candidates per vacancy. Those who will past the test will be included to the reserve for participation in contests for new circuit courts. Presently, there are dozens of courts with one, maximum two judges, and in some localities, courts were shut down altogether because they have no judges at all.
In 2018, the Ukrainian government also has to establish two new courts: the Higher Court for Intellectual Property comprised of 21 judges and the Higher Anticorruption Court. Judges for both these courts will have to be selected via an open and transparent contest. A full-fledged functioning of the Higher Anticorruption Court is not only a condition for Ukraine’s continuing integration into EU but also the foundation for a uniform and predictable application of rules to everyone in the country, including high-ranked officials involved in corruption schemes and inflicting substantial damages upon the state.
“There is no need to further discuss or argue over anticorruption courts. Today, they simply have to be implemented in view of the Venice Commission’s recommendations. If you won’t intensify the fight against corruption, there will be no economic growth, investments and new jobs for the Ukrainians. Give anticorruption organizations a chance to do their job!”, Hugues Mingarelli, Ambassador and Head of the EU Delegation to Ukraine said back in November 2017.
For the first time during independence, the Ukrainians received a chance for affordable, fair and predictable trial. It is important to make sure that the Ukrainian government implements the objectives of judicial reform for 2018, because without a transparent and efficient justice, there will be no further integration of Ukraine into the European Union, no foreign investments and no new jobs for the Ukrainians.
By Maria Datsiuk, Communication Europe in Ukraine project