Veronika Kreidenkova, co-coordinator of Public Integrity Council: We cannot work properly until Council resolves issue of access to information on judges
After the MPs refused to amend the legislation to give the Public Integrity Council full access to judicial dossiers with the ability to process this information, they stated that they could not work efficiently and quickly, and this would affect the competitive selection of candidates for the positions of judges of appellate courts, which is conducted by the High Qualification Commission of Judges with the participation of representatives of NGOs.
We talked to Veronika Kreidenkova, co-coordinator of the Public Integrity Council and advocacy manager of the DEJURE Foundation, about whether this could stop the competition, how it will affect the qualification assessment of judges for their suitability for their positions, and what information is currently available to determine whether judges are honest.
- The Public Integrity Council has announced that it plans to slow down its participation in the qualification assessment of courts. And that this may affect the timing of the competition to the courts of appeal. What was the reason for this decision?
- It is critically important for us that the evaluation is of high quality. In order to make it qualitative, we must have complete information about judges and access to it. A year ago, the law stipulated that we have full access to judges' dossiers. That is, to tax records, property, border crossings, etc. But there is one caveat as to how this full access is implemented.
We have no right to work with this information. That is, for example, to add up the amount of income of judges even on a calculator, to copy the dates on which some of them crossed the border with the Russian Federation or travelled to the temporarily occupied territories, because we only have the right to view this information, not to process it. And it is implemented in such a way that it can only be done in the premises of the High Qualification Commission of Judges. During business hours and on a computer that is disconnected from the Internet. At the same time, you cannot copy the information because you are not allowed to. Roughly speaking, you are not even allowed to make notes on this information. It is obvious that you cannot work in such conditions.
In addition, there is another problem. Some HQCJ members do not fill in judicial dossiers with enough materials. We found that at least six dossiers lacked data on the judge's income. Although this is the basic information you need to have to evaluate a judge. Let me give you an example. Judge Antonina Kvasha from the Shevchenkivskyi District Court of Kyiv. In this case, there was a preliminary conclusion of the PIC for 2019, which was basically based on the issue of property. She and her husband did not have enough money to buy an apartment and make normal living expenses for a year. But the speaker from the HQCJ, Ms Volkova, apparently decided that she did not need information about the judge's income to consider this candidate.
So for these two reasons, we cannot work properly. Until the parliament resolves the issue of how we get access to information about judges, we cannot ensure the quality of the assessment and the appropriate pace.
- Are we talking about a draft law that should regulate this issue?
- Recently, there was a draft law that addressed this issue for the Public Council of International Experts. It contained provisions that would have helped both the PCIE and the PIC to solve this problem at the same time, because we have the same regulation of this issue. Unfortunately, these amendments to the current law were rejected. Thus, the Parliament froze the situation.
- What will happen next? Can this stop the competition?
- We have no plans to stop. There is still time before the interviews for the competition to the appellate courts begin. We hope this problematic situation will be resolved. We are negotiating with stakeholders. But if we don't have access to information in an adequate form at all, i.e., so that we can work with it and not just look at it, we will not be able to ensure our quality participation.
- And how was this issue resolved earlier by those who worked in the previous members of the Public Integrity Council? And you have somehow cooperated with the HQCJ until now.
- Previously, the National Anti-Corruption Bureau and the National Agency for the Prevention of Corruption provided the PIC and HQCJ with information that we could work with directly. This is official information that is part of the dossier, but we received it in an adequate form. And we worked with it accordingly.
However, due to the heavy workload of the NACP and the fact that the HQCJ has started to develop its own capacities to receive extracts from state registers, the situation has changed a bit. We now have to get everything directly from the High Qualification Commission of Judges. And unfortunately, this is how the process of access to information is currently organised there. This is a new problem for this composition.
- Now the dossier no longer contains the information previously provided by NABU and NACP?
- Basically, the dossier should contain information from the High Qualification Commission of Judges, which it collects itself.
- That is, the HQCJ has received additional powers, while the PIC has no such powers?
- Yes, we only have access to open registers. For example, the State Register of Real Property Rights. Information about taxes, border crossings, powers of attorney and several other important things are in closed registers. We don't even have the right to access them by law. And it is possible to analyse a candidate only when you have all this information together.
- Online access to judicial dossiers and the ability to copy information is denied, citing martial law or other reasons?
- They do not, referring to the HQCJ regulations and the law. Because the law is rather vague, and one can interpret in different ways what kind of access is provided for the Public Integrity Council. And the law does not clearly define what full access is. This is already defined in the HQCJ documents. Currently, it is defined only as the right to review. And without the right to copy information.
- If the Verkhovna Rada were to adopt amendments to the law, what would it do?
- This would give us the opportunity to continue our work and conduct qualification assessments. We also don't want to submit conclusions about judges based on complete assumptions. This is not what the High Qualification Commission of Judges and society expect from us. We have to justify our doubts with something. As long as we do not have full access to information, we do not have this opportunity.
- And how do you protect information about judges if you do get the opportunity to process it?
- When a PIC member gets access to a judge's dossier, he or she signs an undertaking that he or she will act within the law and is aware of his or her responsibility for disseminating such information. We agree to this because we understand that we are dealing with quite sensitive things.
- What is currently happening with the qualification assessment of judges for their suitability for the position, which was suspended due to the liquidation of the High Qualification Commission of Judges?
- It is ongoing. For example, just recently, the evaluation of two judges resulted in recommendations for dismissal.
- Is this process also affected by the fact that access to judges' files is currently difficult?
- Yes, it slows it down a lot.
- How many judges are to undergo qualification assessment this year?
- It's hard to say. The schedule and workload were planned in relation to how much work we could do. And if there is not enough information in the judges' dossiers or we cannot get adequate access to it and work with it properly, then such judges are generally not included in the schedule.
At the beginning of the qualification assessment, the HQCJ discussed the number of 100 judges. But it was also quite approximate. Because you cannot put a clear figure on the workload until you know how long this work takes.
- The PIC members were to be involved in the qualification of candidates for the positions of judges of the High Anti-Corruption Court. When will it happen?
- After the term of office of the Public Council of International Experts expires. It consists of six international experts. Their term of office was recently extended by the Parliament for 18 months.
-When this issue was discussed, Deputy Head of the Presidential Office Iryna Mudra noted that there are some "debatable issues" in the work of the Public Integrity Council, but it must become an effective structure to meet the challenges it will face in the future. What are the issues that are still debatable and what needs to be changed to make the Council work more effectively?
- I think it is precisely the ability to analyse and process information on a larger number of judges than we currently have for qualification assessment per month. As I said, this capacity can be increased through changes in the law.
It would also be important to provide us with the opportunity, as our colleagues from the competition commissions were given, to hire assistants with international technical assistance who would also have the right to process this information. This would definitely increase the PIC's capacity and institutionalise it more.
This can be done by lawyers, big data analysts. In other words, it should be decided depending on the tasks to be analysed. Do you remember the situation with the Bilhorod-Dnistrovskyi court, which was described by NGL in its publication "Dad for the time of martial law"? It was thanks to open data that they exposed the scheme of how the court allowed men to evade mobilisation.
- Analysing judges' files during the full-scale war, what did you see?
- For some people, nothing has changed. For example, one of the judges who was recently dismissed by the High Council of Justice has travelled to the annexed Crimea and St Petersburg many times since 2014. She was asked about this during the interview, because we have been at war since 2014. And the interview was conducted in the context of a full-scale invasion. And answering the question about her trips to Crimea, she said that she had travelled, but it was not the fault of the judges that they had to cross the border in this way, but of the state authorities, because they did not ensure the integrity of the borders.
- Did she cross the border before Russia's full-scale invasion?
- Yes. And that's how she explained why she did it.
- Do you pay attention to the possible presence of Russian passports when analysing dossiers? Because back in 2022, after the scandal with Bohdan Lviv, the then Chief Justice of the Supreme Court Vsevolod Kniazev said in an interview with our publication that he had asked the Security Service of Ukraine to check all the judges of this court for Russian citizenship. We have not been able to find out how the check ended. However, the issue of the citizenship of another state among judges in the context of war is quite acute. Did the PIC not ask for such a check of judges undergoing qualification assessment? Or do you not raise this issue with the state authorities?
- We do not. But when there was a situation with Bohdan Lviv, we, on behalf of the DEJURE Foundation, asked the SSU to check all the judges of the Supreme Court. The SSU's capacity did not allow them to check 160 people. Therefore, when it comes to about 1700 people, it is clear that this is impossible.
On the other hand, we are trying to find out it on our own, based on the information we can obtain. For example, according to the Public Integrity Council, a person who has a full surname and patronymic with Judge Bila-Kyselova, who was dismissed by the High Council of Justice, has a Russian taxpayer identification number.
- How often do you see in judges' files that their income does not correspond to their expenses? Can you compare how they have changed over the years?
- We are fighting for the opportunity to compare. We see quite often when the acquired property does not correlate with the judge's salary. But here we also need to understand that judges are still lawyers and educated people. Therefore, situations when you look at property acquired in a year when there was no income for it are now rare. At the same time, there are stories when a judge uses a car that was not purchased by him, but by his niece. And this niece is very young and did not have the income to buy an expensive car, so she allegedly took the money from her boyfriend.
The judge received two rulings on administrative offences while using this car. That is, such stories are more complicated. Here we have to establish whether there is evidence that the judge used the car. We need to look for arguments that will indicate that this is his car. And that it was only "registered" to his niece.
The stories have now become much more complex in the context of where to look for real property.
- Members of the previous HQCJ said that judges who could not explain the origin of their wealth said that they had been given the money by their parents, who used to grow strawberries and sell them. That's how they were saving money, they said. Do they say that now?
- In some places, they also talk about their parents, which one of them earned money and how.
- What percentage of negative PIC opinions are taken into account and become one of the reasons for dismissal of judges, and how many are re-voted and judges are retained?
- About 40% end with the HQCJ submitting a motion for dismissal. The decision is made by the High Council of Justice.
- In the summer, the Grand Chamber of the Supreme Court published a decision in the case of Vitalii Usatyi, a judge of the Economic Court of Kharkiv Region. He appealed to the Supreme Court against the procedure of qualification assessment against him. And when the Grand Chamber declared it invalid, DEJURE Foundation made a statement that this decision invalidated the qualification of 180 dishonest judges with conclusions from the Public Integrity Council, and this allows them to remain in office. Thus, the Grand Chamber has jeopardised the purification of the judiciary. The HQCJ and the High Council of Justice did not immediately react. What are the consequences of all this now?
- Now the situation has changed a little, as the first judges from this list of 180 have already appeared in the schedule for qualification assessment. This essentially means that the HQCJ has decided on its position and is still following adequate practice and the law.
As for the High Council of Justice, we have been waiting for them to react for quite some time and have been calling for them to react. And recently, the High Council of Justice reviewed Judge Otrosh, who is on the list of these 180, and dismissed her. Therefore, we can say that the HCJ also took the "bright side" of this story and decided to review such judges. This is what we actually wanted to achieve.
- The scandal around the previous HQCJ was caused, among other things, by the qualifications of judges from the notorious DACK. The court has been liquidated. What is the fate of these judges? Are they being qualified?
- The qualification assessment consists of two stages: an exam and an interview. DACK judges can be divided into two groups according to these stages. There were those who, before the HQCJ was dissolved, came to the exam, passed it and waited for the interview stage. But they were in the minority. There was also a well-known story about other judges - when several dozen people fell ill twice at the same time. They never passed the exam during the work of the previous HQCJ.
Therefore, the first group of judges is already being interviewed, the rest, as far as I know, have passed the exam and we can expect them to appear in the interview schedule as well.
- Even before the outbreak of the full-scale war, people could not get justice for years because of the staff shortage in the courts. How is the staffing problem being solved now?
- The problem with people in the judicial system is still serious. It needs to be solved because any system has a safety margin. And if people just quit and no new ones come in, the system will sooner or later stop functioning. But the question is how many capable, competent and honest lawyers there are in the country to fill these vacancies. Unfortunately, we also see huge problems with the quality of legal education.
- Is it impossible to fill vacancies with judges who have left the occupied territories?
- Some of them are listed as business travellers and are considering cases. But this is not so many people to fill a huge number of vacancies.
The Commission plans to announce a competition for the position of first instance judges. We are talking about more than a thousand vacancies. So we can only hope that there will be enough worthy candidates.
Tetiana Bodnia, "Censor.NET"
