«I am sitting in the same office I used before»

Ukraine spends hundreds of millions of hryvnia on «ghost» courts
30 August 2023

One morning, while scrolling through Facebook, Yaroslav Hasiak, a lawyer from Lviv, noticed a post by the Supreme Council of Justice of Ukraine about terminating the powers of Oleksandr Korotkevych, a judge of the Supreme Commercial Court of Ukraine. «I was surprised and thought that it had to be a mistake or a slip of the pen since the Supreme Commercial Court was liquidated way back in 2017, so obviously, the Supreme Council of Justice (SCJ) cannot be discharging a judge of this court in 2023», says the lawyer.

Yet it turned out that the SCJ made no mistake. Dozens of highly qualified judges have been (and still are) getting nice salaries for years, although they are actually unemployed – their courts are under liquidation, so they do not work. Some even still go to work where they sit next to current judges and do nothing. Most of them don’t do even such symbolic albeit absurd gestures – they just receive UAH 60–80 thousand each month.

Yaroslav Hasiak even got an official confirmation that as of March 2023, the state spent UAH 225 million only on such judges (not considering other court employees), including UAH 55.5 million paid after the russian invasion.
Yet, this is far from being all, as NGL.media found out.

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In the summer of 2016, the Verkhovna Rada approved the amendments to the Constitution in the area of justice and the law «On Judicial System and Status of Judges», designed to reform the system of courts. For instance, it envisaged the elimination of the intermediary link between the courts of appeal and the Supreme Court – which meant the liquidation of specialized supreme courts: the Supreme Commercial Court of Ukraine (SCCU), the Supreme Administrative Court of Ukraine (SACU), and the High Specialized Court of Ukraine for Civil and Criminal Cases (SSCU). The authorities of these courts were to pass to the newly established Supreme Court, and its predecessor – the Supreme Court of Ukraine (SCU) – was to be liquidated as well.

Officially, the liquidation procedure for the SCCU, SACU, and SSCU was launched in December 2017, and the one for the SCU – in the middle of 2018. This process has not been completed yet, although it has been over five years already. It means that these courts have not been working, and the judges, listed as their employees, do not have a possibility to do justice, but they still get their salaries.

A protest of the SCU employees in 2018 after they were not allowed to go to their places of work (a photo of DW)

According to the official data of the Court of Auditors, from 2018 till the middle of 2021, it cost the state budget UAH 396.3 million, including UAH 307.8 million for the salaries of judges who did not do justice and the court employees who did not perform any duties.

As of the beginning of 2018, the total staff of the SCCU, SACU, SSCU, SCU was comprised of 930 employees (111 judges, 679 state officials, 101 care service specialists, and 39 maintenance workers). In a year, as of the beginning of 2019, the number of employees decreased to 179, including 58 judges. By the middle of 2021, the staff of these courts listed 135 employees, including 52 judges.

The abovementioned statistics of the Court of Auditors demonstrates that judges didn’t rush to quit and look for another job. At present, there are still 43 judges і this is stated in the response of Ihor Romankiv, the head of the liquidation commission, to the inquiry of NGL.media; the number of other employees is not mentioned. listed in the courts which stopped working over five years ago. The list of their names and the salaries they have received for five and a half years of doing nothing can be viewed here.

Considering the abovementioned UAH 396.3 million spent on non-working courts by the middle of 2021 as per the data of the Court of Auditors, the total loss of the budget as of late summer 2023 must have exceeded UAH 500 million.

Two supreme courts, «a small salary» and EUR 5 thousand as a compensation for moral damage

At present, there are five judges left in the staff of the Supreme Court of Ukraine. NGL.media managed to get in touch with one of them, Viktor Shkoliarov, and he saw the problem not in the fact that he was getting the salary he didn’t work for but in the fact that this salary was too small. That is why this judge, who has been paid UAH 4.4 million for five years, does not take his salary, and it gets accumulated in the deposit account of the exchequer.

«Our payroll calculations are run according to the previous law No.2453, this salary was received prior to the work of the Supreme Court. If I am not mistaken, our salary is not even on the level of the district court judge. It is approximately UAH 50-60 thousand і In fact, in recent years, the salary of Judge Viktor Shkoliarov has been UAH 78 thousand a month on average . And they should pay us as the Supreme Court judges – UAH 250-300 thousand. We are paid three-four times less, though we have not refused to work. We said, «Introduce us into the staff of the Supreme Court, give us cases to consider!», reacted Viktor Shkoliarov emotionally.

In fact, there are two Supreme Courts in Ukraine now – the Supreme Court, established in 2018, and the Supreme Court of Ukraine, which was to be liquidated in the same 2018. The matter is – the SCU judges appealed the amendments to the Constitution, believing that the changes involved only the renaming of the SCU, not its liquidation, and these judges proved their point in the Constitutional Court. In 2020, this court declared that the liquidation of the Supreme Court of Ukraine was unconstitutional.

«The systemic analysis of the amendments to the Constitution of Ukraine, introduced by Law No. 1401, demonstrates that these changes were not aimed at terminating the activity and liquidating the Supreme Court of Ukraine as a state authority due to the elimination of the word “Ukraine” – a proper name of the state – from the word phrase “the Supreme Court of Ukraine”,» says the ruling of the Constitutional Court.

Therefore, the judges of the Supreme Court of Ukraine have a right to do justice just like the judges of the Supreme Court, but they don’t have a position in the latter – so they are just waiting for the transfer. And until it happens, Viktor Shkoliarov still comes to work every day, «I am sitting in the same office I have used before. On my both sides are the Supreme Court judges, and here I am between them.»

Although the judges of the Supreme Court of Ukraine don’t consider any legal cases, they are in active proceedings of their own – for instance, they defended their rights not only in the Constitutional Court but also in the European Court of Human Rights. «The European Court ruled that the ruling of the Constitutional Court of Ukraine is legal and confirmed the violation of our rights. Each judge of the SCU і There were eight judges on the staff of the Supreme Court of Ukraine at the time. was paid EUR 5000 by the Ukrainian state as compensation for moral damage,» says Shkoliarov.

Transfer impossible to remain

There has been a failure in liquidating not only the SCU, but former supreme specialized courts as well, and they still employ 38 judges. First, they have to be transferred to other courts or dismissed, which is the area of responsibility of the High Qualification Commission of Judges of Ukraine (hereinafter HQCJU) and the Supreme Council of Justice (hereinafter SCJ).

The HQCJU conducts the selection and qualification evaluation of judges and gives recommendations regarding their transfer to the SCJ, and it is up to the SCJ to make the corresponding decision. Both the HQCJU and the SCJ were slow in their work. According to the information of the Court of Auditors, it took the HQCJU 3–5 months to compose the recommendations regarding the transfers, and the SCJ approved the corresponding decisions three months, or even a year, later.

Yelyzaveta Yevhrafova (a photo of Sud.ua)

Yelyzaveta Yevhrafova, a judge of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases, told NGL.media, «In 2018, there was a suggestion from the HQCJU to transfer the judges to other courts, which were also under liquidation. Therefore, in October 2018, the SCJ left these recommendations without any consideration and returned the documents back to the HQCJU. What is the point in transferring a judge from one court under the liquidation procedure to another court under the liquidation procedure? There is no point in doing that. I asked for a transfer to the court of appeal within Kyiv. I was recommended for a transfer to the Kharkiv Court of Appeal, [although] it had long ceased to exist.»

According to the decree of the President, in 2017, the regional courts of appeal were liquidated, and the circuit courts of appeal were established instead. The HQCJU recommended transferring the judges of supreme specialized courts to the regional courts of appeal, which were under liquidation at the time. For instance, Volodymyr Polishchuk, a judge of the Supreme Commercial Court, was recommended by the HQCJU for the transfer to the currently liquidated Kyiv Commercial Court of Appeal.

«They did everything they could in order not to transfer me,» says Volodymyr Polishchuk. «For about a month, the HQCJU could not execute the documents which were for the SCJ, and when the SCJ finally sent the documents to the President, that court had already been liquidated, and the documents came back. Then the SCJ said, ‘Well, you have been recommended for the court, which is no longer there, so there is nothing we can do.’ And the HQCJU had already been liquidated as per the law at the time.»

Volodymyr Polishchuk (a photo of bankruptcy-ua.com)

The breaks in the work of the HQCJU and the SCJ inhibited the process of transferring judges, which meant disrupted liquidation of the courts as well. In 2019, the Verkhovna Rada adopted the amendments to the law «On Judicial System and Status of Judges,» which envisaged the dissolution of the HQCJU and a new principle of its formation, but at that time, the selection process was blocked by the SCJ. To resume the work of the HQCJU, a new law had to be adopted in 2021. This time, the selection was interrupted by the full-scale russian invasion, so its completion was finally successful in March 2023, and in June, the HQCJU had its first organizational meeting.

As for the SCJ, it resumed its work only at the beginning of this year. Most of its members quit their positions just two days prior to the russian invasion in February 2022, thus expressing their protest against the integrity checks. Due to this demarche, the SCJ did not work, i.e. didn’t appoint any judges or suspend or terminate their authorities for over ten months.

What next?

«If the state requires new faces, please solve the issue about my retirement; I am ready to work on my own,» says Volodymyr Polishchuk from the Supreme Commercial Court of Ukraine. «If the state wants a judge – I am willing to work in any court. There is actually a draft law to be voted upon.»

Volodymyr Polishchuk and dozens of his colleagues from not completely liquidated courts refer to a draft law 5456-d, which is supposed to solve the issue of court liquidation and the further fate of judges still remaining in their staff. In particular, this draft law envisages the renaming of the Supreme Court of Ukraine into just the Supreme Court, thus, the judges of the SCU will automatically become the judges of the SC.

As for the judges of supreme specialized courts, they will have a possibility of getting a transfer to any court of appeal with an open vacancy without any competition. On August 22, the parliamentary committee of legal policy issues recommended that the Verkhovna Rada should adopt this draft law in the second reading.

This material was prepared with the financial support of the National Endowment for Democracy. The content of this publication is the sole responsibility of the editors and does not reflect the views of the National Endowment for Democracy.