Two years of judicial reform in Ukraine were faked, money wasted – civil society watchdog

In March 2018 members of the Public Integrity Council unanimously decided to withdraw from the judge qualification assessment. Photo: uacrisis.org 

Civil Society, Reforms, Ukraine

Editor’s Note

After the 2014 Revolution of Dignity, Ukrainian society demanded justice. However, after the overthrow of the Yanukovych regime, the judicial system saw little change. Thus judicial reform became a top priority for the new government. One of the changes most clamored for was the inclusion of civil society in the procedure. On the eve of the fifth anniversary of the revolution’s start, representatives of civil society say that they have been ignored and that the reform itself was faked. As they see it, the solution may involve forming new judicial self-governance institutions in line with new principles.

The reform was initiated by Ukrainian President Petro Poroshenko. After the Euromaidan revolution, a number of laws on the judiciary including changes to the constitution were adopted.

Ukraine’s law “On the Judiciary and the Status of Judges” foresaw the creation of a Public Integrity Council (PIC), an institution made up of representatives of civil society. Its aim was to assist the High Qualification Commission of Judges (HQCJ), the body of judicial self-governance, in identifying the compliance of judges to the criteria of integrity and professional ethics.

On November 6, the PIC members organized a conference to present conclusions on their two years of work. Despite high expectations, cooperation between the civil society represented by the PIC and the HQCJ has been anything but fruitful. The disconnect became evident in March 2018 when the procedure of qualification assessment for judges as foreseen by the law was launched.

Just prior to this, the HQCJ changed their own regulations, adding additional demands for the PIC. Firstly, the HQCJ had no right to change its requirements to the PIC. Secondly, these new requirements, in fact, blocked the PIC’s work. The PIC unanimously decided to withdraw from the judge qualification assessment and applied to the Supreme Court. In September, the court ruled that the HQCJ actions limiting the work of the PIC were unlawful.

Nevertheless, the qualification assessment of judges proceeded in the latter half of the year. It was held solely by the HCQJ without the official participation of the PIC. At the same time, Ukraine’s western partners initiated a mediation between the two bodies.

The coordinator of the PIC, Halyna Chyzhyk, voiced five main problems regarding the assessment:

  • Its unrealistic schedule;
  • Lack of procedural transparency;
  • Conflicts of interest admitted by the HQCJ;
  • Unlawful changes to the regulations which limited the PIC’s participation;
  • Changes in the methodology of the HQCJ, according to which it excluded itself from giving assessment on the so-called Maidan judges (those which judged activists during the Euromaidan Revolution).

“There were about 20 meetings during the mediation process. The HQCJ outright refused to discuss the questions of conflicts of interest and lack of transparency. Agreement on any other questions was not reached,” said Chyzhyk.

Despite this, during the last half of the year the HQCJ assessed around 2,000 judges. In terms of the PIC’s informal participation in the process, they made 81 conclusions regarding judges they felt did not meet the criteria of integrity and professional ethics, and provided the HQCJ information regarding 67 more judges.

43 of the so-called Maidan judges (those who presided over sentencing of activists during the Euromaidan revolution) successfully passed the qualification assessment,” said journalist and the PIC member Yevheniya Motorevska.

One of the most scandalous ones is Viacheslav Deviatko, a judge who sentenced activists during the 2014 Euromaidan protests and had the driving licenses of those who participated in driving rallies to the residence of disgraced President Yanukovych seized. Another judge, Olena Juravska, also seized activists’ driving licenses and was responsible for sentencing a 19-year-old old who was farcically accused during his trial of attacking the infamous Berkut law enforcement unit known for cruelly beating protesters during the Euromaidan revolution. However, his only ammunition was a helmet. Yet other judges who the assessment OK’d were involved in corruption scandals.

“The aim of society’s involvement should have been to provide the right to a fair trial and restore trust in the judiciary, according to the explanatory note of the law. We could not have done it due to many subjective and objective reasons. One of these is the HQCJ’s reluctance to cooperate and act properly. They should have started a discussion and provided arguments for their position. We haven’t seen this during the past two years. We have only one conclusion – this format should be changed according to European practices,” said lawyer, the PIC member Vitaliy Tytych.

In their statement judicial experts repeatedly pointed to the need to change the rules on forming judicial self-governance institutions.

The majority of the government did not really want to change the judiciary. They still want to keep it as a tool for the elections. Also, there is an institutional problem: we unfortunately placed the implementation of reform in the arms of the same old judges that we would like to change. We adopted the Council of Europe standard of majority of judges being elected by judges in the judicial governance bodies too soon. It is not a bad standard, but it is not the right time to adopt it here in Ukraine. Because there is a clear conflict of interest,” said Mykhailo Zhernakov, the head of the DEJURE Foundation and a member of the PIC at the Launch Event: Transatlantic Task Force on Elections and Civil Society in Ukraine.

Chyzhyk explained to Euromaidan Press that formally the institutions have no political influence – the Verkhovna Rada [the Parliament] is eliminated from the process and the president only has a ceremonial role. Nonetheless, there is still strong informal political influence on the HQCJ and the High Council of Justice, another body of judicial self-governance.

“There are people in these bodies who are ready to keep implementing orders. For example, a member of the HCJ, Oleksiy Malovatskiy, used to work as a lawyer at Poroshenko’s headquarters. Journalists saw HCJ members and Serhiy Koziakov [the head of the HQCJ]  at midnight near the President’s office. They were saying that meetings on judicial reform were ongoing. However, the decisions they took leads us ever further to conclusions that there is political influence, and some people are being protected. Even if you take a look at the appointments for the Supreme Court, you’ll see that there are people who are beneficial for the President’s office,” Chyzhyk said.

Another PIC member, Natalya Sokolenko, stressed that the reform is not a question of financial support.

“Money from the state budget and our international partners has been wasted. And somebody should be held responsible for it. Obviously it’s the initiator of the judiciary reform, the President of Ukraine and the HQCJ who directly took the decisions which have led to the reforms failing. Now the main task for society and the politicians who will go to the presidential and parliamentary elections is to change the system of forming the HQCJ and the HCJ. It is not only about the names. Without changing the principles of how they are formed, the judiciary reform will not take place no matter how much money you put in it,” Sokolenko emphasized.

The current PIC term of office expires on November 23, with its replacement being formed by then. Organizations which have successful experience of cooperation with international organizations and which went through audit can delegate their members. It is again the HQCJ which checks whether an organization can be selected.

A lawyer and a member of the PIC, Roman Maselko, emphasized that for representatives of civil society it is important to not give up – as that is what those in power and the HQCJ most expect. He called on all forces promoting change to mobilize their efforts and continue to monitor the process.  

 

Edited by: Michael Garrood, Alya Shandra

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