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In autumn 2015, when the President has already submitted amendments to the Constitution regarding the judiciary for Verkhovna Rada's consideration, the advisory body dealing with the judicial reform has closely approached the development of amendments to the law on the judicial system and the status of judges. Several members of the Judicial Reform Council - MPs Oksana Syroyid ("Samopomich") and Leonid Yemets ("Narodnyi Front"), as well as Reanimation Package of Reforms' expert Roman Kuibida - proposed to involve representatives of the public in the Procedure for Qualification Assessment of judges and judicial candidates. As a result, Ukraine has become the first country in Europe to enable NGO representatives to exercise veto power over candidates who do not meet the criteria of professional ethics and integrity according to the public opinion, left along to monitor the lifestyle of judges and judicial candidates as well as to assess their ethical conduct. It is an interesting idea, and more - it is necessary in the realities of Ukraine. Have the expectations been met though?
Thus, the new Law of Ukraine "On the Judiciary and Status of Judges", which came into effecton September 30, 2016, determines that in order to assist the High Qualification Commission of Judges of Ukraine (HQCJ) withestablishing the compliance of a judge (judicial candidate) with the criteria of professional ethics and integrity for the objectives of the qualification assessment, the Public Integrity Council (PIC) is to be formed. Also, according to Art. 87 of the aforementioned law, the PIC is to consist of twenty members.
The PIC has worked in the current line-up sinceNovember, 2016.
According to Article 3 of PIC'sRules of Procedure, members of the Council share values such as dignity, justice, human rights, integrity, respect for the independence of judges, and conform to these values in their conduct. The Council and its members carry out their activities based on the principles of dutifulness, impartiality, transparency, equality of members, and political neutrality.
The PIC adopted 146 negative opinions on the candidates during the competition to the Supreme Court. However, later the Council cancelled 12 of them, having recognized that they were groundless.Among the main claims mentioned in the conclusions are: the inconsistency between expenses and lifestyle of a candidate and the existing incomes, conflict of interest, unethical behaviour, double standards, favouritism. Do the PIC members adhere to these criteria in their life and activities though?
Inconsistency between the Income and Expenses
Roman Maselko: PIC's memberRoman Maselko, known for his posts on Facebook regarding the wealth of judges and judicial candidates, lost a steadysource of income in January, 2016 when he was dismissedfor improper performance as a head of ProCredit Bank's legal department. He has not officially worked since then.Although, he claims to have received an income of about 60,000 UAH ($ 2,300) in 2016-2017. Some of the earningscame from "Avtomaidan", and some - from the judge of Cherkasy Regional Court of Appeal Serhii Bondarenko, whose interests Maselko represents in courts and in the HQCJ. Roman Maselko doesnot ownany means of transport, however he enjoysthe transportation services of Avtomaidanactivists as well as of Vitaliy Tytych, his colleague from the PIC and the Lawyer Advisory Group.
Vitaliy Tytych: PIC's member Vitaliy Tytych also has an inconsistency between his lifestyle and his actual income. According to the analysis of Mr. Tytychdeclaration, his official income in2015 amounted to only 99,000 UAH, that is approximately 8,000 UAH per month. At the same time, his son's education ata private gymnasium "Prestige" alone costs the same amount. Besides, Mr. Tytych has a personal driver andtwo Lexus cars that require a significant monthly maintenance and gasoline. More, he also pays for the mother's nurse, and often travels abroad.
According to media reports, V.Tytych lives in a countrycottage in the private complex "Happy a Land" since 2015 (Kyiv region, Bilogorodka village, Yarova Str.). However, Tytych neither mentioned it in hisincome and property declaration nor registered the ownership of the abovementioned cottage house, that costs about $ 125,000. The origin of the indicated amount of funds is unknown.
Mykhailo Zhernakov: One of the claims to Supreme Court candidates was their lack of housing. It raised suspicion among the PIC members. However, the PIC member Mykhailo Zhernakov does not own a single square metre of housing in Kyiv, even though he lives and works in this city (Https://grd.gov.ua/data/members/zhernakov/declaration.pdf).
At the same, Zhernakov s upports the idea that information in social networks has the right to exist and to be verified. When h e was a judge, he had a Honda motorcycle, which he did not mentionin the income and property declaration.
Zhernakovis an active traveler: Japan, New Zealand, Latvia, Georgia, Italy, Belgium, France, the Czech Republic, Poland, Latvia, Estonia, Bulgaria, Germany, Sweden, Kyrgyzstan, Denmark, etc. Obviously, the cost of travelling to countries like Japan, New Zealand, Denmark, and Belgium can not be kept within the declared budget of UAH 206,000 per year.
Leonid Maslov: by now a former member of the PICLeonid Maslov, who was expelled from the Council for unethical behaviour, has a seriousproblem with his inconsistency between incomes and expenses as well. In the declaration, Leonid Maslov indicated a share of ownership only in two companies: LLC Sense Consulting (his investment amountsto 102,496 UAH) and LLC Sens-Kontora. However, according to Unified Register of Legal Entities, Leonid Maslov is a founder of manyothercompanies. Nevertheless, Maslov's investmentsin these companies differ significantly from the ones statedin his declaration.
Conflict of Interest
Roman Maselko is a member of the PIC. Simultaneously, he represents interests of certain individuals in disciplinary enquiries at the HQCJ. For instance, the candidate to the Supreme Court, judge of Cherkasy Region al Court of Appeal Serhii Bondarenko .
In addition, Maselko r epeatedly filed complaints to the HQCJ and the High Council of Justice (HCJ) against certain judges and provided his own assessment of them. Some of these judges are participants ofthe Supreme Court competition.
As a member of Avtomaidan movement, Roman Maselko takes part in campaignstargeted at specific courts and judges. "Avtomaidan" is a political project, closely linked with Oleksiy Hrytsenko, a son of Anatoliy Hrytsenko, a well-known politician, former high-ranking official, and a Member of Parliament.
Nataliia Sokolenko, Maryna Solovyova: The PIC member Natalia Sokolenko has been nominated to the CouncilbyNGO "Center.UA". At the same time, in 2014, Sokolenko and another member of the Council Maryna Solovyova were active participants ofthe election campaign to the Verkhovna Rada from the the "Hromadyanska Pozytsiya" party (the Civil Position). Natalia Sokolenko is also anactivist of "DemAliance" party.
Zhernakov Mykhailo: When M. Zhernakov was nominated to the the PIC, he did not inform about the existing conflict of interests. Zhernakov’smother Olha Minaieva is a judge ofKharkiv Administrative Court of Appeal and was a candidate tothe new Supreme Court. Moreover, according to media reports, Zhernakov's mother did not mention in adeclaration of integrity about her nephew Minaiev Mykhailo Mykolayovych, who was appointed as a judge of Oryhiv District Court of Zaporizhzhya region on November 7, 2013by a Yanukovych decree, as well as his wife Minaieva (Svyrydenko) Kateryna Volodymyrivna, who became a judge of the Zaporizhzhya Regional Administrative Court on May 18, 2012.
Leonid Maslov is connectedtopolitical forces. He is an assistant to MP Yaroslav Markevich ("Samopomich") (http://posipaky.info/minion/330230), and his firm represents interests of legal entities - enterprises in courts. Before that Maslov was a memberof the Chervonozavodsk District Council of Kharkiv.
Dmytro Serhiyovych Kruhovyi is a co-founder of a number of Maslov'scompanies. Kruhovyi's mother Svitlana Kruhova is a judge of Kharkiv Regional Court of Appeal and a participant of thecompetitionto the new Supreme Court.
Double Standards and Favoritism
Tytych Vitaliy: According to Tytych, almost all Supreme Economic Court (SECU) judges are to blame for not opposing to the interference in the automated case distribution system when Viktor Tatkov was a head of the SECU - those who wereimplicated by the investigation, and those who were not. However, for some reason the PIC does not mention this information about some of SECU judges. In particular, such facts are omitted in the information provided aboutOlena Yatsenko (https://grd.gov.ua/data/files/conclusions/11_05_2017/info/yatsenko_info.pdf), unlike about other SECU judges who, in fact, werenot classified as those who were assigned cases( https://grd.gov.ua/data/files/conclusions/03_05_2017/info/hrek_info.pdf).According to the media,Olena Yatsenko is one of those candidates who has informal connection with Vitaliy Tytych.
Natalia Sokolenko: A PIC member Sokolenko criticizes some of the candidates: https://www.facebook.com/natali.sokolenko/posts/1398467700191305
In contrast, she had praised other candidates before the HQCJ issued the final decision ("The PIC approved a positive assessmentofthe candidates to the Supreme Court: Mamalui Oleksandr Oleksiyovych (ATO veteran), Matsedonka Viktoriia Eduardivna (expressed a dissenting opinion onthe appeal decision toban Euromaidan), and Yanovska Oleksandra Hryhoriivna (scientist, ad-hoc Judge of the European Court of Human Rights, assists in drafting legislation)".
Leonid of Maslov: It should the beduly noted that another member of the the PIC Leonid Maslov publicly stated in his interview that it was the Supreme Court candidate Oleksander Mamalui who encouraged himto take part in the work of the the Public Integrity Council : "And the next thing you know, I receive a phone call from a judge who served as a sniper in the ATO zone Sasha Mamalui. He says: "Thisorganization is being formed. I am afraid that there will not be any soldier there though. You should submit the documents". So this is how I have got into this Council".
It is evident that Roman Maselko has a selective approach towards judges. Some of them are underconstant pressure from himpersonally as well as from the "Automaidan" o rganization. Their methods include blocking of court premises, disruption of court sessions, and visits to places of residence of judges in order to pressure them into delivering the judgement Maselko and his friendsfind appropriate.
When the PIC was providing its opinion on the candidatesto the Supreme Court, one could clearly see a settling of scores with a fewjudges who Roman Maselko had a conflict with. For example, a negative opinion on the candidate for the SC and the current member of the Supreme Council of Justice, Alla Lesko is based solelyonMaselko's personal opinion about the judge. In the opinion of the PIC members, Alla Lesko in some way opposed Roman Maselko and prevented him from dismissing specific judges.
At the same time, during the competition to the Supreme Court a number of candidates received Roman Maselko's public appraisal, which is a direct violation of the principle of neutrality. Specifically, Maselko provided information support for the judge of the Cherkasy regional Court of Appeal Serhii Bondarenko, the judge of Kharkiv regionalEconomic Court Mykhailo Slobodin, and the judge of Kirovohrad Regional Administrative Court Roman Brehey. Therefore, despite the declared principle of neutrality, the candidate himself never actually adheres to it and acts according to his own motivationsand motivations of his entourage.
Mykhailo Zhernakov: Based on the information Zhernakov publishes on his Facebook page, he supports some of the candidates to the Supreme Court, in particularMykhailo Slobodin, Roman Brehei, Dmytro Hudyma, and Viktor Bratasyuk.
Roman Maselko: It is also worth mentioning a conflict between Roman Maselko and several members of the HQCJ. It originated in 2016 when Maselko had been twise elected as a HQCJ member (under the quota of the State Judicial Administration and the Commissioner for Human Rights), however the both times he failed to receive a required number ofvotes of members of the Commission. Also, Maselko is close with some of political figures of the "Samopomich" party, including the chairman of the Parliament's Anti-Corruption Committee Yehor Soboliev.
On her Facebook page Natalia Sokolenko discussesdifferent candidates to the Supreme Court. For instance, on April 24, 2017, she posted the following message : «Do not the sleep!Read the news from the the PIC)Just now the judge of Supreme Economic Court (SECU) Nina Akulova has shamefully left the competition to the Supreme Court!.. The Public Council concluded that the candidate does not meet the criteria of integrity and professional ethics. The High Qualifications Commission of Judges supported the conclusion. The main problemin this case is that Akulova is involved in a criminal prosecution for interfering in the automated case distribution systemof the SECU. The plaintiff in this case is Vitaliy Tytych, a well-known lawyer and a PIC member. And this story provesthat as you sow, so shall you reap.Vitaliy Tytych addressed a statement about the crime - systematic interference in the automatic case distribution system in the SECU in the spring, 2014. Such statements claim about unethical behavior of PIC members and moreover, confirm about their conflicts of interest.
The Public Integrity Council oftenaccuses candidates to the Supreme Court of seemingly fictitious divorces. However, according to media reports, Vitaliy Tytych got fictitiously divorced himself and still lives with his ex-wife in a country house.10 out of 12 trips abroad Tytych has made with his "former" wife.
Mykhailo Zhernakov: Mykhailo Zhernakov's desire to take part in the inspection of candidates may be due to the disappointing results in his own career as a judge. There is a reasonable risk that he is biased towardssome judges and certain candidates to the Supreme Court since Zhernakov has personal claims (he appealed to the High Administrative Court of Ukraine that he was not transferred to the District Administrative Court of Kyiv).
In particular, on September 30, 2013, a meeting of the High Qualifications Commission of Judges of Ukrainedecided to recommend Zhernakov to transferredto mete out justice atthe District Administrative Court of Kyiv. But in reality such transfer did not take place. As a result, Zhernakov appealed thedecision about the return of his documents to the SECU.
That is likely that he criticizes activities of the Council of Judges of Ukraine and some members of it, who are candidates for the Supreme Court for the reason he was not elected to the Council of Judges of Ukraine (CJU) atthe Congress of Judges in 2014.
In his statements Zhernakov often assesses the professionalism of judges, although, according to official information received from the Vinnytsya District Administrative Court, Zhernakov considered a small number of administrative casesduring the period of his judgeship: 243 cases in 2012, 214 cases in 2013, 234 cases in 2014, and 76 cases in 2015. The Supreme Administrative Court of Ukraine canceled 5 decisions of the Vinnytsya District Administrative Court, presided by Zhernakov, and the Vinnytsia Administrative Court of Appeals changed 1 and canceled 37 (!) decisions of the Vinnytsya District Administrative Court, presided by Zhernakov. Number of days when Zhernakov did not administer justice at the Vinnytsya District Administrative Court is 449 days (!).
Mykola Kucheryavenko, a stepfather of Mykhailo Zhernakov, was h is PhD thesis supervisor. The list of works published by the author on the thesis includes the monograph "Zhernakov M.V., Legal regulation of representation in the field of taxation: Monograph / Zhernakov M.V. - Kh .: Pravo, 2006 - 144 pages". However, in 2006, Zhernakov was still a third- or fourth -year student. Additionally, "Scientific and Practical Commentary of the Budget Code of Ukraine. Second edition, stereotyped / The team of authors: Bekh G.V., Voronova L.K., Kucheryavenko N.P. and others; Under the general editorship of the Doctor of Law, prof N.P.Kucheryavenko – Kharkiv.. : Odysseus, 2007. P 12, 72, 74 (ZhernakovM.V. in co-ed with Kucheryavenko N.P.)". Obviously, such a co-authorship could not take place.
Besides, among the official opponents of his thesis were: a lecturer of S.Kivalov's university, Latkovska Tamara Anatoliivna and a candidate for the position of a Supreme Court judge Bernazyuk Yan Oleksandrovych (!). Initially, the Public Integrity Council issued a negative conclusion about this candidate, but it cancelled later, even though the candidate remains an assistant to a MP, and there were doubts whether he had enough work experience, etc.
In 2016 (at the age of 30), Zhernakov received the title of Doctor of Law, having defended the thesis at the National University of the State Tax Service of Ukraine on the topic "Tax Disputes: Reforming the Mechanisms of Resolution," which is also a specialization of his stepfather.
Leonid Maslov: In April 2017, the the Public Integrity Council received a complaint about the PIC member Leonid Maslov'sunethical communication with the public lawyers, judges, the public activists through his statements in social networks: "It's not you to judge up my culture, green cheesedick. U nlike you , the shit, I was t aught to r espect the elders ... Therefore, pup, shut your trap ", " I am a skeptic and do not conceal the f act t hat the Judicial system is full of dookey and parasites", " Your Kravets is c heap bullshitter and a nit", "...With a small penis. Although the no, the latter have the no penis and neither Conscience, no r followers ” "(http://ua.racurs.ua/content/images/Publication/Article/15/48/content/3(1).jpgand http://resonance.ua/peretvorennya-gromadskoi-radi- dobro /).
The PIC did not respond to this complaint, and the PIC member Maslov went on: in two weeks he publicly threatened journalists with physical harassment and insulted judges in social networks.
The lecturerat the Kyiv Mohyla Academy Volodymyr Sushchenko, other lawyers and judges, as well as journalists have publicly condemned the unethical behaviour of the PIC member Maslov. As a result, Maslov publicly tenderedresignation on a his Facebook page, saying: "Go to hell, all of you!".
Instead of conclusion: It is a rhetorical question, whether the actions and behaviour of some members of the Public Integrity Council meets the ethical and integrity criteria ...