Chief Justice of Supreme Court Stanislav Kravchenko: When regular checks are introduced, certain number of judges resign
Over the past two years, during the full-scale phase of the war, the Supreme Court has repeatedly been at the epicenter of high-profile scandals. First, it was the dismissal of Judge Bohdan Lviv, after which, at the request of the then-Chairman of the Court, Vsevolod Kniazev, the remaining judges had to be checked for Russian citizenship. Later, it was a corruption scandal and the detention of Kniazev himself.
The appointment of Stanislav Kravchenko as Chief Justice of the Supreme Court, who was once questioned for his property and integrity declarations, also caused a negative reaction among the public.
And now the issue of a possible reboot of the Supreme Court is on the agenda. Moreover, international partners, whose support is very important for Ukraine, insist that corruption in the highest judicial body should be overcome by analyzing property and integrity declarations.
That is why we talked to Chief Justice Stanislav Kravchenko about whether such a reboot and a new competition is possible now, about the results of checking judges for citizenship of other states, about the possible reinstatement of Bohdan Lviv and the enrollment of judges of the former Supreme Court of Ukraine who did not pass the competition. He also talks about how the war has affected the judicial system and what happens to cases if there are no judges in a court at the moment.
"THERE ARE MORE THAN ENOUGH WAYS TO CHECK JUDGES IN UKRAINE"
- After the detention of former Supreme Court Chief Justice Vsevolod Kniazev, there was a lot of talk about rebooting the Court, about checking judges, including with the help of a polygraph, and there were proposals that the entire court should be checked if at least one judge was suspected. Has anything changed for the Supreme Court after these events?
- First of all, I would like to emphasize that public trust is very important for the court and it is necessary to constantly take care not to lose it. But if we are talking about inspections, we need to clearly understand what their purpose is. Do we want to improve the situation or stop the work of the Supreme Court?
At the beginning of July last year, a draft law was registered in the parliament that proposes, among other things, to test all judges of the Supreme Court, including with the polygraph you mentioned.
Since it concerns judicial independence and the judiciary, such a draft law must be discussed at the Plenum of the Supreme Court with the approval of the opinion. We held such a Plenum, and the judges clearly expressed their position: we understand the situation and the public demand for judicial integrity, but all verification procedures must be carried out in accordance with the Constitution and laws of Ukraine. The Plenum's conclusion was sent to the Verkhovna Rada of Ukraine.
In early October last year, within a fairly short period of time after the request, the Venice Commission gave its opinion. In short, it also emphasized that everything must be done in accordance with the Constitution and laws of Ukraine.
The conclusion also states that the principle of collective responsibility is unacceptable. All over the world, the legal system is based on the principle of individual responsibility.
In addition, the Venice Commission pointed out that the means provided for by law to check and control judges are sufficient and there is no need to create something else. Its conclusion also referred to the polygraph - there is no such verification procedure in European practice and it is undesirable for the verification of current judges. Obviously, this is because the polygraph results cannot be trusted. And the main thing is that it should not be used as a means of putting pressure on judges or destabilizing the situation.
- How did the Verkhovna Rada react to this conclusion?
- So far, this draft law has not been considered. Of course, people's deputies will decide what its future fate will be.
As for the existing measures, I agree with every word of the Venice Commission's opinion. The legislation clearly defines both the procedures for vetting judges and the ways to bring them to justice.
As for the situation with Kniazev, he has been served with suspicion. If only he is suspected, then what are the grounds for checking the rest of the judges?
For example, when someone from the team commits a traffic accident, we don't send the others to check their knowledge of traffic rules.
Because the issue is not only about the Supreme Court. There is also a draft law that proposes to check all civil servants, judges, and prosecutors if at least one person in any institution is suspected of committing a crime.
The 2016 reform and other legislative changes introduced procedures to verify the integrity of judges.
First of all, judges must submit an integrity declaration by May 1 every year, which consists of answers to a large number of questions. And, of course, they understand that it can always be checked. These declarations are open to the whole world.
By the way, the new High Qualification Commission of Judges of Ukraine has now expanded the list of questions in such a declaration by adding questions about trips to Russia, the availability of passports of other states, etc.
In addition, by 1 April, we must submit a declaration of property status to the NACP.
All declarations are audited every five years. The Supreme Court conducted such an audit in 2020. It lasted about seven months, and, for example, I provided about 200 pages of explanations about the property I had acquired during my life.
That is why when we talk about judges, they have long ago filed the so-called zero declaration, where you can see all their assets for the period of their activity. Returning to the conclusion of the Venice Commission, I repeat: there are more than enough ways to check judges in Ukraine.
And when someone says: "Let's create something else," I have a question as to why they would do that. Believe me, it is uncomfortable to go through a several-month procedure. In addition, you feel tired, because the workload of judges today is significant due to a large staff shortage. And when regular inspections are introduced, some judges resign. This, of course, worsens the staffing situation.
- If a person has nothing to hide, then let them check themselves. So, what for fatigue?
- I thought the same thing in 2015. But it turned out that it's not that simple.
- Are you referring to the negative opinion of the Public Integrity Council, which was received during the competition to the Supreme Court?
- Yes.
I never thought that the public could have any complaints against me. At the time of the competition to the Supreme Court, I had been working as a judge for 25 years, and I was being blamed for 9 hectares of land that my parents bought in 1976 and built a house there. What's the point? They say: "You have been declaring both the land and the house for 10 or 15 years and for some reason only the house for 5 years."
- Why didn't you include it?
- The history of the introduction of the declaration in Ukraine is quite complicated. At first, it was not clear whether judges had to file declarations at all. A form was used for civil servants of the first and second categories.
I was proud that my parents gifted me a house. Besides, at that time - in 1991 - I was not yet a judge and had just arrived after graduation. I always declared the house. The dispute was over whether I had to declare the land on which the house stands. That's all. Now I sometimes jokingly say that I'm going to my "dishonest" land (smiles - author). Seriously, this is my homeland, my parents built the house, and I cherish it.
No matter how much I have spoken about this situation publicly, I still have to explain it. It is clear that the house cannot be in the air, it must be on the ground. But what do you think: he showed the house, but hid the land under it? Is this a fair approach? The public often appeals to justice in court, but judges deserve justice as well.
- Have you explained all this?
- Absolutely.
When the PIC (Public Integrity Council) made claims against me, I submitted all the explanations to the HQCJ, which had 16 members at the time. I was heard at the meeting, and the commission decided that everything was fine with me. This was called overcoming the negative opinion of the PIC and involved voting for at least 11 members.
As for Judge Kravchenko's integrity, he ended up with a fairly high score. Among the judges who took part in the competition, I think I was ranked fifth place among them.
But that was not all. Then the decision was made by the High Council of Justice. For the third time, for the whole world (because it was broadcast), I spoke about the land, the case of A.V. v. Ukraine, and answered all the questions.
And that was it. They say everything is fine, they hand it over to the president. The president has his own procedure. That's it - he is appointed and elected by the team.
So if we are talking about the legal framework, the majority of PIC members are lawyers. Do they understand all this? Yes, they do. But they don't want to adopt the rules. That is, because of the conclusion, which does not exist in the legal field, I have been talking about it and the land from time to time for six years.
By the way, there was an opportunity to appeal to the PIC. I did. Do you know how it ended? I still haven't received a response.
Now the HQCJ (High Qualification Commission of Judges) is conducting the qualification assessment, and then the judges will be selected. Therefore, it is very important that there are transparent, clear rules, it is important that everything happens according to the law.
- Apart from the land issue, what other questions did they ask you then?
- Regarding the ECHR (European Court of Human Rights) judgment passed 15 years ago. I was working at the Court of Appeal at the time. It was a sentence upheld against a person who was detained with six bags of cocaine in a nightclub. But initially, the case was opened as an administrative offense, because at that time there was a situation where an administrative protocol was drawn up first, and when the examination was already conducted and it was confirmed that it was indeed a drug, it was assessed to what extent the evidence collected in the administrative case could be used in the criminal case. And today the law provides for this.
The person mentioned above did not manage to avoid responsibility completely, but he was not imprisoned because his actions were not qualified as sales, although the amount of drugs indicated this.
However, the man's lawyers tried to review the case in the European Court of Human Rights. And, obviously, he was uncomfortable because he concealed his last name. And it was stated: "A.V. versus Ukraine".
I am a serving judge, I have tens of thousands of cases. And I had to not only recall a case that was heard 15 years ago, but also guess who this "A.V." refers to. And since I did not guess, I was told that I had not shown in my declaration of integrity that there was such a case.
- Did you not know about it at all?
- I did not know. I even thought at first that it was some kind of cassation case. Our representative was at the PIC meeting. When he returned, we searched everything.
- Have you thought about offering judges to take a polygraph voluntarily as Chief Justice of the Supreme Court? To remove all possible questions that arose in society after Kniazev's detention?
- When we held the competition for the positions of Supreme Court judges, a lot of attention was paid to the psychological test. It took place in three stages. The first was an IQ test. The second was answering 1,200 questions developed by psychologists, such as "Do you steal?" In this case, you could not say "no". Because they warned me that if I said no, they would expel me immediately because it's human nature. Although it was difficult for me, as a criminal court judge, to accept this. And it meant that you could take a piece of paper from work or make a copy on your work printer.
Every 50 points, the questions were repeated with a greater qualifying feature. And when you reached the 1000th, you already had a confession (smiles - author).
And if they had added some kind of device to these questions, I don't know what would have happened. But a person would have to make a choice whether he or she would do it or not. That is, we are talking about adopting rules.
As for the polygraph in general, I am probably more familiar with its work than others, because it has been used quite actively in criminal proceedings. In particular, after the annexation of Crimea and the events in the east, the military prosecutor's office bought a lot of them.
The first and foremost question is whether the polygraph can be fully trusted. No. Is it possible to deceive it? Yes.
And if the Criminal Code of Ukraine says that the prosecution cannot be based on doubts, then the question arises: why do you pursue something that is inherently questionable?
Moreover, I very quickly saw in the cases that when a polygraph was used, it scared me, because I thought that it meant there was no evidence. I think that when they try to do this, there are already problems in the case.
By the way, they tried to formalize the polygraph through a psychiatric examination. This is exactly what the Venice Commission's conclusion said. We also talked about this at the Supreme Court Plenum. This is already an experiment on a person. And in order to conduct it, there must be legal grounds. And it is impossible to make a decision based on, let's say, solely on public demand.
Many state institutions, such as the State Bureau of Investigation, NABU, and private companies, are actively using polygraph testing for their employees. I don't know if this has any effect. Some say it does, others say that nothing has changed at all. But I want to say something else. Judges entered the system under certain rules. And if judges do not feel protected in the legal field, they cannot be expected to deliver fair justice. Because these tools will be used by the authorities, one or the other, to make judges afraid, including this polygraph. Although, perhaps, over time, these devices will reach 100 percent reliability, just as genetic testing, which gives 99.9 percent results, once appeared.
"ALL MEMBERS OF THE GRAND CHAMBER WERE SEARCHED"
- Did the Supreme Court conduct any other investigative actions after Knyazev's detention?
- All the judges of the Grand Chamber were searched - in their offices and homes.
As far as I know from media reports, the investigation in this case has been completed and the defense has been given a limited period of time to familiarize itself with the materials. I think it will be submitted to the High Anti-Corruption Court soon. Of course, I am worried that there will be no wave of negativity and manipulations against the Supreme Court when it starts to be heard.
- For me, Kniazev's detention was a bit of a shock. I could not understand how a person holding such a position and receiving such a high salary could do what he was accused of.
- You should have seen me when it happened! My first thought was to leave immediately because I was so ashamed. If not for the feeling of what they would say: "It's definitely with him," my reaction would have been exactly the same.
- How many Supreme Court judges resigned during this full-scale phase of the war?
- We currently have 152 judges, but the HCJ has a letter of resignation from another judge. Kniazev is one of them. According to the staff list, there should be 200. That is, a quarter of the judges are missing.
- Is there a heavy workload for judges?
- In total, in 2023, the Supreme Court had approximately 101,000 cases pending: more than 83,000 cases were received during the year, and the rest were the balance of pending cases from 2022. However, it should be understood that each court (there are four in the Supreme Court) has its own specialization. The largest share of cases is administrative - more than 43 thousand cases.
Civil jurisdiction is second, with up to 20 thousand cases. War is war, but civil law relations in the country continue. People are suing and defending their positions.
There were also appeals to the Commercial Court of Cassation - almost 9,000.
As for criminal cases, approximately 10 thousand cases were under consideration. Of these, an average of 2,500-3,000 cassation appeals are considered per year. What about the rest? The problem is that not all courts are working. The occupied territories are a different story, we have changed the jurisdiction. But even in the non-occupied territories, according to the data provided by the Deputy Head of the HQCJ and the Head of the HCJ, 11 district courts have no judges. There are about forty courts with one judge each. And if a judge has already considered a motion for a preventive measure, he or she has no right to hear the case. And then these cases are transferred to other courts. If the proceedings are transferred within the district, they consider appeals. And if it's impossible to hear the case at the appeal level in the district, then we hear it. For the Criminal Court of Cassation as part of the Supreme Court, this means at least two thousand proceedings, within which we decide which court to transfer. Then there are various complaints and appeals.
- Are there any judges who have been taken prisoner? In general, in the system.
- Of the known cases, there is only one judge from Mariupol, Yuliia Matveeva, who returned from captivity in October 2022. But there are judges whose fate is unknown. Although there is no information that they are in captivity.
We have judges who are fighting. There are judges who have died. Dmytro Konstantinov, a judge of the Krasnohrad District Court of Kharkiv Region, was killed during a mine clearance while helping sappers. And the deputy chairman of the court in Chernihiv region, Liubov Kharechko, was shot by Russians. Not for being a judge. She was just getting into her car to evacuate, with her child and dog... This was at the beginning of the full-scale invasion of Russia. And in November 2023, a defender of Ukraine, the head of the Veselivskyi District Court of Zaporizhzhia region, Anatolii Nahornyi, was killed in the Kupiansk direction.
- In the first months of the invasion, there were queues at military commissariats, but now many people do not want to join the army, even sue, in particular because of the conclusions of the Military Qualification Commission. Do such cases reach the Supreme Court?
- There have already been the first cases, as the head of the Administrative Court of Cassation within the Supreme Court reported at the meeting. If they accumulate a bit, we will systematize them.
- There are currently two draft laws in the Verkhovna Rada to reboot the Grand Chamber of the Supreme Court. From what I have read in the media, I understand that you support one of these documents and this idea in general. Can you explain why do you support it in more detail?
- We have already talked about the shock that I and other judges experienced after Kniazev's detention. There was also anger that Kniazev had become the head of the court and led to this situation. Therefore, when I nominated my candidacy, I realized that I would have to explain again about those 9 hectares of land, but I was afraid of chaos in the court or that some person would come again, as they say, on a wave, who had no experience.
And there was one more thing. I made a lot of efforts to create the right atmosphere in the Criminal Court of Cassation as part of the Supreme Court. When it is free, according to the rules and fair. So when the situation with Kniazev happened and I was nominated at the meeting, my colleagues said: "Good, you talk about everything so well. Now we have a crisis. Now do something." Because when Kniazev was elected, they also nominated me, and I refused. But this time I agreed.
When I became the Chief Justice, I became an ex officio member of the Grand Chamber of the Supreme Court and realized that the credibility of the Supreme Court, and especially the Grand Chamber, had suffered very significant reputational losses due to the corruption scandal. At that time, I believed that a reboot of the Grand Chamber, during which the assembly of judges would elect other judges to the Grand Chamber, would help restore trust.
You know, if a draft law to reboot the Grand Chamber had appeared against that background, I would have looked at it completely differently. Because it would be an answer to the questions we are talking about. In particular, it would be a response to the public demand.
But the draft law appeared much later. We considered it at the Plenum because it concerns the judiciary. Therefore, what is written about Kravchenko in this context is definitely not true. Sure, I supported the draft law to a certain extent, but what we proposed was in a completely different plane than what was articulated in the media. Several judges from the Grand Chamber resigned after that. Most of them were about to expire, and now most members of the Grand Chamber have been re-elected. That is, there is no longer any need for a reboot, because the Grand Chamber has already been mostly renewed.
In addition, I repeat: the investigation does not have any claims against any of the judges. If there are integrity checks and the NACP, then let them check.
That is why I spoke at the Plenum in a completely different context. It is that there should be 200 judges on the staff, and now there are 150. Each court delegates five judges. In a little bit, we will have fewer judges in the Criminal Court of Cassation than in the Grand Chamber. Even though the Grand Chamber does not have such a workload. If we compare the situation at the beginning of the Grand Chamber's work and now, we have about 78% fewer cases. And we used to assign 21 people to it based on the number of cases we had before. That is why I supported the idea of reducing the number of judges. This is where I come in as a manager because I need to organize the work of all the courts.
Do you know how many cases I have as a judge of the criminal court in the Grand Chamber per year? One and a half.
And now for comparison. A judge of the Criminal Court of Cassation considers 300 cases, and a delegated judge considers one. But they emphasize that no, I also hear cases from other jurisdictions because I vote on everything. In fact, my vote is as important as anyone else's in any case. To vote, I need to prepare and know the practice of both the administrative court and the commercial and civil courts. It also takes time to study it. However, the workload compared to cassations is disproportionate.
- As international partners demand that corruption in the Supreme Court be eliminated, there are also proposals that a draft law should be passed that would allow for a new competition to the Supreme Court. How do you perceive such proposals?
- In 2016, when the Constitution of Ukraine was being amended regarding the judicial system, it was stated that the competition to the new Supreme Court was a one-time procedure.
However, we should not forget that a law has recently come into force, which gives me 20 days to enroll the judges of the Supreme Court of Ukraine, those who are still in office, in the Supreme Court. This law also decides the fate of judges of higher specialized courts, who have the right to apply to the HCJ for transfer to an appellate or local court. However, they resign.
Therefore, any new competitions or checks on Supreme Court judges pose significant threats to the independence of judges. We have the decisions of the Constitutional Court of Ukraine, the ECHR, and the conclusions of the Venice Commission. Failure to take into account the existing experience will obviously lead to the same problems that we are solving today in connection with the previous reform.
Does that means that those who remained from the former Supreme Court of Ukraine should be included in the staff of the current Supreme Court?
- Yes. This is because the Law of Ukraine "On the Judicial System and Status of Courts" was amended to implement the decision of the Constitutional Court of Ukraine and to take into account the ECHR judgment regarding the judges of the Supreme Court of Ukraine.
Do you know the price of this issue? Ukraine's huge reputational losses at the international level due to the ECHR judgment.
The next is the decision of the Constitutional Court of Ukraine at the national level, which recognized the liquidation of the Supreme Court of Ukraine as unconstitutional.
Judges of the Supreme Court of Ukraine had been working for six years, but they were not considering cases, and they were receiving their salaries.
When I became the Chief Justice, I was informed that UAH 200,000 was spent on liquidation procedures every day.
- What did these liquidation procedures involve?
- Payment of salaries. Due to the decision of the Constitutional Court of Ukraine, judges of the Supreme Court of Ukraine were not subject to dismissal. Now, on the basis of this law, we have to enroll the judges of the Supreme Court in the staff. And judges of higher specialized courts, as I said, will be assigned to the courts of appeal. A judge can choose any court of appeal, and he or she should be enrolled there without competition.
However, the law says that all this is done with the prospect of further evaluation. However, there is a tendency for resignations to be submitted.
However, the law says that all this is done with the prospect of further evaluation. Although there is a tendency for resignations to be submitted.
And now we have the same situation as we had six years ago. Do we need to step on the same rake again?
It is clear that when I see procedures that I, for example, cannot assess as fair, I will not try to go through them again and talk about 9 hectares of land for years to come. I mentioned 150 judges. Why do people leave? Because the work is very hard. And only a certain group of them are 65 years old. We had a judge who was just over 40 years old. She didn't work for a year and resigned.
That's why judges need to be protected, not just told which polygraph to use.
One more thing. We appealed to the Constitutional Court of Ukraine with an appeal that has not yet been considered. Do you remember when the issue of evaluating the High Council of Justice was raised? Members of the HCJ resigned, and at the beginning of the full-scale war we were left without a constitutional body. Because of this, it was impossible to bring a judge to justice, to authorize detention in case of a crime, not to mention all the appointment procedures.
And when the Plenum of the Supreme Court appealed to the Constitutional Court of Ukraine, we raised the issue that, given the provisions of the Constitution of Ukraine as amended in 2016, the evaluation could be conducted once. And the assessment of those judges who had already passed it and had to do it again after being elected to the HCJ was considered unconstitutional. We referred to the decision of the Constitutional Court of Ukraine regarding the Supreme Court of Ukraine.
There is a very high risk that most of these judges will resign, not wanting to refute groundless claims once again. I understand the consequences of this. The Supreme Court will not be able to properly fulfill its function.
- Kniazev has publicly stated that he sent a letter to the Security Service of Ukraine with a request to check the judges of the Supreme Court for Russian citizenship. Do you know the results of this check?
- As far as I know, there is no final answer from the Security Service of Ukraine on the verification of all judges of the Supreme Court.
- What do you think about the scandal with the Head of the High Qualification Commission of Judges Roman Ihnatov, who allegedly holds Russian citizenship? Ihnatov has already explained his position on this issue and publicly denied having Russian citizenship, but, as we know from open sources, the investigation by the SBI is still ongoing.
- Let the High Council of Justice decide, it is their competence. It's a shame that the HQCJ has just started working, we've been waiting for it for four years, and the procedures for judges have been blocked. And now we have this situation...
In any case, everything will continue to happen according to the law.
- The Kyiv District Administrative Court partially satisfied the claim of Bohdan Lviv, the former head of the Commercial Court of Cassation of the Supreme Court, for reinstatement as a judge and payment of salary "for the period of forced absence". Will you appeal this decision?
- Yes, the Supreme Court plans to appeal the decision of the Kyiv District Administrative Court. A detailed argumentation of our position will be set out in the appeal, which we are working on
Tetiana Bodnia, Censor.NET
