In the months after Volodymyr Zelenskyy's elections, Ukrainian society has been shaken by outrageous court decisions. While some connect these incidents with the coming to power of the new president, many facts suggest that the judicial reform touted by previous President Poroshenko had never succeeded in healing the degradation of Ukrainian courts. Zelenskyy has the opportunity to implement a much-needed reform - but there are worrying signs he is no more interested in an independent judiciary than Poroshenko.
Recent controversial decisions of Ukrainian courts
Let’s start with the controversial decisions Ukrainian courts made during the last year. On 26 February, the Constitutional Court of Ukraine made a decision which rolled back part of the achievements the country had made in fighting corruption. In particular, it ruled to recognize an article of the Criminal Code which foresaw responsibility for illegal embezzlement to be unconstitutional. On 5 February, Kyiv’s District Administrative Court forbade Uliana Suprun – hailed by many as one of the few truly reform-minded public servants left in Ukraine – to perform her duties as Acting Health Minister. The decision again pointed to the problems within Ukraine’s judiciary. In particular, the many judges and courts that are ready to make politically motivated decisions. Because of the public outrage this decision provoked, the court rolled back its decision. On 11 December 2018, Ukrainian society was rocked by the news of Roman Nasirov, ex-head of the State Fiscal Service of Ukraine who is suspected of causing UAH 2bn ($73.7mn) of damage to the state, being reinstated to his previous position. Together with these events, many sitting judges – who during the Euromaidan Revolution were ready to legalize crimes committed during the regime of runaway president Viktor Yanukovych, and prosecuted protesters, jailed them, deprived them of their driving documents, and conducted other restrictive measures – remained in the system. Also, according to civil society organizations involved in the reform, 44 of 193 judges appointed to the new Supreme Court have a tainted reputation. All of these “achievements” of Ukraine’s judiciary took place before the 2019 presidential election, which leads to the conclusion that there was something already wrong with the judicial system in Ukraine before Zelenskyy took power.What the judicial reform foresaw

However, it turned out that there was something wrong with the reform process from the outset.
The symbol of the unreformed system

However, at the eleventh hour, it was excluded from the list of courts that needed to be liquidated. The court continued operating and making dubious decisions.
- legitimizing the dispersal of the Euromaidan protests;
- blocking investigations on high-profile corruption;
- stopping competition for the position of the head of customs;
- blocking reform within its own functioning.
"If this court should not be liquidated, then I don't know what to say about the others," Mykhailo Zhernakov, Chairman of the Board of the DEJURE Foundation and the member of the PIC commented to Euromaidan Press.The qualification assessment of judges of the court was to take place 2017-2018. The ways in which judges avoided the assessment are worthy of a comedy script. It was only in March 2018 that the first seven judges were assessed and passed. The assessment of another 39 judges was set for July 2018, however the head of the court asked to postpone the process because the court was overloaded at that time. The HQCJ postponed it to April 2019, for 37 judges. However, in April, the head of the court asked to postpone again. Only seven judges had come to the assessment in April, the other 30 claimed illness. The commission then set the procedure for 21 May. Again, only three judges came. Thus, what was supposed to be a one-year process, has so far taken more than two years, with limited results. On 26 July 2019, all the complaints of civil society about the court received additional confirmation when the National Anti-Corruption Bureau together the Prosecutor General Office conducted searches in it. The law enforcers stated that they are investigating whether the court interfered in the work of the HQCJ and obstructed the qualification assessment. Also, the Anti-Corruption Bureau released tapes which allegedly contain conversations of the court's judges. On them, they are heard clearly interfering with the work of other state bodies. Even without the recent investigation, civil society has been pointing out the problems with the court for years. However, it is just the part of a systemic problem. And NGOs involved in the judicial reform stress that it needs to be addressed systematically.
The top problems
During and after the attempted reform, civil society organizations pointed out the main obstacles for real change. Half of the two bodies of judicial self-governance – the HQCJ and the HCJ – consists of judges selected by judges. Predictably, few of these judges are interested in appointing people legitimately wanting change. Their goal has always been exactly the opposite, to keep everything as it is. This explains why some 3,000 judges successfully passed the qualification assessment and only 15 have been dismissed. Apart from maintaining their position, judges who passed the assessment will also receive a raise in salary. Zhernakov puts the joint responsibility for the failed judicial reform on the two bodies of judicial self-governance and on ex-president Poroshenko.“Poroshenko had all the instruments to turn the HQCJ and the HQJ into capable bodies. If he used these instruments, we would not have been observing such decisions we see now,” said Zhernakov.The core issue, according to the expert, is that the system itself has never been independent, but has always been directed at serving political interests. Some courts have already conveyed signs of their support to new politicians. However, it’s too early to tell whether those in power are responding.
“So far those in power are busy with the elections. The more there is a vacuum of power, the more the courts make absurd decisions,” Zhernakov stated a few days before the snap parliamentary elections on 21 July.Earlier, Zhernakov drew attention to factors that might have revealed Zelenskyy’s desire to control the system as much as Poroshenko had. Particularly, Zelenskyy had canceled Poroshenko’s decrees on appointing HCJ members and appointed people to the new commission to select the new members. These commission members are not perceived as reformers, rather as representing the same old system. The result of the competition itself will reveal the true intentions of the new president. Zelenskyy’s absence of reaction to the recent incident with the Kyiv District Administrative Court is also indicative. On Monday, 29 July, two days after the incident, civil society representatives lamented the silence of the new powers and stressed that the persons involved can escape the country. In this regard, civil society members released a statement demanding to urgently issue suspicion notices to the implicated persons, to properly investigate the case and eventually to liquidate the court. It is noteworthy that Liudmila Denysova, the Parliament Commissioner for Human Rights has also been involved in the scandal. The head of the Anti-Corruption Bureau informed that the head of the court Pavlo Vovk interfered with the appointments of the HQCJ members from the quotas of the State Judicial Administration and the office of the ombudsman. During the appointments, Denysova in her turn took into consideration Vovk's preferences in exchange for the cancelation of the three protocols of the National Agency on Corruption Prevention. Therefore, the statement also demands Denysova's dismissal.
"This is the moment of truth, of checking whether those in power are ready for real, not cosmetic changes, or for the opposite - for rolling back [all the achievements]," says the statement.
The cases on top corruption
When on 9 July, the Odesa Malinovsky District Court delivered an acquittal to the scandalous Odesa Mayor Hennadiy Trukhanov, some again related the action to the change of power in the country. However, representatives of civil society organizations had much earlier warned of just such a scenario. Trukhanov and a few officials from his inner circle were accused of embezzling some UAH 92 mn ($3.62 mn) from Odesa local budget funds July-December 2016, when buying the bankrupt the Odesa Kraian factory at an inflated price.The special Anti-Corruption Prosecutor sentenced Trukhanov to 12 years in prison. However, judges of the Malinovsky court determined there was not enough evidence for such a harsh penalty.
To heal the system

- reconsidering the ambivalent decisions of the HQCJ, regarding the positive assessment of dishonest judges;
- creating a mixed court for the resolution of commercial disputes, with the participation of independent professional arbitrators;
- developing alternative ways of dispute resolutions, such as mediation and arbitration
- implementing world standards in judicial education;
- holding transparent competitions for the positions of the Constitutional Court judges.