“The evil ethos of impunity and corporatism has been broken” – expert about Ukraine’s judicial reform

Oleksandr Vodiannikov, Constitutional Commission, Judicial Reform Council, OSCE Project Coordinator in Ukraine. Photo: Hromadske Radio

Oleksandr Vodiannikov, Constitutional Commission, Judicial Reform Council, OSCE Project Coordinator in Ukraine. Photo: Hromadske Radio 

Analysis & Opinion

Article by: Interview by Anatolii Shara

As the final stage of the Supreme Court selection is coming to its end in Ukraine with reform advocates warning that 25% of them are dishonest, and activists complain that 90% of judges prosecuting Euromaidan activists are unlustrated, Euromaidan Press sat down with Oleksandr Vodiannikov, one of the insiders of the judicial reform who is engaged in the Constitutional Commission and Judicial Reform Council, and OSCE Rule of Law Project Coordinator in Ukraine, to get a wider picture of whether Ukraine is moving towards establishing what no democratic society can do without – an independent judiciary.

A great number of people hoped the Euromaidan revolution would eradicate corruption. The reform of the judicial system is considered to be crucial in this regard. Can we say that Ukraine has made successful reforms in this direction?

“I think that public scrutiny, transparency, accountability, decent remuneration, and self-respect are key ingredients in preventing corruption and undue influence on the judiciary.”

The Euromaidan revolution brought a great promise of a new governance, free of corruption and political gambling. Compared to the previous Orange revolution of 2004, when the nation protested against the abridgment of its right to vote, the Euromaidan revolution emerged as a nation-wide protest against a corrupt regime, against the blatant disregard of the nation’s hope and strife for a better democratic future. Mr. Yanukovych and his entourage personified this regime but they were not its architects. The regime emerged as a logical outcome of the unfulfilled promise of the Orange revolution.

Mr. Yanukovych and his entourage personified this regime but they were not its architects. The regime emerged as a logical outcome of the unfulfilled promise of the Orange revolution.

On a paradigmatic level, this should be borne in mind when analyzing what’s going on in Ukraine in various spheres from civil society to the provenance of national governance and reforms.

During the Revolution of Dignity, the dire state of the national judiciary became obvious. With certain exceptions, like dissenting judge Viktoria Matsedonska from Kyiv Administrative Court of Appeals, the judges in a servile manner banned peaceful assemblies, adjudged administrative and criminal penalties on protesters, disregarded the inhuman treatment of activists by the police and paramilitary groups of the regime.

Such blatant disrespect for the rule of law and human dignity caused a strong public outcry and demand to bring those responsible to account and put in place safeguards against a repetition of such shameful misuse of judicial offices. Therefore, society indeed harbors grand expectations as to swift and fundamental changes in the judiciary. And indeed it is a challenge for those responsible for the reform to meet these expectations.

To their credit, the way opted and reflected in various reform documents and reformers’ minds is promising: the reform is conceived to affect three core pillars: legislative (including the Constitution), institutional, and human resources.

The first reflection is that the judicial reform kicked off.

Here we can witness promising progress under the first pillar: the Constitution has been amended and a comprehensive reform law has been adopted. Under the third pillar, the open competition to the would-be Supreme Court passed the crucial stage and the shortlist has been submitted for High Council of Justice’s review and final approval, a new competitive selection has been opened for 600 judgeships in the first instance courts, etc.

But the question remains: is the reform far-reaching and will meet Euromaidan’s Grand Promise or will it end up far-out?

Two years ago I asked US Ambassador Geoffrey Pyatt to give a motto to those who are involved in judicial reform. He put it short: “Do it right!” As I see there is a genuine desire to do the reform right, but whether it goes right can be assessed only from a distant perspective of several years. What can be definitely said right now is that the reform has its first success stories and first lessons to be learned. I am confident that any success of the judicial reform should be measured not only against the positive change in the general perception of the judiciary, not only against the steady drop in appeals to the ECHR from Ukraine but – more importantly – on the aptitude and willingness of those in charge to learn these lessons.

As I see there is a genuine desire to do the reform right, but whether it goes right can be assessed only from a distant perspective of several years. What can be definitely said right now is that the reform has its first success stories and first lessons to be learned. I am confident that any success of the judicial reform should be measured not only against the positive change in the general perception of the judiciary, not only against the steady drop in appeals to the ECHR from Ukraine but – more importantly – on the aptitude and willingness of those in charge to learn these lessons.

Practically, from the very beginning of the reforms, there were difficult discussions on the question of what kind of judicial system Ukraine needs. Some experts defend the previous one which consisted of four elements, others stood for three elements system. Could you please explain the fundamental differences and what was so bad with the previous?

Well, in retrospective, since 2014 there was a general consensus in the expert community that the judicial system required fundamental reform to get rid of four instances. The debate you referred to was waged with the proponents of higher courts who, while sharing the view that the system requires reform, strived to preserve the higher courts and their competences.

Editor’s note. As of now, the judicial system started to consist of four instances.

  1. the local courts;
  2. the Court of Appeals;
  3. the Court of Cassation, or the High Specialized Court
  4. the second level of Cassation – the Supreme Court.

The judicial reform envisions removing the third instance, the High Specialized Court.

Just to remind, before the so-called small reform of 2015 that managed to ameliorate some of the systemic problems of the judiciary, any case firstly tried by a first instance court could proceed via appellate court to the High Apecialized Court as court of cassation and if a party to such a case could persuade the High Court, the latter could grant leave to have the case submitted to the Supreme Court of Ukraine for the so-called second-tier cassation on enumerated and limited grounds.

In other words, the Supreme Court’s competence was subordinated to the goodwill of higher courts. This included also cases that originated from the ECHR judgments. This system as appears was tuned, inter alia, in anticipation of ECHR judgements in politically motivated cases such as Lutsenko’s and Tymoshenko’s to block or at least protract their enforcement in Ukraine via the higher courts.

Because the Yanukovych regime had an irrational disgust with the Supreme Court – the disgust that dated back to the Orange Revolution when the Supreme Court opted for a legal solution to the 2004 presidential election conundrum – the first reform after the 2010 presidential elections focused on the judiciary and developed the four instances system (first instance – appeals – cassation by higher courts – Supreme Court review) and three jurisdictions (civil and criminal jurisdiction – administrative jurisdiction – commercial jurisdiction) within the general court system.

This made the judicial system clumsy, misbalanced and ineffective. When the reform outline was discussed in the Judicial Reform Council established by the President in October 2014 as a vehicle to generate reform vision and concrete proposals, a general consensus emerged on three pillars of the reform:

  1. effectiveness in terms of ensuring fair trial rights;
  2. efficiency in terms of budgetary expenditures;
  3. user-friendliness in terms of legibility for customers seeking judicial dispute resolution or judicial protection.

Viewed from this point, the 2016 reform appears to be quite promising. It will eliminate duplication and uncertainty over specialized jurisdictions (including dismantling higher specialized courts) and clearly define the role of the Supreme Court as the highest court in the system. Hence the system will become simplified and legible with three instances in place (local courts – courts of appeal – Supreme Court). Court specialization will be retained only on the first and appellate instances level with two higher courts to be established – Anti-corruption and IP courts.

Regarding the judicial reform, I’ve come across information that Ukrainian courts are overwhelmed with cases, as there is a serious lack of staff at them. Are these consequences of post-reform shock, with the system inevitably reaching the planned trajectory of development after the purification process? Or is the problem much more complicated?

The HR crisis that manifests itself in the judicial system didn’t appear yesterday. This is a natural outcome of the painful process of self-purging of the judiciary. 

The HR crisis that manifests itself in the judicial system didn’t appear yesterday. This is a natural outcome of the painful process of self-purging of the judiciary. The first wave of resignations occurred in 2014 after the Revolution and culminated in 2016 after the Constitutional Court’s judgment in case of judicial allowance.

The situation was aggravated by the deliberate inaction of the Parliament to appoint so-called 5-year judges to life tenure under the procedure applicable prior to the 2016 constitutional reform.

The state of the national judiciary is dire, indeed. The number of dysfunctional first instance courts increases and the understaffing in the appellate court is troubling. The High Qualification Commission of Judges (HQCJ) exerts every effort to reshuffle the judicial corpus and temporarily reassign judges to dysfunctional courts. New recruitment to 600 judgeships in the first instance has started to fill current vacancies.

But the situation, I think, will remain critical despite these efforts until a qualification assessment of the incumbent judges is finished and a new optimized judicial map of Ukraine is passed through the Parliament. It is extremely important that the HQCJ opts for simultaneous qualification assessment of incumbent judges and competitive recruiting to judgeship vacancies. Such an approach warrants against and anticipates the situation when the administration of justice is suspended.

For the first time in the modern history of Ukraine, there was an open competition to the Supreme Court. The Public Integrity Council (PIC) took an active part in it but scrupulously analyzed the competition itself, resulting in a conflict with the High Qualification Commission of Judges. Do you think is this conflict institutional by its nature or there are completely different reasons?

I would not term the state of play between the Public Integrity Council (PIC) and the High Qualification Commission of Judges (HQCJ) as a conflict. Though, your point is valid – there still exists some visible tension between the PIC and the Commission. The PIC was established as an advisory body to the HQCJ to serve as a kind of vox populi in selection procedures, but with the final say in shortlisting being with the HQCJ. Overall, both the HQCJ and PIC managed to sustain good working relations within the judicial selection procedures. In my opinion, some prosecutorial bias manifested itself in the PIC work, and in quite emotional reactions to HQCJ’s overcoming PIC’s negative opinions. But again this is the lesson to be learned by both the PIC and the HQCJ.

More: Will Ukraine finally have a new judiciary? Explained by the Public Integrity Council

Was the involvement of the PIC to the competition fully justified?

 Judges realized that all their activities may be subject to the scrutiny of civil society.

The engagement of the PIC had an overall positive impact on the competition to the Supreme Court judgeships. But what is more important, this engagement has a powerful spillover effect on the judiciary in Ukraine. Judges realized that all their activities may be subject to the scrutiny of civil society.

Thus, the evil ethos of impunity and corporatism has been broken. And in my opinion this is the outcome that is even more important than the Supreme Court selection.

The shortlist finalized by the HQCJ includes 30 candidates who received PIC negative opinion. But such opinions, being important, are not conclusive. To simplify, the PIC can be compared with the public prosecutor in judicial process while the HQCJ as the bench to decide whether the prosecution meets the burden of proof. If not, acquittal is to follow. A similar role is assigned to the PIC by applicable legislation. In 30 cases, the PIC, in HQCJ’s opinion, failed to meet the burden of proof. Therefore, to label these 30 candidates as not meeting integrity standards is indeed a deliberate manipulation. The same as to say that all the rest are unquestionably impeccable.

The PIC is blamed in lacking clear standards and criteria in assessing the integrity of the candidates. And this is partially true. The PIC, formed a couple of weeks before the launch of the competitive selection to the Supreme Court, failed to develop its own methodology and assessment criteria.

But it would be dangerous to try to fit it into a rigid legalistic grid of statutory defined integrity requirements. As one cannot easily define justice, one cannot define integrity. But what is contrary to the notion of integrity can and should be set out.

And now is the right moment to build on the work of the PIC and HQCJ and set at least the negative criteria of what falls short of the integrity criterion.

Once again, the PIC’s modus operandi is to collect, verify, and analyze information about candidates for a judgeship and deliver a reasoned opinion if the appointment of a certain candidate may be perceived by the society as jeopardizing public trust towards the Supreme Court.

To put it simply the PIC should do a vetting process/ background check of the candidates.

This should have also included cronyism, liaisons with political factions and politically exposed persons, evidence in the public record of a judicial candidate’s views, courage and ability to withstand the whims of public/political opinion, reputation, written records, to name a few.

But we should not overlook the limits of the PIC’s resources and pro bono character of the members of the PIC. To cope with such tasks the PIC should have sufficient resources. And this is another lesson to learn and venue for legislative improvement.

Read also: “Ukraine finally to have independent judiciary.” Interview with Head of Qualification Commission of Judges

78% of the judges at the new Supreme Court are from the old system. How should an ordinary citizen accept this figure? There was no renewal? You said that there was a chilling effect for the judges from the general public, but can fear be considered an influential tool for creating an independent judicial system?

The influx of new blood from outside the judicial system is indeed unprecedented as compared to previous practices.

Well, the result you refer to was anticipated. The Judicial Reform law passed by the Parliament in June 2016 has a strong bias towards candidates from the judicial system. Just to mention, it was much easier for a judge to submit required documents than for a member of the bar or the academics who were required to prove each year of practice with supporting documents.

Moreover, the doors of the Supreme Court were closed for lawyers who opted to not deal with corrupt courts or minimise any encounters with the judicial system to preserve their reputation and honesty. Many eminent lawyers were, thus, disqualified. So the results are predictable.

But I do not see any problem in that 78% of the candidates are judges or retired judges. The influx of new blood from outside the judicial system is indeed unprecedented as compared to previous practices. And this I think can have a positive effect on the jurisprudence of the new Supreme Court.

And immediately here is the question about the Prosecutor’s Office. As we may see there is no visible progress at reforming this institution. Is it fair to say that the creation of the Supreme Court, botched reform of the Prosecutor’s Office, and the monopoly of lawyers would lead to an imbalance in favor to the rich and powerful, but not to the defense of the ordinary citizen?

Public scrutiny, transparency, accountability, decent remuneration, and self-respect are key ingredients in preventing corruption and undue influence within the judiciary.

The prosecutorial reform is still pending. There is one positive sign in this area – the newly established Qualification and Disciplinary Commission of Prosecutors (QDCP) staffed with proactive personalities from both within and without the prosecutorial system.

This gives hope for further dismantling the sinister legacy of the Soviet-styled uncontrolled and unaccountable “fourth power” in Ukraine. This is what we in the Constitutional Commission embedded into the Constitutional Reform of 2016: to have key actors of the process (the prosecutor and the defense) on equal footing.

Referring to the “monopoly of lawyers,” I indeed agree that to read the constitutional amendments in such a way tends to misbalance the judicial process. But what is meant under the monopoly penumbra is to hold the bar accountable for the quality of legal services provided, to ensure higher standards of legal services and ethics, and thus ensure fair trial rights. Here much will depend on the strategic vision on reforming the bar as well as on further enhancing the legal aid system in Ukraine.

What would motivate the people to work without corruption and be independent?

There is no ready for all recipes. But I think that public scrutiny, transparency, accountability, decent remuneration, and self-respect are key ingredients in preventing corruption and undue influence within the judiciary.

What should be taken into account at the following amended version of the law on “The Judicial System and on the Status of the Judges”? What recommendations would you give regarding the following competitions to the Appellation Courts, local courts?

I think that the carried-out competitive selection should be carefully studied, in terms of both rectifying legislative drawbacks and lacunae and tuning the bylaws and procedures. As the Supreme Court selection process has shown, the PIC composition and capacities should be enhanced with due care to the conflicts of interest. Thus, I think practicing lawyers should be disqualified from PIC membership, PIC members should be compensated for their work and efforts but in a manner that would preserve their independence.

The transparency in HQCJ selecting judges has been unprecedented. But unprecedentedness does not mean sufficiency.

And this relates foremost to the HQCJ’s disclosure of its decisions on concrete candidates, especially when the HQCJ disagrees with the PIC. As well, additional transparency should be injected into the candidates’ assessment procedures.

This will allow a proper accumulation of practice and lessons learned, as well as to enhance public trust towards the HQCJ and the selection results. And finally, another key thing I would like to mention is the need to ameliorate the pro-judge bias of the law, especially if we are talking about the highest judicial institution dealing with issues of law, not fact. The competitive selection to the Supreme Court is detailed, complex, and thorough, allowing assess all key features of a candidate running for the Supreme Court judgeship. The wider the doors are opened, the more eminent high professional lawyers from without the judiciary will run for judgeship

Before this reform, an ordinary citizen had no real access to the Constitutional Court. Now we see the introduction of the constitutional complaint. How will it work? How productive is it going to be?

Well, prior to the 2016 Constitutional reform, ordinary citizens had only indirect access to the Constitutional Court, either via ordinary courts if the Supreme Court agrees to submit his or her case to the Constitutional Court, or via the Ombudsman who chose whether to submit a law to the constitutional review or via the so-called “official interpretation of laws” procedure. Neither venue worked efficiently.

Since 1996, when the Constitutional Court was established, only two cases from ordinary courts ended up in the Constitutional Court docket with more than 500 cases under the lustration law remitted to the constitutional review in 2015. In Lithuania, to compare, approx. 80% of the Lithuanian Constitutional Court workload originates from the country’s judiciary.

Having ineffective access to the constitutional review home, Ukrainians lead the top in Strasbourg.

To address the situation, the Constitutional Commission, while elaborating the 2016 constitutional amendments, reached a wide consensus on the necessity to have an equally effective remedy at home and to have the Constitutional Court doors open to everyone seeking protection of his or her constitutional rights.

Much of the debate centered on what the constitutional complaint should be like. The constitutional complaint introduced in 2016 will become operative shortly with the adoption of the new version of the Law on the Constitutional Court of Ukraine. It will allow everyone upon exhaustion of available national remedies challenge any law applied in his or her case as contrary to rights and freedoms guaranteed by the Constitution. This is probably one of the most important tools for reforming the legal system.

In June this year, at the 5th International Judicial and Legal Forum held in Kyiv, the retired chairman of the Moldovan Constitutional Court Alexandru Tănase during the expert panel discussing constitutional complaint made an extremely valid statement: “With the introduction of constitutional complaint, you will soon not be able to recognize your legal system!,” referring to the huge positive potential of this institution.

I fully subscribe to this assessment. The Constitutional Court has already made a tremendous step towards the smooth operation of the complaint system in 2016 two landmark judgements – in the Psychiatry Law case and Religious Assembly case. Then, the Court used the doctrine of friendly treatment of international law and committed itself to interpret the constitutional rights and freedoms enshrined in the Constitution consistently with the ECHR jurisprudence.

But here the success story ends. The proper operation of the constitutional complaint will largely depend on the professional corpus of constitutional judges. And here we witness troubling signs of systemic crisis of the Constitutional Court today.

Since the beginning of this year, the Court has been unable to adopt any judgment, as well as to elect its chair. Among the incumbent judges, only a couple have the relevant constitutional law background, and as I see, the success story in the cases above is largely due to personal efforts of the judge-rapporteur Mr. Stanislav Shevchuk, who previously served as an ad hoc judge at the ECHR and was elevated to the constitutional judgeship immediately after the Euromaidan revolution.

Being aware of this situation, when drafting the new version of the law on the Constitutional Court, the working group of the Judicial Reform Council inserted a sunset provision establishing for a limited transitional period, and for the special advisors roster to be recruited from retired judges of the European constitutional courts and constitutional law experts of international organizations. I hope that special advisors will inject new approaches and support the Court in further aligning its jurisprudence with best international practices.

What will happen if the Verkhovna Rada [Parliament] will not adopt the new Procedure Codes? Will it lead to the distortion of the system which suffered from several powerful blows?

The danger of the no vote for the procedural reform and its impact on the judicial reform, in general, cannot be underestimated.

For the new Supreme Court to become full-functional the judicial reform law establishes two conditions:

  1. at least 65 judges appointed;
  2. procedural legislation regulating the operation of the new Supreme Court adopted.

The new Supreme Court can be set up after the President issues judicial nomination decrees, but the old Supreme Court, as well as all other higher courts, cease to operate only after two mentioned conditions are met. So if the new Supreme Court judges assume their offices, but the procedural reform is still stuck in the Parliament, Ukraine will have an absurd situation of having 5 higher courts in place (the new and old Supreme Courts and three higher courts). This will not only have a detrimental impact on the judicial system but also will lead to deep disappointment among the general public and a drop in the support of the reform.

Another question is: are these Procedure Codes so much needed and progressive? What will the society get from their introduction?

The procedural reform is ripe for implementation. It will address many pressing issues ranging from simplification and unification of judicial process to an e-court. The Judicial Reform Council that was in charge of this brave move conceived the reform package as an important ingredient of the general judicial reform that is intended to make the judicial process user-friendly, legible and speedy.

The new judges of the Supreme Court will have to resolve serious issues not only regarding the standardization of the jurisprudence, but to restore the feeling of justice in society, in the relations between business, and the government. Will the new judges of the Supreme Court be guided by the Spirit of Law and not the formal approach to its usage? Are they ready for this?

The majority of those candidates who received negative opinion from the PIC will be the most prudent and honest judges: they face a personal challenge to prove to society that the allegations raised against them have no ground

I can only guess how the new judicial corpus of the Supreme Court will tackle the problem. 120 judges (and I assume that the High Council of Judges will decrease this number upon its review of the shortlist of candidates) have a diverse background, humor, and legal views. But I am confident that, having undergone tough public exposure and scrutiny, having passed challenges of competitive selection, they will preserve their ethos of independence and professional self-respect to serve effectively as the highest arbiters, to be guided by the spirit of the law, not its black letter.

And also a small personal reflection – I think that the majority (not all, unfortunately) of those candidates who received negative opinion from the PIC but nonetheless declared by the HQCJ as capable to serve in the Supreme Court will be the most prudent and honest judges: they face a personal challenge to prove to society that the allegations raised against them have no ground. The society also will closely follow their behavior and judicial activities.

When will the period of transitional justice be finished and the next stage started? What must be done for this?

Transitional justice is the name of the adopted judicial reform. It was conceived to redress legacies of human rights abuses and disrespect of the rule of law and to be responsive to society’s desire to rebuild social trust, repair the justice system, and build a democratic system of governance.

But the fragile political compromise of May 2016 led to embedding permanency into purely transitional justice arrangements, though the Constitutional Commission set clear milestones when formulating transitory provisions that enshrined transitional justice arrangements.

But, you are perfectly right that the transitional justice arrangements may not last long. I assume that upon the last of the incumbent judges assessed and new judicial map in place with amalgamated court circuits and simple but fair procedures the transitional justice period in the history of Ukraine’s judiciary should seize.

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