Old faces in courts endanger all Ukrainian reforms | #UAreforms

The Judicial Council of Ukraine interpreted this incident quite differently. According to this official oversight body, the judge who fired at and fled from law enforcement, was the victim, driven to suicide by actions of the National Anti-Corruption Bureau. Eventually, the odious judge was arrested and is custody until May 28th.  

This melodramatic incident in Odesa is only one example out of hundreds of cases where representatives of Ukraine’s courts are not prepared to recognize crimes committed by their peers.

In accordance with the law on Restoring Confidence in Ukraine’s Judicial Authority, which came into force in April 2014, all heads of courts responsible for overseeing the work of the local courts were dismissed, and judges were allowed to elect new ones. Resistance to the new system was strong, however. In fully 80% of cases, the judges chose the same heads. 

What has been done to reform the judiciary after Euromaidan?

Ukraine’s post-Euromaidan reforms concerning the judiciary consist in the adoption of three major laws.

(1) Restoring Confidence in Ukraine’s Judicial Authority (1188-VII),

(2) The Lustration Law (1682-VII), and

(3) Assuring the Right to Fair Trial (192-VIII).

Although these three laws have yet to be fully implemented, and many aspects are still being debated, they have helped to get judicial reform off the ground in Ukraine.

Euromaidan Press recently spoke with Mykhailo Zhernakov, a leading expert on the Judiciary, and a board member of the Reanimation Package of Reforms.  He identified six important changes that have already resulted from the adoption of these laws:

1. A 100% renewal of qualification and disciplinary bodies, particularly in the High Qualification Commission, and High Council of Justice. This was intended to remove any corrupt people from ousted president Viktor Yanukovych’s administration.
2. Enabling judges to choose the courts’ supervisory heads, which is crucial to ensure judicial independence.
3. Today the judicial bodies are not 100% lustrated; only judges who committed crimes or who rendered unlawful decisions regarding Euromaidan activists have been punished.
4. The process of re-certification of judges has been launched. It should be strengthened again.
5. Court hearings can now be videotaped without necessitating the approval of a presiding judge. Anyone can come to a public hearing if it is open, and film it.
6. The list of disciplinary sanctions that may be applied to judges was expanded.

“So far these changes are not irreversible, it is not enough to say that judicial reform took place. However, this is already something, and it already gives judges the need to consider public opinion, and to understand that sooner or later they will be held accountable. And to some extent it has already [positively] affected the quality of decision-making,” says the expert.

Old system slows down the judicial reform

Zhernakov is confident that the majority of the problems of judicial reform is related to the individuals who served under the old system:

“Most judges are people of a totally different mentality, who will never become good [judges], no matter how much independence you give them. They came to work at a position not because they want to establish justice. They came to earn money.”

Corruption among judges was determined to be the key issue undermining confidence in the judicial system by a majority (94%) of respondents to a survey conducted by the Democratic Initiatives Foundation of Ilko Kucheriv. Among other issues respondents identified were:

1. Dependence of judges upon politicians (81%) and oligarchs (80%);
2. Paid-for court decisions (77%);
3. Prevalence of collective responsibility in the judicial system (73%).

All these aspects make the question of renewal of judicial appointments very relevant, says Zhernakov. Since the Revolution of Dignity, some laws were adopted to tackle corruption, such as the law on Restoring Confidence in the Judicial Authority and the law on Assuring the Right to Fair Trial. They foresee examining general jurisdiction judges for possible disciplinary liability and dismissing them in case it is determined that they breached their oath. However, since the law has been adopted, only a few judges have been dismissed.

Judge Serhiy Vovk of Kyiv Pechersk District Court has been involved in several controversial cases. The most well-known concerns the 4-year arrest of the ex-minister of Internal Affairs Yuriy Lutsenko (now an MP with the Petro Poroshenko Bloc). After Euromaidan, the judge was suspected in having deliberately issued unjust decisions. Nonetheless, Vovk’s appointment to the judicial bench has been repeatedly renewed.

“The Higher Qualification Committee removed the judge from the post five or six times, but never adopted any decision to dismiss him or to use another disciplinary penalty. Perhaps the judge will even continue to work after the seventh or even the eighth time of a dismissal. This means that somebody is still interested in having such a judge. It is not the first case that works this way: if there is a case against a judge, he can be kept on the hook and be manipulated in making the ‘needed’ decisions,” reckons Zhernakov.

Zhernakov is confident that more efficient steps have to be taken and names the main reasons the reforms are being conducted so slowly:

1. Political inertia. The need for reform was declared by the President and other authorities. However, few effective steps have been taken.
2. Lack of adequate public communication. Reform is barely being communicated to society – how should it look, what has been done, and when the result should be expected is not discussed.
3. Lack of a comprehensive public policy process. There is no comprehensive approach to solving these problems, and the public policy-making process regarding the judiciary is close to zero.

Additionally, the majority of reform activities were undertaken under the responsibility of President Petro Poroshenko, who claimed to take leadership of the reform process back in 2014, rather than the Ministry of Justice. After the personnel replacements in the cabinet, the Minister of Justice, Pavlo Petrenko, stayed on to work in the position. Activists still hope that in the very near future the ministry will become more involved in the reform process.

Read also: Ukraine’s judicial reform: plus ça change | #UAreforms

Why lustration is crucial

A collective of activists, journalists, lawyers and other specialists united to form a Public Lustration Committee to control the process of government personnel reforms. The corresponding law came into force in October 2014. However, reforming judiciary personnel is the most problematic part of it.

Oleksandra Drik, head of the Public Lustration Committee, says that changes in the Constitutional Court, the representatives of which are doing everything possible to stay in power, are of utmost importance:

“The Constitutional Court, a third of which still consists of people who helped Yanukovych to usurp power, is a threat not only to the Lustration law, but potentially to all post Maidan achievements, including electronic declarations regarding financial disclosure of assets [mandated by the Law On Amendments To Some Legislative Acts Of Ukraine In Relation To Declaration Of Officials’ Property, Income, Expenses And Financial Obligations, passed by Parliament this March 1022-VIII] and the National Anti-Corruption Bureau. And the only reason the judges are still not punished is the desire of the current state leadership headed by President Poroshenko to maintain the old system.”

Scale of corruption not understood in West

Generally, Ukrainians find that Westerners do not comprehend the need for lustration in the judiciary. According to the President of the Venice Commission of the Council of Europe, Gianni Buquicchio, who recommended amending the Law on Lustration, the main requirements of the Commission is personal responsibility in the application of lustration and conducting lustration of judges based on individual, not general, law.

Mykhailo Zhernakov explains why he believes Westerners find it so hard to accept the idea that total judiciary cleansing is necessary for effective reforms.

“They understand neither the scale of corruption, nor the reasons for such a low level of confidence. They cannot even imagine many of the sorts of things which are actually taking place today in Ukraine. Advisors who come to the decision-makers, be it Cabinet, Parliament or the President of Ukraine, say that standards of independence and self-government have to be implemented and then everything will be fine. We say that the majority of problems consists in people who have a completely different mentality. They should be dismissed. In these particular circumstances with our heritage we have to act very decisively. If you ever picked up the phone from a politician or anyone else and acted as you were told, but not as is required by law, then you should not be a judge. There is a popular expression that 5 years of mistakes is better than 50 years of sabotage. If we do not conduct lustration effectively, if we do not update these bodies, nothing will change in Ukraine.”

The lustration processes which have already taken place in Ukraine are criticized by the Reanimation Package of Reforms, but the reasons differ from those which are cited by Western diplomats:

“The Law on Lustration gave very few opportunities for judicial changes, because it provided only a formal inspection of judges and their declarations. The law on Assuring the Right to a Fair Trial provided the re-certification of all judges, but it is also rather weak today because according to its procedures of review of judicial profiles, neither citizens, nor NGOs can submit relevant information to add to these profiles. Only state authorities have a right to do this. Moreover, these profiles are not open to the public, and no one can verify their contents. Thus, first, the  High Qualification Commission does not have sufficient information for examining these judges. Second, it is not possible to check how fair the evaluation of the Commission is, because no one except it has access to the profiles of the judges. And third, the only consequence of the evaluation process is that a judge can be just sent for retraining.

Of course, the question of legal grounds for dismissing judges, which can only be constitutional, arises in this regard. Well, here we are closely approaching the need for amendments to the Constitution of Ukraine,” concludes Zhernakov.

Constitutional amendments needed for reforms to progress further

According to experts, reforms will not make further progress without Constitutional amendments. The activists expect that Ukraine’s Verkhovna Rada (Parliament) will vote for the corresponding amendments during the current parliamentary session, before July 2016. These amendments are envisioned as taking the responsibility for deciding on the development of the career of judges away from the Verkhovna Rada and President, placing them instead on the Superior Panel Of Justice. Several changes in judicial candidacy requirements are introduced, as well as demands for meeting criteria for judges who want to remain in their positions. Also, before taking up a judicial position, judges will be required to complete a course in the Ukrainian National School of Judges. 

Experts of the Reanimation Package of Reforms see two main downsides in the project of the Constitutional amendments drafted by the Constitutional Commission and adopted by the Rada in the first reading.

First, ratification of the Rome Statute and recognizing the jurisdiction of the International Criminal Court is postponed. The official reason for putting off the ratification is that it can be used by Russian propaganda. Allegedly, the ratification might cause liability of some Ukrainian authorities for war crimes which might have been committed by Ukrainian soldiers. This happened in Georgia after their ratification of the Rome Statute, when only Georgian soldiers, but not Russian ones, were prosecuted because the Statute did not formally apply to Russia.  

“In our opinion, war crimes and crimes against humanity have to be punished no matter who committed them. We have to be a state which demands high standards for itself and for soldiers to not commit such crimes,” says Zhernakov.

The second downside of the project, according to the Reanimation Package of Reform, is a monopoly of attorneys, meaning a representation of court parties’ interests only by attorneys, which are introduced gradually over 2017-2019.

“Applying it to today’s attorneys system carries a very big risk, because this system now is heavily dependent on the one person who heads the Ukrainian National Bar Assosiation,” explains Zhernakov and adds: “Even though we are critical towards these two points in the bill, in general, we think that there is more good than bad there. Also, many things can be remedied with the implemented laws. So we support the idea of adopting it.”

Also, experts expect that the Constitutional amendments will provide additional grounds for dismissing judges.

Among other steps which can change the situation in the judiciary, the experts see the creation of a hybrid court where international judges will be involved. Such a step is possible even without Constitutional amendments. This would allow for faster and more objective investigation of anti-corruption cases. A hybrid court can also be helpful in investigating war crimes without the need for ratification of the Rome Statute.

Full lustration of judges needed

The experts of the Reanimation Package of Reforms support the idea of a complete overhaul of Ukraine’s judiciary.

“According to the experience of reforming state agencies during the last two years, we have seen that creating new institutions and appointing professionals on the basis of competition works well. The new patrol police, Specialized Anti-Corruption Prosecution and National Anti Corruption Bureau demonstrate a much higher level of trust in them. By the same token, the attempts to reform local prosecutors offices failed, because the same system remains. Our recipe for judicial reform is to create a new Supreme Court, appellate courts, and to cancel the incomprehensible fourth level of courts – the highly specialized courts. It is about creating two new institutions and selecting professionals for them based on a process of transparent competition. It will also be open to sitting judges, including first-time judges, which would also serve to elevate young and honest professionals to these positions. And in fact this new Supreme Court would form an appropriate court practice, even if we cannot quickly replace a large number of judges in the lower courts, which is about 6,000 judges. Even if some unfair decisions are made in local courts, they can be canceled in higher courts.

As for the trial courts, it is not necessary to hold a competition for every position of judge there, although some reorganization is also needed. But even without reorganization, it is still possible to renew this system as well, provided the re-attestation procedure is strengthened. For that we need to vote for Bill #4180 that provides for more transparent vetting procedure with greater involvement of professionals from civil society,” concludes Zhernakov.

Without new courts and new judges, there can be no other reforms

Maintaining the old court system with the same judges undermines the ability of Ukraine to proceed with other reforms. Police reform is a good example. About 200 cases of dismissed policemen (of the old institution) are now being considered in Ukrainian courts, half of them in the Kyiv District Administrative court alone. These policemen dispute the results of the conclusions of the reformers and demand to be renewed in their positions. Courts in their turn often take the side of the plaintiffs by forbidding to film the hearings, denying journalists access to them, etc. Some officers from the old police force have already been renewed in their position. Such examples are dangerous signs which pose a threat to the entire system of police reform and demonstrate how important it is to make progress in judicial reform.

Traditionally the judiciary in Ukraine has been dependent on the executive branch of government. However, breaking this “tradition” is one of the first demands of Euromaidan activists and the main condition for building a strong democracy in Ukraine. An independent judicial branch is crucial for implementing any reform in Ukraine since the results of transformations may be reviewed and even canceled by judge’s decisions. An independent judiciary is also crucial for ordinary people who deserve fair resolutions to their cases. Changes in the judiciary are strongly dependent on individual judges. Therefore during the process of reform, special attention has to be paid to their selection. 

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