Judicial reform one of the most crucial changes for all other reforms in Ukraine – it is in the courtroom where the postulate of democracy, “one law for all,” is carried out. As most other spheres in Ukraine, a dependence on politicians and oligarchs corrupted this sphere and prevented the rule of law. The immunity of judges, opaque system of their selection, and unaccountability to the public, combined with their low salaries, has resulted in judicial system deeply entrenched in corruption and critically low public levels of trust – about 5-10%, according to a Razumkov poll.
After many months of sabotage by representatives of the old system, on 30 September 2016, the legal changes which could reload Ukraine’s mega-corrupt judiciary came into force.
This legislation, however, got a lukewarm response from society and experts, with experts naming the following drawbacks:
ambiguous formulations (for example, leaving the right to appoint a judge to the President) and a number of blanket norms which empower the President and the Cabinet of Ministers to decide the right meaning of a provision;
the monopoly of attorneys, which gives them an exclusive right to represent individuals and legal entities in courts, making the institute of attorneys one of the most powerful bodies in Ukraine.
the President gets more control over judges. Moreover, the whole reform initiative originated from the President’s administration, with little involvement from society.
Does Ukraine finally have a chance to reload its corrupt judiciary, which undermines all other reforms?
The experts of the civic initiative Reanimation Package of Reforms say it’s a good start and explained the positive outcomes that the judicial reform could bring in these infographics (click to expand):
The new legislation removes the responsibility of appointing judges from the Parliament, eliminating the political component of the procedure.
If implemented, the provision gives a chance to have independent judges. According to the new procedure, the President appoints a judge after the submission of the High Council of Justice.
“A president will have in fact ceremonial powers on the appointment at the submission of the High Council of Justice. However, after the appointment, connections between a judge and the President are broken. This is very important because a judge becomes independent and does not have to look back at the president all the time,” said Andriy Kozlov, a consulting observer of the Constitutional commission.
Markiyan Halabala from the Reanimation Package of Reforms is not that optimistic about the new procedure, noting that it’s possible that the President’s administration will ask additional questions from the candidate and exert additional influence over him/her by signing the judge’s license.
The President and the Parliament will delegate their representatives to the High Council of Justice, however this influence is expected to be minimal.
The High Council of Justice is reorganized. Now the number of its members, its procedure of formation and responsibilities have been changed. It is the High Council of Justice which now should provide the independence of judges.
However, the experts do not expect this reorganization to bring much change under Ukrainian circumstances.
Mykhailo Zhernakov, the leading expert of the Reanimation Package of Reforms, emphasized that the restructured High Council of Justice corresponds to the standards of the Council of Europe. According to these standards, the majority of this body has to consist of judges who are elected by judges. But the expert doubted whether these standards can be implemented in current situation in Ukraine:
“I understand how it works in the West. There is trust in the court, members of this Council act professionally, responsibly, and are guided exclusively by criteria of professionalism and integrity of the judges, not other interests. Unfortunately, we see that there is a huge problem in the integrity of the Ukrainian members. I am skeptical about this format of Judicial Council at this stage of development of Ukraine.”
Markiyan Halabala stressed that the old way of thinking still exists among judges:
“There are no any legislative innovations which would provide the full independence of the High Council of Justice from the centers of the executive and legislative branches of government. Usually, we have a situation when one depends on who appointed him. This is a bitter reality.”
So far it is hard to evaluate the particulate details of the work of the High Council of Justice as there is no corresponding law on it.
According to the Constitutional Amendments, regular citizens and entities receive the right to challenge the constitutionality of Ukrainian laws. However, to make this possible, a new edition of the Law on the Constitutional Court of Ukraine has yet to be created.
The previous order of the appointing and dismissal of the judges of the Constitutional Court was one of the reasons why the notorious ex-president Viktor Yanukovych usurped his power. The judges were dependent on the politicians who used them for their own interests. Now, the new legislation contains specific procedures of how and why a judge can be hired or dismissed.
The new legislation takes away the full immunity from judges. In case a judge is arrested just after committing a felony, an agreement of the parliament on his arrest (like before) is not needed. In other cases, there should be an agreement of the High Council of Justice. This reduces the risk of a judge using the time until the next parliamentary session starts to run away from the country, after being caught receiving a bribe.
Moreover, a new provision gives the opportunity to dismiss judges if they do not provide a confirmation of the legality of the origins of their wealth and property. This provision already has caused the mass volunteer resigning of the old judges.
Judges receive a salary raise. They are now significantly higher. The judges of local courts will receive a monthly salary equal to 30 minimum wages – UAH 46,500 ($1,763). Judges of the Appeal Court and the High Specialized Court will get 50 minimum wages, as of today UAH 77,500 (USD $3,001). The judges of the Supreme Court will receive 75 minimums – UAH (USD 4499). According to the new legislation, judges will also receive additional payments.
The judicial reform also foresees the liquidation of a number of courts and creation of new ones. All the courts which are not reformed will face recertification.
Judges will have their lifestyle, level of expenditures, and family ties monitored. The latter is often used for financial manipulations.
The reform opens the door for new people with no previous practice working as a judge. Another innovation provided by the new legislation is a creation of the High Anti- Corruption Court.
Drawbacks. It is now defined at the constitutional level that only an attorney can represent a person in court, sans a few exceptions. This provision was assessed negatively by experts, as it establishes the monopoly of attorneys, meaning that attorneys now have exclusive rights to represent a person in court, and will become one of the most powerful bodies in Ukraine. This provision may cause trouble for people who can’t afford the services of an attorney. Last but not the least, the state becomes dependent on the will of attorneys, who now have the opportunity to receive unlimited income which will be paid by the state.
Reform awaits implementation legislation
The implementation laws are yet to come and their content will identify the quality of the judicial reform.
The first such law is the new edition of the Law on the High Council of Justice. The reorganized body so far can’t implement its new responsibilities because there is no corresponding law. Its creators didn’t prepare it in time so that the Parliament could not vote for it. The situation with the Constitutional Court is not much different – a small group of people is preparing the implementation laws behind closed doors . Volodymyr Shapoval, ex-deputy head of the Constitutional Court of Ukraine, is convinced that in order to prevent criticism, a lobby from the Constitutional Court itself is preparing the laws, while ideally they should have been prepared by unbiased external experts.
Great expectations regarding the fight against corruption are placed on the new judicial body – the Supreme Anti-Corruption Court. However, again the implementation of the provision is now in a deadlock too, as there is no legislation which would regulate the creation and work of the court.
Judicial reform faces opposition
Just coming into force, the new legislation has already faced opposition. Among other provisions, the reform provides for specialized courts will be liquidated, and the new Supreme Court will be created instead. All 200 judges of the new Supreme Court have to be selected in a result of the competition.
The current Head of Supreme Court, Yaroslav Romaniuk, didn’t welcome these innovations, declared they were unconstitutional, and called for a milder renewal of his court, by having a reassessment of acting judges. The Supreme Court has applied to the Constitutional Court for recognizing the new legislation as unconstitutional, which led to the Ministry of Justice calling these steps of the Supreme Court an attempt to derail the reform.
The main problem of judicial reform: discredited judges
Judicial reform was one of the key demands of Euromaidan protesters, and corrupted judges were named the main problem in achieving it, according to a survey by the Ilko Kucheriv Foundation. And it is here that reform of the judicial system faces the same problem as many other spheres: if we are to lustrate all the judges, where do we find enough qualified people to take up the positions? If we do not lustrate all of them, how do we separate the wheat from the chaff?
As of September, over 7,000 judges work in Ukraine. Apart from those that resigned of their own will, the Verkhovna Rada fired 29 judges for violating the oath. The majority of them were responsible for repressions against Euromaidan protesters in the winter of 2013-2014. Then, the court was an extension of the Yanukovych regime, persecuting the activists that opposed it based on made-up accusations.
After these repressions, Automaidan activists pledged to clean the judiciary from corrupt and biased judges, having started PROSUD, a civic initiative to monitor judges’ declarations and real incomes. “Our goal is to have only decent, honest people remain in the judiciary, who are able to resist the pressure of politicians and remain truly independent,” says PROSUD coordinator, Automaidan activist Kateryna Butko.She believes there will be no lack of people willing to work in a renewed court system.
All the new applicants for judicial offices are required by law to undergo independent open competitions. Mykhailo Zhernakov, chief judicial reform expert of the Reanimation Package of Reforms, considers that Ukraine has no lack of lawyers – thousands new ones graduate each year. “It’s, however, crucial that people believe the competitions for new positions are conducted honestly. So we will have enough new judges,” he adds. However, he notes that the procedure for conducting such contests are not yet developed, but is convinced that the success of judicial reform in Ukraine will depend on public pressure and that it is the public that must control each step of the authorities in implementing changes.