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Prejudging the judicial reform – Supreme Court (Stage 1)

July 17, 2017

About a week ago an entry appeared that cast a somewhat pessimistic light upon the much needed judicial reform – bemoaning the structure and processes that will deliver judicial reform, but it would appear without reforming the judiciary.

“As such the judicial reform has already set off along a poor path as the structure and process behind what will result will not lead to a truly independent judiciary staffed by morally upstanding and individually independent judges.

The Prosecutor General’s Office will also never convincingly reform whilst ever it is run by a politician (and Yuri Lutsenko was, is, and will always be a politician) and any eventual structure and process reform is likely to leave this institution beholding to those in power.

The reason being that those historically and currently in power simply cannot find it within themselves to surrender the prosecutors and judiciary to genuine independence.  The sword, rather than the scales, seem likely to remain the preferred tool of the State.  For my friends anything – for everybody else the rule of law.”

Needless to say there are some significant issues within the Constitutional Court legislation rushed through the Verkhovna Rada on its final day of its final plenary session before parliamentary summer holidays.   The new legislation does not provide for a structure or mechanism to make the 6 parliamentary, 6 presidential, and 6 Congress of Judges appointments subject to any form of open competition.  Thus the most deserving and successful candidates will remain those politically deserving – no differently to what occurs now.

The new grounds for dismissal are both woolly in interpretation and can be equally politically driven (albeit that dismissal is now the sole purview of the CoJ).  The major pluses to the hurriedly passed  legislation are, well, none.

A dedicated Anti-Corruption Court is not going to appear any time soon leaving the anti-corruption institutions to present cases to an unreformed court – and Lady Justice in Ukraine remains a harlot for hire.

However it is with regard to the Higher Qualification Commission of Judges (HQCJ) that this entry appears, for 17th July will see it finally conclude its review of all applicants for the new Supreme Court.  The final 6 judges subjected to the probing and prodding of the Public Council on the Integrity of Judges (PCIJ) appear before it.  Among those to be considered is the notorious Judge Vovk, although none of the 6 being considered on 17th are particularly morally upright.

Indeed, whilst the PCIJ continues to highlight lifestyles and assets far beyond incomes, the HQCJ continues to demand proof of corruption.  In short the new Supreme Court will almost certainly not be staffed by those that passed every “sniff test” of a “reasonable person”, but will be staffed by those who, even if “smelly”, at least too much shit did not stick to their blanket under a cursory glance as far as the HQCJ is concerned.

A low moral and ethical bar has apparently been set.

When historically the European Court of Human Rights has said of the Supreme Court of Ukrainethe court believes that the rationale of the Supreme Court of Ukraine can be interpreted only as a” flagrant arbitrariness ” or “denial of justice it is surely not the best way to boost public confidence in the new Supreme Court when the public watchdog says “they smell” but the the HQCJ prefers not to sniff.

Thus far only 25 of those deemed “smelly” by the PCIJ have been deemed “smelly enough” by the HQCJ to prevent their running for the Supreme Court.  In percentage terms only 18% of those thought too smelly have been thought of as too smelly by both PCIJ and HQCJ.  Another 115 judges were allowed to continue to run for the Supreme Court by the HQCJ despite failing the PCIJ sniff test.

To be clear, Judegs Vovk, Marynchuk, Sirosh, Stupak, Okhrimchuk and Invanova that are before the HQCJ on 17th July have all failed the PCIJ sniff test.  Without doubt Judge Vovk is the most notorious and nefarious (and should he be allowed to continue to run for the Supreme Court it will say all a reader needs to know about the process), but smelly is smelly despite the toxicity of the odour.

Indeed, to be clear, of 382 candidates many have passed the PCIJ sniff test as well as the HQCJ hurdles – certainly more than enough to fill the new Supreme Court Judge vacancies and allow for some competition for those vacancies from among the odourless.

Whatever the case, and whatever the outcome, 17th July brings to an end the first stage in the selection of judges for the new Supreme Court – and unsurprisingly the results of the first stage do not bode well for that which will follow.

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