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HAC Candidates Pressured Through the High Council of Justice

Over the past few weeks, DEJURE Foundation experts have been observing an alarming trend: disciplinary action has been used as a threat to pressure some candidates who applied for vacancies at the High Anti-Corruption Court. In accordance with Ukrainian legislation, a judge who has an outstanding (“unexpunged”) disciplinary sanction is ineligible, for one year, to take part in competitive selection of candidates for judicial vacancies.

On 20 November 2018, the High Council of Justice refused to extend Judge Viktor Fomin’s  (see the photo) six-month secondment to the Kyiv Solomianskyi District Court. This judge is well-known in Ukraine because he dealt with high-profile cases investigated by NABU and SAPO. For instance, this judge issued [pre-trial] decisions on applications (motions) concerning Members of Parliament Liashko, Mosiychuk, Rozenblat and Rabinovich, Interior Minister Arsen Avakov’s son, SSU Deputy Head Pavlo Demchyna, Ex-Deputy Head of the State Migration Service Dina Pimakhova, Ex-Head of NAPC Natalia Korchak, Odesa Mayor Hennadiy Trukhanov, etc.

During the above-mentioned sitting,the High Council of Justice chose to exlude Liudmyla Poliakova, a judge of the Kyiv Holosiyivskyi District Court, from the list of judges to be appointed for an indefinite period of time. And this was done despite the fact that she successfully passed her qualification evaluation procedure. Roman Maselko, an expert from DEJURE Foundation, believes that this demonstrates that the High Council of Justice has chosen to persecute judges who rebelled against Ex-President of the Holosiyivskyi District Court Olena Pervushyna.

“A very interesting story… It has been confirmed that the Military Prosecutor’s Office is Pervushyna’s “domesticated” prosecution office. Following her application, they searched a judge’s [office/home?]… and also interrogated the staff before a criminal case was registered [in the Unified Register of Pre-Trial Investigations]. Those were methods that Pervushyna used to intimidate disobedient judges. The same principle was used to suppress some activists, but with no success (“teeth broken”). I am sure this story is to be continued…”, says the expert.

Besides Fomin and Poliakova, there were at least another four similar cases, including “episodes” featuring Larysa Holnyk, Larysa Tsokol and Vitaliy Radchenko. On 19 October, the First Disciplinary Chamber of the High Council of Justice initiated the dismissal of Larysa Tsokol, a judge of the Kyiv Pecherskyi District Court, in connection with some alleged disciplinary misdemeanours that discredit the judiciary and undermine the credibility of justice. This judge is well-known in Ukraine because in December 2017 she refused to impose a house arrest, as a preventive measure, on Mikheil Saakashvili, ex-President of Georgia, as requested by the Prosecutor General’s Office.

Ten days later, the first disciplinary case was opened against her on the basis of a complaint filed back in March 2017. Then the following month, another two disciplinary cases were opened against her and subsequently merged into one. A preliminary opinion in that case had to be drafted by Oleksiy Malovatskyi, an ex-lawyer of President Petro Poroshenko. Experts emphasize that the severity of the disciplinary sanction imposed on Judge Tsokol and a number of “coincidences” in the process of disciplinary hearings suggest that disciplinary action amounted to retaliation for her “Saakashvili ruling” [on the preventive measure to be imposed].

In late May, the High Council of Justice also gave a reprimand to Larysa Holnyk, a judge of the Poltava Oktiabrskyi District Court, for her Facebook post where she had been outspokenly critical of the decision taken by the general assembly of judges at her court. At the time, her colleagues chose to ignore an opinion of the Council of Judges of Ukraine in which the Council had drawn their attention to the “inadmissibility of electing people with low moral, business and professional standards as Presidents of courts.” The judges actually decided that the incumbent President of their court was worthy to remain in office.

Judge Holnyk appealed the reprimand to the plenary of the High Council of Justice, however on 2 August the latter refused to set it aside. Since a reprimand deprives a judge of the right to take part in competitions for judicial vacancies in new courts, Larysa Holnyk was not able to apply for the position of an HAC judge, although whistleblower judges who have proved their adherence to principles would be a much needed asset to this court. On 28 October 2018, the High Qualification Commission of Judges refused to allow Holnyk to take part in the competition for High Anti-Corruption Court vacancies.

A Lviv judge, Vitaliy Radchenko, received a severe reprimand from the High Council of Justice for authorising a search in judge Pavlo Vovk’s home and office to be conducted by NABU detectives on 27 May 2017. This event got a lot of public attention. During the search, the detectives gathered very important evidence that they needed to investigate and prove crimes that had been committed. Besides, some findings of the search were presented to the attention of the High Qualification Commission of Judges. The commission came to a conclusion that Judge Vovk had failed to comply with anti-corruption legislation.

Following the search, Kyiv Administrative Circuit Court judges made a public statement and filed a complaint against Radchenko for issuing the above-mentioned search warrant. On 5 October, the First Disciplinary Chamber of the High Council of Justice issued a procedural decision on opening disciplinary proceedings against him (reporting person – A. Lesko).

[Remarkably], it took the High Council of Justice less than four months to open proceedings against Radchenko, whereas opening similar proceedings against “Maidan judges” took over a year. According to the NABU Public Oversight Council, motives outlined in the decision of the Disciplinary Chamber are surprising. They are indicative of certain bias on the part of members of the First Disciplinary Chamber. Moreover, this decision was issued after the High Council of Justice had delivered its Decision No. 2438/0/15-17 of 15 August 2017 following the examination of a similar complaint filed by judges of the Kyiv Administrative Circuit Court.

When examining the said complaint, the High Council of Justice expressed its opinion on allegations that NABU’s motion (application) for a search warrant should not have been filed in Lviv. At the time, the HCJ ruled that there were no violations on the part of the NABU detectives. However, in October these very facts became the basis for a decision initiating disciplinary proceedings against the judge.

On 14 June, the Great Chamber of the Supreme Court set aside the reprimand given to Radchenko. The High Council of Justice believed that the judge’s decision authorising the search was “insufficiently substantiated”. But the Great Chamber disagreed with the HCJ stating that the Criminal Procedure Code does not place an obligation on investigating judges to list all circumstances in a criminal case or to present all known details and findings in a case or to provide an excessively accurate list of evidence to be seized. Therefore the disciplinary sanction was mitigated from a reprimand to a warning. However, the [affected] judge believes that [even] a warning is groundless, so he is going to appeal this decision.

This material is translated into English with the support of the European Union Advisory Mission to Ukraine. It does not necessarily represent the views of EUAM.