Renewing the Supreme Court: Integrity of Judges and the Court
Introduction
This policy brief discusses the urgent need for the renewal of the Supreme Court in response to a corruption scandal involving the former President of the Supreme Court and the election of a judge with low integrity as the new President. The brief recommends a comprehensive approach involving the vetting of sitting judges based on declarations of integrity and the selection of new judges with the participation of international experts and civil society representatives. It highlights the importance of aligning with the European Commission’s recommendations, emphasising the need to avoid models that enable political control over the Grand Chamber, which could undermine the court’s integrity. The brief underscores the potentially transformative impact of implementing the recommended model on Ukraine’s judicial system, urging stakeholders and decision-makers to take a resolute stance in supporting these reforms.
Policy brief: Renewal of the Supreme Court
The corruption scandal involving the former President of the Supreme Court (SC), Vsevolod Knyazev, and the election of Stanislav Kravchenko, a judge of low integrity, to the position of new President of the SC through a vote of 108 SC judges underscored the necessity of the thorough renewal of the court.
The prior endeavour to reform the SC in 2017-2018 was unsuccessful. During that period, it faced significant criticism and protests from civil society, which raised concerns[1] about flaws in the process, lack of transparency, and manipulations during the selection of judges. In particular, roughly 25% of judges who were appointed to the court previously received a negative opinion from the Public Integrity Council (PIC), and for another roughly 50%, the PIC provided information that could indicate low integrity. Despite these facts, the government and international partners, who had invested significant resources in the process by that time, largely disregarded civil society’s apprehensions and hailed the reform as a success. Recent developments show that this was a big overestimation, and it is necessary to guarantee the Court’s integrity.
Furthermore, on November 8, the European Commission recommended that the Council of the European Union start the process of negotiations on Ukraine’s accession to the European Union. Notably, in its report[2], the European Commission recommends that effective integrity tools should be used to address corruption in the Supreme Court and other courts, including through the verification of integrity and asset declarations of judges, disciplinary framework and improved selection procedures with a strong focus on integrity and professional ethics.
What actions are necessary?
The process of renewing the Supreme Court should entail vetting sitting judges and the selection of new judges with the participation of international experts and civil society representatives. Such a model was proposed by the NGOs engaged in rule of law reform in Ukraine and supported by many progressive judges whose integrity is not doubted.
The European Commission also recommends using integrity and property declarations, among other instruments, in the aforementioned report.[3]
Additionally, the Venice Commission, in its opinion CDL-AD(2020)039 regarding the selection of judges for the Constitutional Court of Ukraine, recommended[4] involving international experts and civil society representatives in the selection of judges.
1. Vetting of current judges of the Supreme Court
To ascertain the appropriate individuals for accountability and the corresponding mechanism, the vetting of judges can be done on the basis of checking declarations of integrity, which were introduced in 2016. Every year, judges submit a declaration of integrity, in which they must declare that they have correctly indicated the information about the positions of relatives in the declaration of family ties, that the lifestyle of the judge and his family members corresponds to the declared income, that the judge has properly reported on interference in his professional activity, etc. The High Qualification Commission of Judges (HQCJ) retains the authority to check these declarations. Should concerns persist, the matter is referred to the High Council of Justice (HCJ) for initiating disciplinary proceedings and removing a judge from the position (discretion of the HCJ may be limited here to prevent overruling of HQCJ’s decisions). The Public Integrity Council (PIC) should participate in the process as recommended by the Venice Commission[5]in 2019, in the opinion CDL AD(2019)027.
Checking of declarations of integrity is already mandated by existing legislation, a practice to which judges are accustomed and express no objections. Consequently, this assessment of declarations of integrity does not constitute an additional vetting or reboot of the institution. Thus, it is the least problematic, the most straightforward, and sufficiently effective approach for addressing the Supreme Court’s renewal. Notably, this check may even be carried out by a decision of the HQCJ; however, a special law may still be needed to streamline and guarantee the quality of the process. This can pave the way for a significant renewal of the SC.
2. Selection of new judges for the Supreme Court
Not less important to the successful renewal of the institution is the selection of judges for the vacant Supreme Court positions, both existing and prospective. The participation of the Public Council of International Experts (PCIE) that, based on the previous recommendations of the Venice Commission, helped select the High Anti-corruption Court, alongside the recently established PIC, is indispensable. We believe that this selection model will enable the replication of the successful selection of the High Anti-Corruption Court judges and facilitate the appointment of judges of high integrity to the SC.
Furthermore, involving the PCIE in judicial selection demonstrates significantly better results than the formula ofselection commissions[6]consisting of three Ukrainian judges and three international experts. Recent selection processes have revealed that judges of low integrity are frequently appointed to such commissions. Consequently, this consistently leads to a significant deterioration in the overall outcome of the selection process. Therefore, it is recommended that the PCIE model, comprised solely of six international experts, be consistently employed in all forthcoming judicial selection and vetting procedures until public confidence in the judiciary is restored.
There are currently roughly 50 vacancies in the Supreme Court. At this stage, lowering the number of Supreme Court judges should be precluded, as the workload is still considerable, and this may hinder the prospect of renewal. However, at a later stage, the number of Supreme Court judges may still be reduced depending on how many judges of low integrity are dismissed through vetting and disciplinary procedures. It is imperative to underscore that the current group of approximately 40 judges, for whom no integrity concerns have been raised, alongside the addition of newly selected judges of proven integrity, should collectively constitute a substantial and stable majority.
Challenges in the renewal of the Supreme Court
The Supreme Court has historically been a pivotal tool for political influence. Disguised as anti-corruption measures and reforms within the Supreme Court, political authorities are attempting to enact measures that facilitate political oversight of the court.
Presently, several draft laws are under consideration in Parliament, aiming to provide political authorities with the means to influence the Grand Chamber of the Supreme Court. These proposals include reducing the size of the Grand Chamber and, more significantly, altering its composition. There is a suggested mechanism for the early recall and replacement of judges, placing additional pressure on judges and influencing their behaviour and decisions within the Grand Chamber.
Moreover, the proposed draft laws provide for assigning “political” cases, such as those related to presidential or parliamentary elections or judicial vetting or appointments, to any judge within the Grand Chamber. This increases the likelihood of the case reaching a judge with “favourable inclinations”. Unfortunately, the Supreme Court, in its Plenary, has already given its approval[7] to the proposal to modify the Grand Chamber’s structure, leading to its weakening and increased political dependence.
Some structural changes to the SC may be beneficial in the future, but not before its renewal is complete and doubts about the institution’s integrity are dismissed.
Conclusions
International conditionalities are one of the most influential tools for driving reforms in Ukraine. With approximately 90% of Ukrainians expressing support for joining the European Union, the EU possesses substantial leverage to demand reforms in the country.
However, it is imperative for stake-holders and decision-makers in the country to commit to renewing the Supreme Court in accordance with a model involving the vetting of current judges based on declarations of integrity and the selection of new judges through a new procedure incorporating the PCIE and the PIC. This particular model stands out as a direct and sufficiently effective approach for a comprehensive renewal of the Supreme Court. Its implementation could serve as a transformative force for Ukraine’s judiciary.
In contrast, models providing for the establishment of political control over the Grand Chamber should be dismissed, given they are counterproductive and impractical for successful implementation.