There’s a nauseating feeling of déjà vu.
Under ex-Ukrainian President Viktor Yanukovych, USAID took part in the preparation of tests for the hiring of Ukrainian judges.
USAID insisted back then that the tests were entirely fair and objective, and the “human factor” was completely ruled out.
“The transparent and open system of selection allows a big number of candidates to participate and provides independent, unbiased and fair judges for the judiciary,” Ann Marie Yastishock, then acting head of USAID’s regional mission for Ukraine, Moldova and Belarus, said in 2012.
It sounds surreal now: everyone knows how politically subservient and corrupt the judiciary was under Yanukovych.
One year later, the results of USAID’s robust cooperation with Yanukovych and Igor Samsin, then head of the High Qualification Commission of Judges, were obvious: judges, including those appointed with USAID’s help, routinely fabricated political cases against EuroMaidan activists amid an atmosphere of lawlessness as the system of justice completely collapsed. The level of trust in the judiciary plummeted to an all-time low.
Moreover, evidence emerged that the recruitment of judges with USAID’s participation was rigged, with test answers being sold to candidates, according to a 2011 investigation by the Ukrainska Pravda online newspaper.
USAID representatives didn’t do anything about it. On the contrary, USAID was covering up for Samsin and regularly held jovial and friendly meetings with the High Qualification Commission.
Repeating old mistakes
Fast-forward several years. Now, the situation is being repeated in minute detail.
USAID and European experts are not reacting in any way to the violations and manipulations of Samsin’s successor, High Qualification Commission Chief Sergey Kozyakov, and are legitimising the fake “reform” he’s carrying out.
The European Union’s Pravo-Justice project, headed by Lithuanian legal expert Dovydas Vitkauskas, financed the preparation of practical examination tasks and psychological tests for a Supreme Court selection process that was heavily rigged last year.
The practical exams had questionable validity. Some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool of promoting political loyalists. Moreover, some practical test assignments were downloaded directly from the public register of court cases.
To promote political proteges, the High Qualification Commission unlawfully allowed 43 candidates who had not gotten sufficient scores during practical tests to take part in the next stage, changing its rules amid the competition.
The psychological tests were supposed to account for 400 out of 1,000 assessment points, but the commission had an opportunity to ignore them altogether and thus assign 400 points without any reasons. Moreover, the validity of the tests has been questioned, as they targeted corporate loyalty and high discipline, which would reward politically dependent candidates and penalize independent-minded ones.
USAID sponsored a psychograph for the tests but its most important aspects were not used by the High Qualification Commission.
Ukraine should be extremely grateful to European and US taxpayers who generously provide money to promote the rule of law in Ukraine. Yet the wasting of that money by Western officials must be thoroughly investigated.
They should realise that they will be held responsible for what they’ve done or failed to do.
Western officials’ failure to criticise the High Qualification Commission’s manipulations and violations is understandable: they don’t want their own role in legitimizing such violations to be exposed.
USAID and the Pravo-Justice project said they could not comment by the time of the publication, while the High Qualification Commission did not respond to a request for comment.
“USAID is working in Ukraine to promote an increasingly fair, transparent, and merit-based judicial selection process, providing expert support to Ukrainian partners, including the High Qualifications Commission of Judges (HQC),” USAID later said in a written response. “This has resulted, for instance, in the adoption of legislation in 2010 that requires all judicial candidates, for the first time, to pass an objective, anonymous, written test of legal knowledge in order to proceed in the judicial selection process, establishing basic competencies for evaluating judicial candidates that did not previously exist.
The latest manipulation came on Nov. 12 during the testing of candidates for the High Anti-Corruption Court and the Supreme Court.
Previously, the High Qualification Commission had been lambasted for its highly arbitrary assessment methodology, in which only up to 210 points are assigned to candidates for relatively “objective” legal knowledge and practical tests, and up to 790 points without giving any reasons. Knowing that it might be blocked from rigging the “subjective” score, the commission decided to safeguard itself by manipulating the “objective” one, according to Vitaly Tytych, coordinator of the Public Integrity Council, the judiciary’s civil society watchdog.
Many of the questions in the November 12 legal knowledge tests had more than one correct answer, Tytych and judge Mykhailo Slobodin said. Thus the commission had an opportunity to promote some candidates by telling them which answers it deems right.
The irony is that during the testing of judges under Yanukovych with USAID’s help, test questions also had double correct answers, and they were sold to candidates, according to Ukrainska Pravda.
This manipulation could explain why some of the most controversial and politically connected candidates turned out to be at the top of the ranking.
The Public Council of International Experts (PCIE), a foreign expert panel, is intended to help the anti-corruption court’s selection.
To make sure that the competition is rigged, the High Qualification Commission has rejected PCIE nominees whose anti-corruption record and knowledge of Ukraine are well-known. The commission on Nov. 6 appointed little-known PCIE members whose ability to ensure the selection of a genuinely independent court is unclear.
The members of the PCIE have not yet arrived in Ukraine.
Moreover, no money has been allocated to fund the PCIE. Neither have the authorities ensured the PCIE will have access to candidates’ personal data and profiles, government registers, or the results of their practical examinations.
The High Qualification Commission is planning to announce the results of practical examinations on Nov. 26, according to Anastasia Krasnosilskaya from the Anti-Corruption Action Center. By quickly announcing the results of practical exams, the commission is trying to prevent the PCIE from assessing these results and from doing their work within the 30-day deadline set by the law.
The most likely scenario is that the PCIE will veto only a few “bad” candidates and allow the High Qualification Commission to select a majority of politically connected candidates. Thus the commission wants the PCIE to legitimise the selection of a politically dependent kangaroo court.
The High Qualification Commission is likely to bet on dark horse candidates – politically loyal lawyers and judges without an obvious record of corruption and wrongdoing. They are, in fact, the most dangerous candidates.
Even in cases when the political links of candidates are obvious, the commission will make sure that it’s hard for the PCIE to veto them.
The commission will say that lawyers are not responsible for their corrupt clients and that the political links of spouses or friends must not be considered sufficient evidence to ban them.
The solution to this would be for the PCIE to assume an assertive and ambitious role and veto all candidates except for those with the best experience, skills and integrity, which is directly required by Ukrainian law. To do that, the PCIE must assess practical exam results and candidates’ court decisions and legal opinions.
Thus the High Qualification Commission will have no opportunity to promote shady political proteges by rigging the competition.
The High Qualification Commission also plans to use and manipulate the PCIE’s superficial knowledge of the Ukrainian context.
In the European Union, corruption is an exception, and normal behaviour is the norm. In Ukraine, it’s the other way around: government institutions are irredeemably corrupt from top to bottom, and integrity is a rare exception.
Thus, recipes for overcoming corruption are different.
In the EU, a majority of contestants in such a competition would probably be honest and professional. Thus, it would suffice to veto the remaining bad ones. In Ukraine, a majority of candidates are compromised by definition: they are a result of a kleptocratic system. Thus vetoing a minority would not achieve anything.
The problem, however, is that many European and US officials working in Ukraine don’t care about the selection of an effective and independent court. They are too entrenched in the quagmire of corrupt Ukrainian politics and have a vested interest in maintaining the status quo.
Thus, they are betraying both their own taxpayers, who are wasting money on entrenching Ukraine’s bloated kleptocracy and the Ukrainian people, whose hope for justice is being utterly destroyed.