The main event of 2017 in Ukrainian dispute resolution (and maybe for all legal practices) is certainly the formation of a new Supreme Court.
For almost a century the Supreme Court was formed under the decisive influence of the executive, and only in 2016 did constitutional reform transfer the relevant powers back to the judiciary and the legal profession.
Now, for the first time ever, the judges of the Supreme Court will be appointed following an open competition, and again for the first time ever practicing lawyers and scholars outside the judiciary have been allowed to run for the highest judicial offices in the country.
The actual procedure of the appointment of the new Supreme Court judges, however, has produced mixed impressions in the legal community.
First, the widely-advertised possibility for legal professionals to take part in the competition turned out to be severely limited. To enter the competition, practitioners had to be qualified barristers (advocates) and had to confirm ten years of experience in courts. Historically, many practitioners in the civil and commercial spheres did not obtain advocate status, which had essentially no practical benefit. It can also be difficult to prove practical experience, since smaller practices and in-house counsel rarely keep case records for ten years. Scholars suffered as well: due to the imperfect wording of the law (later corrected by the parliament) only those employed by universities were allowed to compete, while the ones working for purely scientific institutions were barred.
As a result, only 20% of the competitors were either practitioners or scholars – the rest were judges. Eventually, about the same distribution of candidates was approved for appointment to the Supreme Court.
The next stages of the competition also raised questions. The practical test included drafting a judgment on the basis of a moot case. After the drafting session ended, it turned out that at least some of the candidates, including the current Chairman of the Supreme Court, apparently drafted judgments on the basis of cases they had previously considered as judges. The competition authority added fuel to the fire by declining requests to disclose the moot judgments prepared by the candidates to the public.
The most controversial development, however, was the final stage of the competition, which involved the authority interviewing the candidates, taking into consideration the conclusions of the Public Integrity Council, an independent body created to verify the integrity of the candidates, including correspondence between their official income and their lifestyle, whether their judgments had been annulled by the ECHR, whether there was any allegation of ethical breaches made against them, and so on.
The Council issued “negative integrity” decisions for about 140 of the 319 candidates who made it to the final stage. The appointing authority, however, was entitled to override the negative decisions and very often did so, which resulted in 30 candidates being approved for appointment to the Supreme Court despite having received negative integrity decisions by the Council. This prompted the Embassy of the US in Ukraine to call for an additional review of these candidates on a case by case basis.
The final list of the candidates is expected to be officially approved in September 2017, and the new judges formally appointed shortly thereafter by the President of Ukraine. They will assume their new role amid allegations of competition rigging and corruption, and it is first of all up to them to prove that the new Supreme Court will serve as an example of professionalism and fairness.
By Oleksiy Didkovskiy, Managing Partner, and Dmytro Shemelin, Counsel, Asters
This Article was originally published in Issue 4.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.