This article reviews the legislation which have been passed prior to amending the Constitution and explains how new legislation changes the status quo. This text concludes with several recommendations on measures that may facilitate reform progress. It was initially published on voxukraine.com
There has been little progress in judicial reform process for the last two years since Euromaidan. The main reasons for the low efficiency in this realm are old rules, old faces, and dangerous political influence.
Successful judicial reform is crucial for the broader spectrum of reforms in Ukraine because the flaws or disputable results of any other reform may be applied to and revised in a courtroom. Until recently sabotage by the representatives of the old system was considered the main obstacle on the way to successful changes. However, recent Parliamentary hearing regarding the Constitutional amendments on judiciary raised new discussions. One of the highly disputed matters is whether adopted changes restore checks and balances or keep excessive power in President’s hands.
This article reviews the legislation which have been passed prior to amending the Constitution and explains how new legislation changes the status quo. This text concludes with several recommendations on measures that may facilitate reform progress.
Reforming legislation in post- Maidan period
Euromaidan protesters listed judiciary reform at the top of their agenda. 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:
- Dependence of judges upon politicians (81%) and oligarchs (80%);
- Paid-for court decisions (77%);
- Prevalence of collective responsibility in the judicial system (73%).
In order to address these problems, as well as popular demand to restructure judicial branch, three major laws have been adopted as a part of post-Euromaidan judicial reform:
- Restoring Confidence in Ukraine’s Judicial Authority (hereinafter – On Restoring Confidence),
- The Lustration Law , and
- Assuring the Right to Fair Trial (on the Fair Trial).
These laws on judiciary have yet to be fully implemented, and many aspects are still being debated, however, they have helped to get judicial reform off the ground in Ukraine.
Mykhailo Zhernakov, a leading expert on the Judiciary, and a board member of the Reanimation Package of Reforms (hereinafter RPR), identified six important changes that have already resulted from the adoption of these laws:
- 1) Qualification and disciplinary bodies have been entirely reshuffled, namely the High Qualification Commission, and High Council of Justice.
- 2) Judges have been granted power to choose the courts’ сhief justice, which is crucial to ensure judicial independence.
- 3) Some steps towards punishing judges who committed crimes or who rendered unlawful decisions regarding Euromaidan activists have been made.
- 4) The process of re-certification of judges has been launched.
- 5) Court hearings can be videotaped without necessitating the approval of a presiding judge.
- 6)The list of disciplinary sanctions that may be applied to judges was expanded.
Although this legislation brought a number of positive changes, it was not sufficient to make permanent stucrural and effective change in judicial reform landscape.
Weak points of the “pre-amendments” steps
Not only the post-revolutionary attempts to reform judiciary failed to satisfy requirements of civil society, they have also resulted in emerging challenges threatening to bury those few positive achievements discussed above.
In practice, the mechanisms developed for judicial selection and reappointment of justices proved inefficient. Laws adopted to tackle corruption (e.g. the law on Restoring Confidence in the Judicial Authority and the law on Assuring the Right to Fair Trial) prescribe examining general jurisdiction judges for alleged disciplinary liability and dismissing them in case they breached their oath. However, only a few judges have been dismissed since the law has been adopted.
The re-certification of all judges provided by the law on a Fair Trial lacks public monitoring since citizens and NGOs don’t have access to judges’ profiles. Hence, there is a low chance and no guarantee that citizen’s complaint would actually affect a particular decision about the reappointment of judges. Moreover, the only sanction envisioned in the evaluation process is that a judge should be merely sent for retraining.
Judges who got used to work in a corrupt environment and benefit from it are not ready to adapt to other standards. There are still judges with corrupt mentality in Ukrainian courts. A number of those judges who worked during Yanukovych times, as well as those investigated by the National Anti-Corruption Bureau, have passed the evaluation and continue their work even under the new governance. Their motivation to stay at the position is money. Oleksandra Drik, head of the Public Lustration Committee, raises this issuewhile discussing changes in the Constitutional Court: “…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. 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.” This problem is a long-lasting vicious circle: people accused of violating the Constitution are simultaneously responsible for restoring justice in the country.
Mutual cover-up in Ukrainian judiciary is another issue which holds the reform back. A district Odesa judge Oleksiy Buran accused of taking a hefty bribe of UAH 500,000 (approx. $20,000) started to shoot at the National Anti-Corruption Bureau detectives carrying out a warranted search in his house. However, the Judicial Council of Ukraine interpreted this incident as incitement to suicide: 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 in custody until July 23. This case shows how representatives of Ukraine’s courts are not prepared to recognize crimes committed by their peers. The old system guards will remain steadfast to the last to blanch the actions of their colleagues and to keep their positions.
Constitutional amendments to force the reform
On June 2 two more important bills designed to break the deadlock of judiciary reform have been passed in Verkovna Rada (Parliament):
- On the Judicial System and Status of Judges
- On amendments to the Constitution regarding justice (hereinafter – Constitutional amendmends)
The main changes at this stage of reform are:
- 1) returning to 2010 three-level court system;
- 2) establishing the new body the Hight Council of Justice;
- 3) changing rules of selection and appointment of judges;
- 4) narrowing the scope of judicial immunity;
- 5) raising salaries for judges who have successfully passed the qualification evaluation.
Prior to recent changes to Constitution, all the steps implementing judicial reform were rather random and sporadic. Hence, Constitutional amendments were perceived as a tool that would shape up judicial reform, as well as give it a direction to move from merely declarative gestures to actual agenda. However, adopted legislature once again divided society and experts into 2 main categories. First, those who support the idea of amendments, but disagree with the text of the particular bill. Second, those who think that changing the Constitution is inappropriate step during the war and that the adopted bill will break the back of judiciary in Ukraine. Only a few perceived the project positively.
The flaws of the new legislation
The manner in which recent changes to the Constitution have been adopted raises a number of questions not limited by the jucial reform only. President Petro Poroshenko took the reform under his control. On June 2 he personally addressed members of Parliament and called upon them to pass the bill. The Parliament displayed unusual unity: 335 (out of 450) deputies voted in favor of the draft law. The Executive Director of the Ukrainian Helsinki Human Rights Union Arkadiy Buschenko has no doubts that reforming judiciary is possible without amending the Constitution and what has happened is nothing else but a political manipulation. Victor Shyshkin, ex-judge of the Constitutional court is also confident that the Constitution can not be changed during the time of war pursuant to Article 157 of the Constitution. All above-mentioned arguments suggest that the amendments on judiciary might be just a test revealing if it is possible to force other necessary changes in the nearest future. For example, such controversial changes might include amending election procedure in Donbas region.
President of Ukraine receives more control over judges. RPR experts named it as one of the main risks that could prevent proper implementation of the amendments. The bill doesn’t give the President authority to make any decisions regarding the appointment of chief justices, but it empowers the President to sign and thereby certify authorization documents of chief justices and their deputies. This may result in informal practices of influence over judges. Moreover, pursuant to the transitional provisions of the bill, the President of Ukraine establishes, reorganizes, and liquidates courts untill the new administrative-territorial structure of Ukraine is established in accordance with the amendments to the Constitution on decentralization (no longer than to the end of 2017). No matter how the new provisions are seasoned, the fact is that more leverages affecting judiciary are in the President’s hands now.
The text of the amendments is ambiguous. The Human Rights Agenda Platform, an informal coalition of human rights groups emphasized that the number of the blanket norms is unacceptable. This opens the door for equivocal interpretations which might be used by politicians to force certain steps they need. Thus, the wording of amendments may potentially endanger judiciary independence.
The new legislation provides for a monopoly of attorneys. It was one of the reasons why the Samopomich faction did not vote for the amendments. Once attorneys receive an exclusive right to represent individuals and legal entities in courts, they will become one of the most powerful bodies in Ukraine. There is a big risk that this body might become a punitive agency. It is the unique example when the monopoly of a self-governing non-governmental organization is granted by the Constitution. “Attorneys monopoly is a huge problem as the state remains obliged to provide the access to court, but it does not have an instrument to do it. Attorneys in their turn do not have obligations, but have an instrument,” said Arkadiy Buschenko. In this regard, the state becomes dependents on the will of attorneys and attorneys receive an opportunity to receive unlimited income which will be paid by the state. This provision also complicates the access to justice.
According to the new legislation, chief justices who served the system during the time of disgraced Victor Yanukovych can stay on their positions for 7 more years. Their powers were terminated in 2014. However, in many cases, judges have reelected them. The Council of Judges explained that there has been no violation since they have been reelected in accordance with the new legislation and the previous term of service does not count. The new legislation does not prevent them from holding the position for the third or fourth time in a row.
Expectations for the future of the reform
The new legislation is called to finally move the reform forward. The beneficial aspects of recently adopted laws are the new High Court and the new people who will be appointed to their positions as a result of an open competition. Judges and their family members will have to submit documents proving their income is legal.
On the other hand, justices’ dependence on the political influence puts all the positive transformation at risk. President Poroshenko together with the members of the Parliament need to recognize eventually that courts are not a bargaining chip in a political game. Thus, politicians have put the best interest of the state above their own. However, it is rather the question of their moral.
Maintaining the old court system with the same judges undermines the ability of Ukraine to proceed with other reforms. For example, biased judges are likely to put spokes in the wheels of the police reform using their power to reinstate dismissed policemen (of the old guard). About 200 of such cases are now being considered in Ukrainian courts. So far old «court guard» may cast a shadow on any other positive transformations in Ukraine.
The bills which were passed after Maidan aim to clear the courts from corrupted-minded judges who are keen to implement orders, but not to do justice. All the steps which are done in this direction are focused on preventing people who served old regime from holding a position. However, it raises a new question: who will substitute them? Ukraine does not have an army of professionals with required experience to replace them. Therefore, training and investing in professionals should become a top priority of the state policy.
Unclear definitions in the Constitutional amendments created gaps for interpretations. This gaps should be filled in by the new accompanying legislations. Thus, the new order of the judiciary will largely depend on new legislation. For this reason, the burden of reforming lies on the Parliament and the problematic issues will be solved mostly on the political level. This is why society should be way more attentive to what is going on in Verkhovna Rada.
The process of changes can be significantly strengthened by engaging civil society in it. There should be more communication, providing and explaining the reasons behind particular decisions. Now, this communication is happening as a post-factum chore. Earlier there have been just endless talks of the need to reform without any explanation of particular steps. Monitoring NGO’s should be given more power, as well experts working in this field of expertise. The work on the Constitutional amendments displayed that collaboration between state representatives and civil society groups is possible, but there is still a tendency for coercion on the side of the state agents.
Until recently the attempts to reform judiciary were patchy and sporadic. However, the implementation of the Constitution amendments will show whether the launched reform process has an actual potential.