DEJURE Foundation Executive Director Mykhailo Zhernakov: "If things continue at this pace, just like now, and we are "hurtling" toward wall, then we’ll hurtle into it very quickly"
Why could the new bills on judicial reforms potentially worsen the progress already made in the development of courts and their independence? Why are citizens required to pay fees for complaints against judges, and under what conditions might they be unable to file such complaints? What role do international experts play in the selection commissions for appointing judges, and how does this affect the judicial system as a whole?
We discussed these and other issues related to judicial reform with Mykhailo Zhernakov, Executive Director of the DEJURE Foundation and Coordinator of the Public Integrity Council in 2019–2020.
UNFORTUNATELY, THE POLITICAL AUTHORITIES ARE INCREASINGLY UNDERMINING THE TOOL OF INVOLVING INTERNATIONAL EXPERTS IN SELECTION COMMISSIONS.
– In May, the Cabinet of Ministers approved three roadmaps as part of Ukraine’s negotiations for EU accession. One of them concerns the rule of law. Analyzing it, the Anti-Corruption Action Center and the DEJURE Foundation, which you lead, explicitly stated there is a "deep politicization" of the Ukrainian judiciary. In your view, is it possible to somehow overcome this?
– It is possible. Through systemic reforms, resetting key institutions, and ensuring their institutional independence. What does this mean? The top leadership of law enforcement agencies, the Prosecutor General’s Office, key courts, and major judicial institutions must be reset at least several times and selected anew according to new standards. Today, this means involving international experts. There is no other recipe. Everything else is just window dressing. And those 529 measures… There could be 1,529, 5,529… None of it will work if we don’t have the proper foundation. The Supreme Court, the Prosecutor General’s Office, the State Bureau of Investigations, the Economic Security Bureau. You can see what is happening now with the ESB. If they can’t push through their candidate, at least they try to block the process. Even though the country risks losing $5 billion in support due to failure to meet IMF benchmarks.
It’s very much like what happened with the competition for the Specialized Anti-Corruption Prosecutor’s Office.
Overall, unfortunately, the political authorities are increasingly undermining the tool of involving international experts in selection commissions. For example, in the Public Council of International Experts participating in the selection procedures for judges of the High Anti-Corruption Court, all six members are international experts. In the commissions for selecting members of the High Qualification Commission of Judges and the High Council of Justice, the ratio is three to three, with the decisive vote resting with the international experts.
When it came to the Constitutional Court, they spent a year trying to confuse the EU, the Venice Commission, and us. They even attempted to reduce the number of international experts and dilute their role. Thank God they didn’t succeed — the three-to-three balance was maintained, and the decisive vote remained with the international experts. But now, those selected by the Advisory Expert Group have not been appointed by either the President or the Verkhovna Rada for over three months.
Next is the competition for the new administrative court. It will be conducted by the High Qualification Commission of Judges (HQCJ) with the participation of the Expert Council. The council will include three representatives from the Council of Judges and three more from international partners.
At the same time, there are no problems at all with the Public Council of International Experts (PCIE), where the majority are international members. For some reason, issues only arise with experts or commission members delegated by the government. So, is the problem with the international experts themselves or with the government’s willingness to conduct an independent competition?
– Do you think this competition will proceed further? And how might the international members on the commission influence this process?
– I have no idea. Much depends not only on the formal rules delegated to the commission members from international organizations but also on how our government is treated and what message our international partners want to convey. By that, I mean the countries that delegated them.
Who has pushed our government to carry out reforms, if we talk broadly about international partners? The United States of America, the European Union, and the International Monetary Fund.
The US has withdrawn from this process. The IMF has its own narrow focus, and the situation in the US also affects them. Only the EU remains. But the EU is overly optimistic and weak in its communication methods with our authorities when defending reforms. Therefore, our government clearly saw this as an opportunity to do whatever it wants, because no one will say a harsh word to them.
For various reasons, the EU seems willing to help Ukraine by essentially saying, "We can't do much militarily, so at least let's not demand reforms." Neither approach is effective. If things continue at this pace, and we are "hurtling" toward a wall, we will hurtle into it very quickly.
That is why we, as the people of Ukraine, need to come together, along with our international partners. As a country, we are becoming one of the more mature players on the international stage, but so far, this is not fully reflected in the actions of our government. Therefore, as a society, we must mobilize to support reforms, and our international partners must assist us in democratizing, or else a very grim scenario awaits us.
– How do you feel about the claim that "we need to avoid external control," which is sometimes voiced regarding the involvement of international experts in certain selection procedures?
– Who exactly voices these claims? Could you specify?
– I see similar statements occasionally on Facebook feeds. They are phrased differently but boil down to the same idea. For example, from former prosecutors who became lawyers. So, not politicians.
– That’s a very specific sample. Regarding that claim, it is mostly voiced by one category of people: primarily Russian agents, whether consciously or unconsciously. These could be individuals directly working for Russia, including Putin himself. He voiced this claim in 2022 in his address preceding the full-scale invasion. In it, he explicitly named institutions — the High Council of Justice, the High Qualification Commission of Judges, the Anti-Corruption Court, the NABU, etc. This detachment from the Soviet legacy and Russian influence personally irritates him.
The second category of people voicing this claim is direct Russian agents. There was a compilation about external control made a few years ago, if you recall.
– I don't remember.
– It was compiled from various broadcasts and speeches. In particular, Medvedchuk’s organization pushed this narrative.
And the third category consists of our own Ukrainian corrupt officials who are not necessarily recruited by the FSB or Russian structures but effectively play into their hands. They oppose democratization here, genuine competitions, and the renewal of the judiciary, prosecution, and other bodies. They may be conscious or unconscious actors, but they fail to carry out their corrupt schemes when international experts are part of the commissions. It is difficult to push someone through when the person has authority, cares about their reputation, and cannot be intimidated or bribed. That is why this issue is so painful for both Putin and his agents here, and precisely why we must cling to it for as long as possible, at least until we have rebooted every institution once or twice, until the commission members delegated by our government can do their work with the same competence and independence as the international experts.
This year, at our request, sociologists conducted a public opinion survey. It showed that 56 percent of Ukrainian citizens favor having judges selected by independent international experts, while nearly half as many, 29 percent, support involving Ukrainian judges and officials in the work of the commissions. And it is obvious that the participation of international experts on these commissions does not diminish our sovereignty; on the contrary, (it strengthens it - ed. note).
– You have repeatedly noted that the mandates of international experts in some commissions are expiring, and so far nothing has been done to extend them. What exactly needs to be done, and why, in your opinion, is this not happening?
– Why this is not happening is a question for the authorities. Whether it will be extended depends on two main actors. First, the people of Ukraine. If we unite and demand this, the authorities will act. I understand that everyone is tired, sometimes demotivated, and that we have many other matters to attend to during the war. But this is a key issue that helps transform us into the kind of country we are currently fighting for and do not want to lose to Russia.
Second, it is the EU and its member states. If they want to see democracy among themselves, they need to demand this now, no matter how difficult their conversations with our government might be. At least until we build up most of the key institutions functioning in Ukraine. If this is abandoned halfway now, everything will revert to the Yanukovych era in an instant.
– One of the institutions rebooted with the participation of international experts is the High Qualification Commission of Judges. However, we have already witnessed multiple scandals surrounding this body and the individuals elected to the commission. How do you assess these events and the overall performance of the commission in its current composition? Don’t you feel that despite the careful formation of the commission and international assistance, this is the result we got?
– And what exactly did we get, pardon me? Do you believe that if the unreformed "Tatarov-style" State Bureau of Investigations attacks an institution, it is controlled? Or could it be the opposite?
I have never seen the SBI attack the Prosecutor General’s Office, the National Police, or other bodies that, shall we say, do not enjoy strong political independence.
And then, suddenly, just days before, the reformed High Qualification Commission of Judges, with international participation, summoned the head of the Pecherskyi District Court of Kyiv, Judge Tsarevych, along with seven judges from the dissolved Kyiv District Administrative Court (KDAC), since judges remain judges nonetheless, to interviews at the HQCJ premises. Meanwhile, the State Bureau of Investigations appeared both at the HQCJ offices and at the home of the commission’s deputy chair with a simple message: "Who do you think you are to do this?" This is a vivid indicator of how truly independent the institution is and how close the HQCJ has come to cleansing the "Augie’s stables."
There are several criminal cases in which the State Bureau of Investigations is currently approaching the High Qualification Commission of Judges, based on submissions from People's Deputy Buzhanskyi, Judge Tsarevych, and others. We published a report explaining what these cases are about and highlighting that the same investigator is involved in all of them.
Yes, things are not simple within the current HQCJ. But, agree that everything was straightforward and unequivocal in the previous commission. The results are evident, so to speak, on the scoreboard — both regarding the dismissal of as many as 15 judges out of 3,000 during qualification assessments and concerning the composition of the Supreme Court, which they selected for us.
– However, according to open sources, including statements from the State Bureau of Investigations, a search was conducted at the deputy chair’s residence "with the aim of uncovering evidence that may indicate deliberate false testimony in favor of the former judge of the Makariv District Court of Kyiv region." As reported by "Slidstvo.info," this concerns the case of Judge Tandyr. What does politics or anything else have to do with this?
– Indeed, they came to him in the Tandyr case. This is a tactically smart move on their part. But this is not the only criminal proceeding with which they are "terrorizing" the HQCJ and its members. And this is a message to everyone around.
Moreover, in the Tandyr case, he gave testimony a long time ago. The HQCJ officially and publicly stated that this is pressure, that there were no grounds for the searches, that all testimonies have been provided, and that the deputy chair is cooperating with the investigation. In other words, this is blatant political pressure. This is the position of the HQCJ. Why, even if there were grounds to talk about this case, did they come not a year ago when investigative actions were carried out and testimonies given, but this year, directly before the judges’ qualification assessments I mentioned?
I want to highlight another important nuance. The High Council of Justice in its current composition, dismissed judges Tandyr, Kniazev, and Vovk. However, Denys Maslov, Chair of the Verkhovna Rada Committee on Legal Policy, has registered a draft law that effectively kills disciplinary proceedings against judges. Had the rules outlined in it existed, they would have made it impossible to dismiss Tandyr, Kniazev, Vovk, and many others who were dismissed.
Let me return to where we began, EU integration. Of the seven benchmarks that earned us candidate status, the first three concern these institutions: the Constitutional Court, the HCJ, and the HQCJ. What is happening around them now? Either there is an attack, as with the HQCJ, or neglect, as with the Constitutional Court, while everyone waits to hear something about international experts as a tool. Perhaps they will even restart the competition altogether because some candidates seem too independent. As for the HCJ, the tactic is different: simply disable the tool, and once the body is left with a non-functional mechanism, it does whatever it wants.
– I constantly follow developments in the United States, focusing on how the courts respond, since many high-profile issues are transferred. They issue rulings regardless of the personalities involved. Is it realistic to build such a judicial system here, so that our judges also feel fully independent and protected, unaffected by any personalities or potential pressure?
– Courts like that already operate here. Chief among them is the High Anti-Corruption Court, along with the other two anti-corruption bodies — NABU and SAPO. Let me remind you that the HACC has rendered more than 200 decisions against figures from both the previous and the current administrations; many of them had been untouchable before.
And it turns out we do not need a judiciary that has been in place for centuries, nor Martians from Mars to build one for us. All that is required is a proper system for selecting judges. What is more, the judiciary is already beginning to eject representatives of the old corrupt elites.
– HACC is not as burdened with criminal proceedings as the district courts, which is why hearings there are scheduled every few days rather than every few months.
– And thank God. They wanted to overwhelm the HACC with petty cases to prevent them from being able to consider criminal cases and pass sentences promptly enough. Because one of the tactics is delay, which is used to achieve impunity. Although lawyers still try to use it when there are five of them in one case and they take turns being ill. The hearings are forced to be postponed, it is not known when everything will be completed, and the statute of limitations for bringing to criminal responsibility will expire. Therefore, it is necessary to amend the procedural legislation and help resolve this issue. But the HACC was specially designed so that it has a limited number of cases in order to at least have a chance to end them with verdicts.
"IF EVERY ONE OF OUR COMPLAINTS ENDED WITH THE DISMISSAL OF A JUDGE OR SERIOUS PUNISHMENT, WE WOULDN’T HAVE ANYTHING TO TALK ABOUT NOW."
– After Portnov’s murder, the issue of possible influence over the courts has intensified. Do you know how the judicial system has reacted to this event, so to speak, from the inside? Have you been in contact with judges regarding this?
– The judicial system is, let’s say, heterogeneous. Many may have sighed with relief, while others reacted differently. You’ve probably read about the "orphaned" Pecherskyi Court? Or about the liquidated KDAC? The KDAC has indeed been liquidated, but its judges have not yet been dismissed, except for Vovk and a few others. They still have chances to appear in some other courts. Especially if we see that the HQCJ, which is also responsible for transferring judges, gets "hacked" by a corrupt judicial "corporation."
I don’t have a comprehensive overview—I don’t personally know all several thousand judges and haven’t spoken to all of them—but I’ve heard that some still see him as a "founding father" figure. Overall, sentiments vary.
Many ask me: what has changed? Nothing has changed because judges will find themselves a new Portnov and, to some extent, already have, in the persons whose names we know very well.
Therefore, Portnov, as a collective phenomenon or as a general method of control, will not disappear until we fill the system itself with people for whom he is a character from a book, not a "highly respected Andrey Vladimirovich."
– Today, many bills concerning the justice sector are being proposed. You specifically mentioned the bill related to disciplinary proceedings. In your commentary on this document, you wrote that it abolishes qualification assessment as a form of punishment. In other words, it will no longer lead to dismissal, if I understood you correctly. So why conduct it at all?
– What game are the authorities trying to play, and what game are their European partners allowing them to play? The imitation game. The same name as the famous film The Imitation Game. This is what Poroshenko played and brought the country to the point where we lost a historic chance for reforms after the Revolution of Dignity. When they imitated judicial reform. What did that give the government then? The ability to say: look, we are implementing it, you just have to wait a bit longer, but the process is underway. Look, we are re-forming the Supreme Court, we are checking all judges. Until everyone realized that, excuse me, they were all "fooled."
They’re trying to do the same thing now. Up to a certain point—until it became a real problem for the management on Bankova Street—they played the game and showed, "Look, we’re moving forward." But when it got painful enough that key people, for example, from the Pecherskyi Court, were about to be dismissed, the old system, represented by the SBI, began attacking the new system, represented by the HQCJ, which is genuinely fighting the old system.
Now the government needs to keep showing that they are making some changes, even if only formally "ticking boxes" in all these documents. At the same time, they want to maintain manual control over the courts, law enforcement agencies, and so on. And where will this lead? To no real integration in the end, and the rollback we’re talking about will become obvious to everyone within just a few months. Even if we don’t write about it, it will show from how the courts operate, from what doesn’t work. And if it doesn’t make it into this autumn’s report, it certainly will in the next one. And there will be no further progress toward the EU.
– Let’s return to the issue of qualification assessment.
– Why pretend we’re doing something when we’re actually doing nothing? It’s to sell yet another set of changes, another rollback—like with European integration—and to say that it’s not really working yet because we still need to fine-tune it, it has to comply with European standards, and you understand that judges can’t just be dismissed…
This is done to halt the cleansing process but present it as European integration.
– I was surprised by the provision that those who repeatedly file disciplinary complaints against judges may be required to pay a fee of 30,000 hryvnias. What is your take on this?
– This is, among other things, a message to us. We submit hundreds of complaints, leading to several dozen judges being held accountable, including dismissals.
Regarding this provision, if someone files a complaint more than once within a year, that person can be considered an abuser. The law grants every citizen the right to appeal to the HCJ, and citizens exercise this right. But here comes the catch: our goal is, of course, the cleansing of the judiciary, yet if you file more than one complaint in a year, you’ll essentially have to pay a hidden fine. There’s no other way to read it.
– But it is specified that this applies to individuals who, within a year, have had previous complaints dismissed or returned. Perhaps there really are people abusing this right?
– If every complaint we filed resulted in a judge’s dismissal or serious sanction, we wouldn’t even be having this conversation now. Then the system would definitely work like clockwork.
There is still a problem, even with the current High Council of Justice, holding judges accountable for offenses like drunk driving or other violations. Some things are overlooked, and not every complaint ends in success. This still needs to be fought for. And if this draft law is adopted, then it will be enough to dismiss just one complaint against a judge. When the person files a new one, they will be labeled a vexatious complainant due to the lack of a 100% success rate.
This is the "January 16 laws" in a light version — and under the guise of European integration. That’s what these proposals are about.
– Who do you think will be able to afford filing complaints with the High Council of Justice if this provision is adopted?
– No one. It’s the death of the instrument as such.
– You often criticize the Supreme Court and insist on its cleansing. The Supreme Court claims that its members have passed a competition and integrity checks. Moreover, the NACP now conducts checks, and they don’t see the need for further measures. The court’s chair has voiced this position as well. How do you view this cleansing or "reboot"? What needs to be done for us to finally say that all judges are good and no further action is required?
– There will never be all good judges. This is a well-known rhetorical tactic used when there are no real arguments — they say something like: we are radicals wanting something idealistic and maximalist. No. We want what works, at least minimally. Let’s say at least half of the judges plus one judge of the Supreme Court, are those against whom there are no serious complaints. Right now, they are a minority. The truly progressive ones are less than 20%.
The heads of the cassation courts, both at their inception and now, are mostly bosses of the judiciary from the Yanukovych era, if not earlier, from Kuchma’s time. The same Kravchenko you mentioned, who once released Gongadze’s murderer, Pukach, who then remained at large for nine more years.
Let’s not forget Bohdan Lvov. He passed all checks with flying colors, but then the story about his Russian passport emerged. Or Valentyna Symonenko, who also passed all checks and blocked judicial reform while serving as Chair of the Council of Judges. At the time, we pointed out that she had an individual tax number issued in occupied Sevastopol, where her sister worked in the occupation administration, and that she possessed a Russian passport. We were told we didn’t understand anything. But after her resignation, journalists found her Russian passport. We also had negative information on Knyazev in the Public Integrity Council (PIC), which we provided. This is a public document available on the PIC website.
How should the verification process take place? It’s quite simple. The law provides for a tool called the integrity declaration. But the law needs to be amended slightly to make this verification effective. First, this tool should apply throughout a judge’s entire career, not just their last year. Second, commissions with international experts should be given the ability to conduct these checks. So that later the High Council of Justice and the High Qualification Commission of Judges don’t just tell us everything is fine and let them continue working.
And what is the government doing? It is submitting a draft law. Although it is not as "empty" as that of the deputies who registered an alternative and voted for it in the first reading, which practically doesn’t mention the Supreme Court at all. In other words, not just a mere imitation but a completely empty version, leaving it unclear how to proceed to the second reading.
– Do you support the idea of establishing military courts? Although the authorities have not been very active in communicating on this topic, the number of cases involving military personnel is increasing, and it is clear that there is societal demand for such courts.
– The question is what we mean by military courts. If we mean, for example, a category of judges who are familiar with the military code, possibly have service experience, and are knowledgeable enough to understand and make fair decisions, then definitely yes. As with any specialized category, specific knowledge is required. Perhaps preference should be given to those who truly have military service experience but are also career lawyers.
However, under no circumstances should this be a repeat of what existed before. When military judges were officers in uniform, brought up to strictly follow orders. That is the exact opposite of what a judge should be. A judge must be raised in an environment of academic freedom and guaranteed independence.
Tetiana Bodnia, Censor.NET
