Can Ukrainian courts break the curse of the least trusted institution?

Mykhailo Zhernakov, DEJURE Foundation (Kyiv, Ukraine)

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The judicial reform in Ukraine, which began after the Revolution of Dignity, or the Maidan Revolution, is the most comprehensive in the history of modern Ukraine, and it is for a reason.  

The rule of law and justice are among the key priorities of cooperation between Ukraine and the EU.

Article 14 of the EU-Ukraine Association Agreement states: “In their cooperation on justice, freedom and security, the Parties shall attach particular importance to the consolidation of the rule of law and the reinforcement of institutions at all levels in the areas of administration in general and law enforcement and the administration of justice in particular. Cooperation will, in particular, aim at strengthening the judiciary, improving its efficiency, safeguarding its independence and impartiality, and combating corruption. Respect for human rights and fundamental freedoms will guide all cooperation on justice, freedom and security”.

Particular emphasis on the judiciary is given in the framework of 20 Deliverables for the Eastern Partnership countries, providing that the implementation of key judicial reforms will be supported through essential measures strengthening the independence, impartiality, efficiency and accountability of the judiciary, and identifying these concrete measures.

Ukraine’s judiciary was the least trusted public institution – in 2014, right after the Maidan, less than 1% of the population trusted courts completely, whereas only 8% trusted courts somewhat. The reasons for such low confidence were also clear: more than 94% of the population think corruption is the principal issue, while the vast majority also recognizes that political dependence and impunity are the key problems of the system.

The Coalition Agreement of the Verkhovna Rada of the VIII convocation, the Government Action Plan, and the Strategy of Judicial Reform by the President were adopted. Each of these documents provided for specific steps in the direction of the judicial reform. These were aimed at three major directions:

1) making judiciary independent (ensuring that the process of appointment, disciplinary proceedings and the dismissal of judges is clear of political influence);

2) making judiciary less corrupt and more publicly accountable;

3) significant renewal of the judiciary (cleansing the system from the old untrustworthy judges and hiring the new, better ones).

The main goal of the judicial renewal was to bring people with new mindsets into the system. The vast majority of the current judges were trained and appointed either during Soviet times or shortly thereafter. Many of them still rely on the old positivist approach to understanding the law, which is based on absolute supremacy of the written law with little to no regard for human rights. The arbitrary and corrupt selection procedures of judges also did not attract people with proper mentality or motivation. Finally, for many years judges were subject to political influence, and many of them grew so accustomed to it that they do not believe the system can function otherwise.

However, the results came out different.

First attempts

The first legislative act regarding judicial reform after the Revolution of Dignity, the Law “On the Renewal of Trust in the Judiciary”, was adopted in April 2014. It aimed at cutting connections of the judiciary to the Yanukovych regime and investigating the wrongdoings of so-called Maidan judges who illegally prosecuted peaceful protesters. The law dismissed all presidents of the courts, through whom political pressure was administered and gave the judges the right to elect the presidents of the courts on their own. It also renewed the judicial governance bodies responsible for the judicial career – the High Qualification Commission of Judges of Ukraine (HQCJ) and the High Council of Justice (HCJ). The law was only marginally effective. The HQCJ and the HCJ were completely re-staffed, but it did not lead to a significant increase in the quality of decision-making on judicial careers which remained heavily politically influenced. 80% of the courts reappointed the same presidents who administered pressure on judges, to their administrative positions. This showed that the majority of the judiciary was comfortable enough under the previous system and preferred to be controlled. The investigations on “Maidan judges” was not very effective either. The special Commission created to investigate the wrongdoings of more than 300 judges failed to do so due to the obstacles from the Parliament and the High Council of Justice.

Another law of 2015 “On ensuring the right for a fair trial”, developed and submitted by the President, did not improve the situation either. The qualification assessment of all the judges it established was not effective under the constitutional provisions. At the time it did not even require that the judges explain the origins of their assets. For this and other reasons, in order to achieve progress in the reform, the section of the Ukrainian Constitution regarding judiciary had to be changed.

Legislative breakthrough

From the point of view of legislation Ukraine has made significant progress. After the adoption of the two first laws in 2014 and 2015, the Constitutional amendments regarding judiciary were adopted.  

Many of the constitutional amendments concern institutional building of the judiciary as a whole, including courts and judicial governance bodies. To address the issue of judicial independence, a number of European standards were implemented. That included lifetime appointment of judges; limitation of the political (the President’s and the Parliament’s) authority to decide on judges’ careers; the introduction of the new High Council of Justice with judges elected by their peers constituting the majority. All these measures were supposed to contribute to increasing judges’ independence, shifting the decision-making powers on judicial careers from political establishment to judicial self-governance bodies. However, back then the experts warned that the self-governance rule of “the majority of judges elected by judges” for judicial councils, which was adopted following the recommendations of the Council of Europe bodies, bears great risk to public accountability of the judiciary in itself.  

The provisions of the amended Constitution stipulated the possibility of transition to the simplified three-tier court system in compliance with the numerous recommendations of the Venice Commission. This contributed to the system becoming more efficient since the final ruling is delivered faster.

The big debate arose when different actors involved in the judicial reform developed different approaches to the matter of the renewal. The Judicial Reform Council and the Constitutional Commission were sticking to the vetting procedure provided for by the presidential 2015 law. The expert community, however, proposed to gradually create the court system from scratch with a competitive selection procedure for each judicial position, starting with the creation of the new Supreme Court. This suggestion was based on the successful examples of two law enforcement agencies: the National Anti-Corruption Bureau and the Patrol police, where new bodies were created with the new legislative framework, new principles, new equipment, and most importantly, new people.

The decision was a compromise. The new edition of the Constitution allowed for the possibility of the dismissal of the judges if the new courts were created or the courts were reorganized, as well as in the case of the mismatch between the income and the assets of the judges. The obligation to prove the legality of the assets was also put on the judges. However, the new edition of the Constitution did not set any definite action nor offered a timeframe for the creation of the new courts.

The new edition of the Law “On Judiciary and Status of Judges” was proposed and adopted simultaneously with the constitutional amendments. It provided for the creation of the new Supreme Court from scratch instead of the old Supreme Court of Ukraine and three High specialized courts, as well as the creation two new courts – the Anticorruption (AC) court and the Intellectual property (IP) court. Therefore, the suggestions of the civil society experts were taken on board only partially and concerned an important, but a very small part of the judges. More specifically around 200 new judges would have to be selected to the new Supreme Court and several dozen more to the AC and IP courts.  The rest of the system (around 8000 judges at the time) had to be screened through the qualification assessment procedure. No new competitions to any of the appeal or first instance courts were provided for.

The new edition of the law, however, had two more novelties proposed by the civil society: 1)  the declarations of integrity and family relations of the judges and 2) the creation of the Public Integrity Council. The latter is a 100% civil society body responsible for the integrity checks of the judges, a sort of the screening procedure and a “veto right” to judicial career by the public. This idea originated after the first unsuccessful attempts at the qualification assessment of the judges who passed the qualification assessment with ease despite the obvious mismatch between the property and the income or other facts that prove their lack of integrity. The Council consists of 20 people (lawyers, legal scholars, journalists, human rights activists) and has a mandate to issue respective conclusions if the judges or a judicial candidate does not qualify with the integrity criteria. However, the Council does not have any decision-making power on its own. The conclusions are later considered by the High Qualification Commission of Judges of Ukraine and can be overruled by its ⅔ majority.

Global Solutions, Local Damages

The article under the same name by the two Czech experts, Michal Bobek and David Kosar, examines why, how, and with what results have judicial councils spread under the influence of European institutions throughout Central and Eastern Europe in the last twenty years. It traces back how “the judicial councils, themselves just one possible form of administration of courts, have emerged as the recommended universal solution Europe-wide and internationally”. It is suggested that in the countries in transition, such as Hungary or Slovakia, the impact of the implementation of the judicial councils under the self-governance rule of “the majority of judges elected by judges” on further judicial and legal transition has been either questionable or outright disastrous.

Unfortunately, Ukraine did not become an exception here either. While the judiciary in Ukraine is still the least trusted public institution, both judicial councils it has, the High Qualifications Commission of Judges (the HQCJ) and the High Council of Justice, have now more than a half selected by the Assembly of Judges, with the HQCJ having ⅔ of judges in its composition. Instead of giving judges more independence and becoming the agents of change, these bodies became the main obstacle to the effective reform implementation.

The main process of the reform – the Creation of the new Supreme Court – has failed.

Almost 80 per cent of new Supreme Court (SC) judges have been judges before, even though the process was highly advertised as the way of attracting “new blood” from the Bar and the academia to the highest judicial authority. At least 30 “new” judges did not meet the basic integrity criteria (based either on the property or declaration requirements or connection to human rights abuse or other improper deeds), but were selected as winners of the competition by the HQCJ and greenlighted by the HCJ as the new SC judges. Civil society thoroughly analyzed this process and called for more transparency and objectivity, as well as higher standards for the assessment, but to no avail. As a result, out of 119 judges appointed to the Supreme Court, at least 30 severely lack integrity, and the Court itself is managed by the same people who headed the notorious High courts that were liquidated.

The second round of the competition to the Supreme Court where 78 judges have to be selected had the same problems, with at least 16 untrustworthy judges  recommended for the appointment.

In the qualification assessment of the lower courts, the HQCJ significantly lowered standards and jammed hundreds of interviews into a few months. As a result, out of roughly 2000 judges the HQCJ examined, only about 8% were found not qualified for the position. The Public Integrity Council called this “fake” and “window dressing,” and suspended its participation in the qualification assessment.

What is even more staggering is that the few righteous judges who actively oppose corruption are prosecuted by the same governance bodies that were supposed to protect them. Judge Larysa Holnyk, who filmed and revealed an attempt to bribe her by a representative of the mayor of Poltava, was not only physically attacked, but was disciplined by the HCJ that barred her from taking part in the competition to the Anticorruption Court. Judge Vitaliy Radchenko, who gave permission to search the luxurious mansion of the notorious head of the District Administrative Court of Kyiv, Pavlo Vovk, was also disciplined, and his wife, also a judge, was dismissed as a result of a disciplinary proceeding by the HCJ shortly after the warrant was issued.

But this is hardly a surprise, given that a lot of the HCJ members’ integrity is questionable. Palvo Hrechkivsky was accused of trying to settle a case in a court for $500,000 with the then president of the High Commercial Court of Ukraine (and now Deputy Head of the “new” Supreme Court Bohdan Lvov), but still serves as an HCJ member. The Rada’s appointment of Oleksiy Malovatskiy, a Poroshenko Bloc nominee, was allegedly based on bribery, as a recent investigation revealed. The head of the HCJ, Ihor Benedysiuk, appointed by Poroshenko, still cannot prove he gave up his Russian citizenship after being a judge in Russia before 1994, and was awarded a state award by the President in the direct contradiction to the Law. These facts did not bar him from winning the second round of competition to the “new” Supreme Court, however.

This all proves that the “the majority of judges elected by judges” rule for judicial governance in Ukraine only leads to the preservation of problems in the judicial system, such as corruption and dependence on political power. As a result, the level of confidence and support of the judiciary remains critically low – at 8%.

What’s next?

In order to overcome these problems,  the composition of the judiciary bodies needs a substantial revision. A greater number (50% or more) of civil society representatives in these bodies is required with the simultaneous extension of the mandate of the Public Integrity Council. The latter was recently supported by the Ambassador of the US to Ukraine Marie Yonanovitch.

Another way to improve judicial governance and hence the results of the reform would be to expand the mandate of the Council of International Experts who did an exceptional job vetoing the bad candidates to the Anticorruption Court which has a good chance to become a counter-example of judicial selection. Both ideas are largely supported by the Ukrainian public. When asked “whom would you entrust the renewal of the judiciary?”, 47% say “the representatives of the public”, and around 30% say “independent international experts”. Only 8%  would trust judges from judicial governance bodies.

Obviously, the judicial vetting has to be restarted, at least in the cases where the judges had the negative review by the Public Integrity Council, but easily passed the interview with the fellow judges. These ideas, as well as some others, are reflected in the “Justice reforms agenda”, developed and supported by the 24 leading NGOs and already supported by a number of presidential candidates.