On June 1, 2023, the High Council of Justice appointed 16 members of the new High Qualification Commission of Judges. On June 6, the Judge of the Kyiv Court of Appeal Roman Ihnatov was elected as the Chairman of the HQCJ by a majority of the Commission’s members. For more than 3,5 years, when the HQCJ did not have a full composition, the judiciary has accumulated a huge number of personnel problems.
In an exclusive interview with the Judicial and Legal Newspaper, the HQCJ Chairman Roman Ihnatov spoke about the order of the procedures, priorities of the Commission, fakes about the alleged russian citizenship, captivity, and what determines the authority of court decisions.
New approaches of the new HQCJ
What are the principles on which the new HQCJ is going to operate?
First of all, the activities of the High Qualification Commission of Judges of Ukraine should be based on the principles of maximum transparency, both internal and external. This is what society expects from us. Today our country is in a difficult situation — the aggression against our country continues. Therefore, our activities must meet the public demand that is relevant nowadays and in the future, namely, the demand for open, transparent and professional work. We have a huge responsibility on our shoulders — the members of the Commission shall make every effort to establish a fair and highly professional judiciary which is based on integrity principles.
There is an opinion that a large number of members of the new HQCJ are somewhat distant from the problems of justice. What do you think?
This is a highly subjective opinion. No one is born a member of the HQCJ, just as athletes do not become champions overnight. There are qualification requirements that a person should meet. Then there was a competition for the positions of HQCJ members and consideration of the relevant recommendations by the High Council of Justice. If the HCJ members decided that a citizen is worthy to take the position of a HQCJ member, it means that the High Council of Justice considers him or her professional and capable to understand the problems and challenges that facing the HQCJ.
Three members of the new HQCJ are currently military personnel (Oleksii Omelian, Volodymyr Luhanskyi, and Yaroslav Dukh). The risk of military personnel being elected to certain positions in the judiciary has been discussed many times before, as they cannot hold two positions at the same time by law. The High Council of Justice was the first to face this problem, as the judge and servicewoman Olena Kovbii is still not enrolled in the Council’s staff and attends its meetings only occasionally. How will the HQCJ deal with this situation?
Since there is currently no legislative regulation on this point, the Commission members decided that HQCJ members who are military personnel will not participate in HQCJ meetings until this issue is either legislatively regulated or they are demobilized from the Armed Forces. In our opinion, such approach will protect the Commission’s decisions, as well as the competition procedures, from the risk of lawsuits. Therefore, until this problem is resolved, only 13 members of the HQCJ will participate in the meetings of the Commission.
Priorities of the new HQCJ
What will be the priorities of the new HQCJ? Which procedures will be restored first?
In order of priority, the procedures are planned to be determined as follows:
completion of the qualification evaluation of judges whose five-year term of office has expired a long time ago, i.e., the so-called “five-year judges”. According to our data, there are currently 365 of such judges.
completion of the qualification evaluation of all other judges with the first priority being to complete the qualification evaluation of judges from large cities — from the courts of Kyiv, Odesa, Dnipro, and Lviv.
a new competition for the positions of judges of the courts of appeal will be announced, as the situation in the courts of appeal is critical. For example, the staff of Kyiv Court of Appeal for Criminal Cases should include 75 judges. Currently, there are fewer than 30 judges in this chamber, not to mention the fact that 12 of these judges consider appeals against rulings of investigating judges issued during the pre-trial investigations and subject to appeal. In fact, this means that the Kyiv Court of Appeal has a critically small number of judges to consider criminal cases on the merits of the issue. The situation is similar in many other appellate courts.
selection of new judges for the Kyiv City District Administrative Court (KCDAC), which was established to replace the District Administrative Court of Kyiv.
selection of judges for another administrative court, which establishment is envisaged by the Memorandum between Ukraine and the International Monetary Fund of March 24, 2023. According to the text of the Memorandum, this court will consider administrative cases against national government agencies (National Bank of Ukraine (NBU), National Anti-Corruption Bureau of Ukraine (NABU), National Agency on Corruption Prevention (NACP), etc.).
Some of these procedures will take place simultaneously with others, some gradually.
What will happen to the competition for appellate courts judges announced back in August 2019?
It will be canceled as not having actually begun. A new competition will be announced, taking into account the new personnel realities in the courts of appeal.
Do you think that the Memorandum with the IMF does not refer to KCDAC, but to a completely different court that will consider cases exclusively against national government agencies, as well as structures such as NABU and NACP?
If we literally read the text of the Memorandum, it appears that the KCDAC and the court mentioned in the Memorandum are completely different courts, with separate selections of judges. The establishment of such a court will also entail significant changes to the Code of Administrative Procedure, with a clear definition of jurisdiction. However, it is possible that in the future this issue will be somehow regulated by the state and it will become clearer how many administrative courts will exist in the country and how many full-time positions of judges will need to be filled.
Qualification evaluation of judges: how the procedure will be resumed
As you know, more than two thousand judges have not completed the mandatory qualification evaluation Will the "rules of the game", i.e., the procedure and methodology for qualification evaluation of judges, be changed based on certain experiences?
First of all, we need to update the list of judges who have not completed the qualification evaluation procedure. Over the past 3,5 years, some of the judges who did not complete the evaluation could have resigned, and some more are likely to resign after the qualification evaluation procedure is resumed. Therefore, the Commission should understand the amount of work it has to do.
Regarding the “rules of the game”, I would like to note the following. No significant changes will be made to the evaluation procedure and methodology. Whatever procedure the judges used to start the qualification evaluation, they should use the same procedure to finish it. Unless, of course, any changes are made to the specialized relevant legislation.
What will happen to the selection of judges
What about the selection procedure of local court judges in 2017?
Since the HQCJ did not have authorized composition of members for more than 3,5 years, we plan to update the list of participants in the selection of judges to understand how many candidates we actually have now. Time is running out, so it is possible that some of the judicial candidates have already changed their life and professional plans.
And how it is planned to solve the problem of hundreds of unverified practical assignments of the candidates for the position of a judge from among lawyers, prosecutors, and representatives of other legal professions?
This is a big problem. So far, we do not have a clear answer to this question. Perhaps the National School of Judges will be involved in the examination of practical assignments. Unfortunately, the HQCJ members will not be physically able to carry out an appropriate examination of practical assignments given the scale of the work. In addition, in the future, there will be a need to check the practical assignments of not only candidates for position of a judge, but also practical assignments of participants in the competition for the positions of judges of appellate courts, etc.
Who has priority for vacant positions — judges or candidates for judicial positions
How will the problem of filling existing vacancies in the courts be solved? Who will have the priority – judges, who have been wanting to transfer to courts of the same instance and specialization for a long time in other cities, or candidates for judicial positions, as was the case in 2019?
I think that this time judges will have the priority. It is the judges who will have the priority right to fill the existing vacancies. The issue of transferring judges, which has not been resolved for years, must finally be resolved.
Partnership with the Public Integrity Council
How do you plan to build relations with the Public Integrity Council (PIC), given the traditionally difficult relations between the public and the HQCJ?
There should be close cooperation with the Public Integrity Council. There can be no other way. We should not be in conflict. We are not rivals, we are like-minded people. The PIC and the HQCJ have a common goal — to create fair and highly professional judiciary, which is based on integrity principles.
What do you think about the idea of legislative establishment of certain qualification requirements for PIC members?
The idea is not bad in general. Personally, I would like the PIC members to be true professionals with extensive experience not only in public but also in legal activities. But the HQCJ, as you know, cannot influence the appointment of PIC members, who are appointed by meetings of representatives of civic associations. Therefore, we can only express our wishes for the future professional composition of the Integrity Council.
When new PIC is planned to be established?
I think there will be a corresponding announcement from the Commission in the near future.
The HQCJ Secretariat
What is the current state of the HQCJ Secretariat? There was information that there are significant problems with funding and material and technical support of the Commission.
The financial and material and technical support problems of the Commission’s Secretariat are enormous. Almost all office equipment — computers, laptops, servers, etc. are already outdated or on the verge of exhausting their resource. There are significant problems with remuneration of the Secretariat staff. In fact, HQCJ Secretariat employees receive only basic salaries without any bonuses or other allowances. Given that the Commission has not been working for a very long time, in recent years it has actually been a kind of financial donor, which has been used to solve financial problems of the judiciary, in particular, funding of court staff. As a result, such salaries in the HQCJ Secretariat led to great difficulties to find IT and cybersecurity specialists. It should also be understood that the State Judicial Administration is the administrator of funds for the HQCJ. This creates some challenges for us, as the SJA has its own financial priorities. That is, it is the SJA that decides to what extent, when, and how to finance the HQCJ’s activities.
By the way, is it true that HQCJ members from among judges and representatives of other legal professions will receive different salaries?
For now, yes. And this is also an urgent problem, since all the HQCJ members have the same status, they all perform the same amount of work, but for some reason the salaries of the HQCJ members from other legal professions will be significantly lower. This should not be the case, and resolving this issue is a priority.
The problem of the SJA has existed in the judiciary for a very long time. However, no one has managed to solve it yet...
In fact, the SJA acts as an executive body for the judiciary. It should be recognized that the functions and powers of the SJA should have been revised a long time ago. In EU countries, for instance, there are no similar bodies in the judiciary that have such a great influence on the judiciary itself. In those countries where such bodies existed, their powers, as well as the expediency of their existence in general, have already been reviewed.
What is planned to be done to solve the financial and material problems of the HQCJ?
We will solve this problem through joint efforts with the High Council of Justice and the Verkhovna Rada Committee on Legal Policy and Justice. The relevant communication is already in place.
The mystery of “russian citizenship”
Recently, there have been reports on social networks and in some media that you may have russian citizenship, given that in 1995-1996 you worked in the prosecutor's office of the russian federation. What can you say about this?
I can clearly state that I do not have and have never had any russian citizenship. To understand the context of this situation, it is necessary to dive into those times – the early and mid-1990s.
In July 1991, I entered the Saratov Law Institute at the Judicial and Prosecutorial Faculty, which trained future judges and prosecutors. It was a specialized higher legal educational institution, of which there were only four in the entire USSR at the time. I studied there as a full-time student until 1995. In the fall of 1995, I passed the state exams. At that time, I only had a passport of a citizen of the USSR, which I received at the age of 16. After the collapse of the USSR, there was no sticker on the back of the passport stating that I had become a citizen of russia, as it used to be done in russia, or a stamp on the back of the passport, as was done in Ukraine: “citizen of Ukraine”.
During my studies at the Saratov Law Institute, later renamed the Saratov State Academy of Law, I never applied for russian citizenship, and I did not hold russian citizenship, and that was later confirmed by a relevant document from the russian migration service when I returned to Luhansk in April 1996, and which I presented when I obtained Ukrainian citizenship in July 1996, and later when I was employed by the prosecutor’s office of Ukraine.
In 1995, in accordance with the practice of the time, representatives from prosecutor’s offices in different regions of the russian federation came to Saratov Law Institute to select graduates. Representatives of the Prosecutor’s Office of the Republic of Karelia took an interest in me and offered me a specialized internship at the Prosecutor’s Office of Petrozavodsk, with the prospect of further work at the mentioned Prosecutor’s Office. I agreed to this offer. It should be noted that at that time, after the collapse of the USSR, the prosecutor’s offices, at least in the eastern region, were recruiting graduates of the Kharkiv Law Academy in 1995. In addition, when I started to inquire about vacancies, I was offered a position as an investigator at the Krasnodon District Prosecutor’s Office with accommodation in a work dormitory, although I had an apartment in Luhansk and did not apply for housing.
Thus, I ended up in Petrozavodsk. In total, I did my internship for about eight months and worked as a senior investigator at the Petrozavodsk Prosecutor’s Office.
Did you also not receive russian citizenship at that time?
No. As before, I had only a passport of a citizen of the USSR, without any marks on obtaining citizenship of any country of the former Soviet Union. At that time, no one in the Petrozavodsk prosecutor’s office demanded that I immediately paste the appropriate insert to my USSR passport on acquiring russian citizenship. Perhaps, the completely different mutual relations that existed at that time between Ukraine and the russian federation also played a role.
Initially, according to the legislation in force at the time, I had a residence permit in Saratov until December 31, 1995, and I started working as a senior investigator at the Petrozavodsk Prosecutor’s Office on November 1, 1995, and immediately registered in the departmental dormitory of the Petrozavodsk Prosecutor’s Office.
In addition, the algorithm of my obtaining Ukrainian citizenship is certified in a copy of F.1 form, which is a document certifying the procedure for obtaining the citizenship of the state, which I’m showing for review.
Form F.1 clearly states: “The citizenship of Ukraine was confirmed in July 1996”. The corresponding column of F.1 states the following: “has not held citizenship of other countries, former republics of the USSR, etc.”.
In addition, the issue of possible russian citizenship was subsequently repeatedly checked when I held positions in the Prosecutor’s Office of Ukraine, namely when I was transferred to the Prosecutor’s Office of Luhansk region as a prosecutor of the department for supervision of pre-trial investigation and operational and investigative activities in the internal affairs bodies, and then appointed as a deputy prosecutor of the city of Brianka, Luhansk Region. This issue was also checked when the High Council of Justice [old] appointed me as a judge for the first time in 2003.
I submitted to the HCJ [old], among other mandatory documents, this official letter issued to me on the basis of my application, from the russian migration service in Petrozavodsk when I was returning home, which reads as follows: “During staying in the territory of the russian federation, Roman Ihnatov, day, month, year of birth, a native of the city of Luhansk, did not apply for russian citizenship, did not hold russian citizenship”, signature, stamp.
By the way, when I was collecting documents as a candidate to the HQCJ, I found out that some of the documents that were not required to be submitted when appointed as a judge in 2003, later were transferred to the SJA. Accordingly, I made a request to the SJA setting out the circumstances regarding the purpose of obtaining this document or its copy. However, in response to my request I received a reply signed by the Head of the SJA of Ukraine that the documents on the appointment of judges for the first time in 2003-2004 had been destroyed for unknown reasons. Here is this request and the response from the Head of the SJA (all the documents mentioned were shown by the HQCJ Chairman during the interview - ed.) Although, according to the rules of archival work, the SJA should have kept such important documents.
In 1996 you decided to return to Ukraine...
Yes, I did. The fact is that at that time my father’s health condition had deteriorated significantly, as he was suffering from a serious illness and was a permanent group 2 disabled person. My mother asked me to come back to Luhansk because it was quite difficult for her, and I was the only child in my family. I fulfilled my mother’s request. After that, I immediately received a passport of a citizen of Ukraine. I obtained Ukrainian citizenship in accordance with the version of the Law of Ukraine “On Citizenship” of 1991 which was in force at that time, as a person who was born in Luhansk and who, after the collapse of the USSR, did not obtain the citizenship of another state — a former republic of the USSR, and who, in my case, had parents who were citizens of Ukraine, that is, by the right of soil and the right of blood.
How did your career develop further?
In Luhansk, I first worked as a legal counsel at the Oschadbank branch, and from July 1996 – as an investigator at the Leninsky District Prosecutor’s Office in Luhansk. Later, I became a senior investigator at the Stanychno-Luhansk District Prosecutor’s Office in Luhansk Region. Later, I was transferred to the position of a prosecutor of the department for supervision of pre-trial investigation and operational and investigative activities in the internal affairs and tax police, and then appointed as а deputy prosecutor of the Brianka city.
In November 2003, I was appointed as a judge of the Krasnolutsk City Court of Luhansk Region for a five-year term by a Presidential Decree. Thus, during my work at the Prosecutor’s Office of Ukraine and almost twenty years of my career as a judge, I have been repeatedly and thoroughly scrutinized, especially after the events of 2014, when Luhansk was occupied and judges who worked at the Luhansk Regional Court of Appeal were transferred to other appellate courts. The circumstances related to my acquisition of Ukrainian citizenship in 1996 were thoroughly investigated by both the Selection Commission for the Selection of candidates for the positions of members of the HQCJ and the High Council of Justice. No questions or comments were raised to me in this regard.
Captivity
In November 2014, you were captured by representatives of illegal armed groups in Luhansk. How did this happen?
By the Decree of the President of Ukraine of November 6, 2014, I was transferred from the Court of Appeal of Luhansk region to the Kyiv Court of Appeal. My elderly mother, born in 1934, stayed in Luhansk, as my family and I were initially leaving “for nowhere”. My mother refused to go with us and stayed in our apartment, which she gave me as a gift in 1995 and where she was registered.
I realized that when I actually took up my duties as a judge of the Kyiv Court of Appeal, I would never see my mother again. Unfortunately, this is exactly what happened.
On November 10, 2014, in the morning, I went to Luhansk, given that there were no bans or restrictions at that time. The purpose of the trip was to bring money and medicine to my mother. I was captured near the building of the Court of Appeal of Luhansk Region. I was detained by militants of an illegal armed group who were wearing camouflage uniforms with a red chevron with the letter “K” in the middle.
They detained me as a judge of Ukraine. They said literally: “Judge from the other side”.
At first, I was kept in a cell with my colleague and with previously convicted persons, then we were separated. I was repeatedly interrogated, first in Leninsky District Department of the Ministry of Internal Affairs of Ukraine in Luhansk Region, and then in the so-called military commandant’s office, where we were transferred. All the so-called interrogations boiled down to proposals to go over to their side, offering positions in the so-called law enforcement agencies, given my experience.
At the military commandant’s office, where we were later transferred, in the presence of a colleague, I had a conversation, if I understood correctly, with a representative of the russian defense ministry’s Main Intelligence Directorate, who asked: “Which one of you is Ihnatov?”. He had a chevron with the flag of the russian federation on his camouflage uniform and the inscription: “armed forces of russia”. All the so-called conversations, including with a representative of the russian defense ministry, сame down to one thing: an offer to go over to their side with various positions.
After my categorical refusals, in the Leninskiy District Department of the Ministry of Internal Affairs of Ukraine in the Luhansk Region, they took me to the courtyard of the district police station and simulated my execution. Then they took me to the apartment where my elderly mother was staying and сconducted a search in her presence, subjecting to moral torture. In the so-called military commandant’s office, in the attendance of my colleague, when asked by a representative of the russian defense ministry with a proposal, as he said: “why I don’t want to serve the “homeland”, I categorically answered him that I was not going to live with the stigma of a traitor.
Later I became aware that we had to thank my neighbor of our house in Luhansk, who is a dentist, PhD in medicine, who had been asked by my wife to release us, and who knew well certain people that led the so-called “luhansk people’s republic” because she had treated them in peacetime. After that, my father-in-law took us immediately to the territory controlled by the Ukrainian authorities. I didn’t even have time to say goodbye to my mother. I never returned to Luhansk again.
Judicial never-ending reforms
In your opinion, what are the problems with judicial reforms in Ukraine?
The judicial reform, in one version or another, is the longest-running reform in the history of Ukraine. I would like to remind you that the first Concept of Judicial Reform in Ukraine was approved by a resolution of the Verkhovna Rada of Ukraine on April 28, 1992. It is interesting that in many nuances it resonates with our current state of affairs in the judiciary. That is, the judicial reform, which actually began more than thirty years ago, is still ongoing. This suggests that, unfortunately, no judicial reform in Ukraine has ever fully achieved its goals. Also, it should be understood that the judiciary is always the least protected than the executive and legislative branches of government, which have powerful levers of influence, resources and form the budget the way they need.
In fact, the judiciary has only the authority of its decisions. In the eighteenth century, Alexander Hamilton, a well-known American politician and one of the founders of the United States, pointed out that the authority of court decisions in a country directly depends on the quality of the state’s laws. If there are questions about the quality of the law, this will also affect the quality of court decisions. As is known from the fundamental documents of the Council of Europe, laws should be clear, understandable and predictable. Predictability means that citizens are aware of the laws of their own country and understand the consequences of breaking the law. Therefore, the question of what is wrong with our judicial reform should be answered in the context of the existing problems of the state, including the quality of legislation.
Given the recent events in the Supreme Court, do you think the Grand Chamber of the Supreme Court is fulfilling its duties?
The main task of the Grand Chamber of the Supreme Court is to ensure a stable and unified judicial practice. Unfortunately, the Grand Chamber has repeatedly deviated from its own legal positions. In practice, this means that judges, for example, of the appellate instance, take a particular decision of the Grand Chamber as a model and develop their case law in accordance with it. Suddenly, the case law of the Grand Chamber changes and the appellate courts also begin to reconsider their previous practice and depart from their own decisions. In my opinion, this state of affairs is unacceptable.
How do you personally feel about the idea of taking the best of the EU or the USA, including legislation? That is to adopt certain laws and practices abroad and apply them in Ukraine.
As Jean-Jacques Rousseau wrote in the 18th century, a wise legislator does not start by passing laws, but by studying the suitability of the law for a given society. When a law is suitable for a particular society, it fulfills its function of regulating legal relations in the state and society. If, for example, we rewrite our Constitution like the US Constitution, there are still great doubts that we will become a country like the United States of America. Different countries and peoples have different histories, mentality, and traditions. We can say a lot about NATO and the EU, but it is obvious that despite all the integration processes, the difference between the countries that are members of these associations is often enormous. We know that countries such as Romania, Bulgaria, Albania, which aspires to be a member of the EU, and even our neighbor Poland, have their own views on certain things and do not plan to give up many of their traditions.
Vіacheslav Khrypun, Natalia Mamchenko
“Judicial and Legal Newspaper” – June 13, 2023