Judicial reform 2.0: Zelenskyy comes with initiatives only partly supported by society

In the last five years, the judiciary remained the cornerstone for other Ukrainian reforms - sooner or later, any change could have ended up being appealed in court. The activists involved in the judicial reform to the greatest extent had blamed ex-president Petro Poroshenko of failing to strip courts from political influence. Recently, newly-elected president Volodymyr Zelenskyy suggested legislation that would relaunch the judiciary reform in Ukraine. The activists praise a few good aspects of it, but draw attention to a significant drawback which will set the clock back again. In terms of the judiciary, the beginning of work of the new parliament in which Zelenskyy’s party holds the majority has been long-awaited. Before the new parliament was formed, Zelenskyy's intentions towards the field remained unclear. However, more signs that the fight for politically independent courts is far from being over started to appear now. Among the positive signs society received was the promise of Ruslan Riaboshapka, first deputy head of the President’s Office and now Prosecutor General, that the new parliament's first days of work will be directed at reloading of the bodies of the judicial self-governance. During the very first day of the new parliament's work, the president filed a number of bills, some of which concerned reloading the judiciary. In particular, the bodies of judicial self-governance.

The key players in Ukraine’s judiciary

The High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ) are the two bodies of judicial self-governance in Ukraine. Half of each body consists of judges elected by judges. NGOs involved in the reform criticize this principle of the organizations, claiming that it preserves corruption in the judiciary, supporting the old guard of judges. The two bodies have been also criticized for spoiling the competition to the new Supreme Court, allowing 44 dishonest judges (out of a total of 193) to have positions there, and for failing to hold a fair qualification assessment, which allowed judges with tainted reputations to keep their seats and to improve their financial conditions. Poroshenko’s judicial reform involved representatives of society in the process through the creation of the Public Integrity Council (PIC). The role of the PIC is to assist the HQCJ on assessing the professional ethics and integrity of judges. However, the HQCJ ignored the PIC’s conclusions and recommendations. Against this backdrop, the formation of the High Anti-Corruption Court, a new institution for dealing with cases of top-corruption, can be viewed as a success story. The success can be attributed to a Public Council of International Experts (PCIE), whose role was similar to the PIC's: to check the candidates' integrity and professionalism, with the difference that the international experts were given veto powers, albeit not unlimited. The positive result that this imposed on the Anti-Corruption Court was, therefore, soured by the disrespect of the institutions of judicial self-governance towards local activists.

“For them, the authority of international experts was stronger than that of the activists. The institutions which nominated the international experts followed the process attentively. So they [the HQCJ] could not ignore PCIE opinions or forbid them from asking questions. Also, the PCIE had a stronger mandate and powers than the Public Integrity Council. So the concerns the PCIE members raised regarding candidates were harder to overcome. For that, the HQCJ was obliged to not only express its opinion, but to change the opinion of the international experts,” Iryna Shyba, Executive Director of the DEJURE Foundation told Euromaidan Press in February.

At the same time, the expert emphasized the Commission’s disrespectful attitude towards the civic society representatives, despite highly qualified specialists volunteering their time for activism. Also, President Poroshenko himself and his office were the key influencers of the reform. They drafted the key legislation and submitted it to parliament. However, they also influenced the courts to make politically motivated decisions, experts say.

Pros and cons of the potential changes

The changes Zelenskyy suggests include reforming the HQCJ. According to it, the competition for the positions of HQCJ members will be held by a commission of three Council of Judges members and three members of the Public Council of International Experts. The latter will have the final say during the voting. To hold the position of a HQCJ member, one should have at least 15 years experience in the judiciary. The regulation of the HQCJ will be formed by the HCJ. The head of the HQCJ and his deputies during 2013-2019 are to be lustrated. Other changes foresee:

• reducing the number of Supreme Court judges to 100 and other changes regarding the court;
• creating a commission on integrity and ethics consisting of three HCJ members and three international experts under the HCJ.

The bills are to be considered by the corresponding parliamentary committee, so changes to them are possible. Also, a few days later, Zelenskyy made another statement regarding the judiciary, suggesting to strip judges who do not deserve the honorable title of a judge of their robes on a weekly basis. Mykhailo Zhernakov, the Head of the DEJURE Foundation analyzed the president’s first initiatives in the judiciary. The expert positively notes Zelenskyy’s recognition of the failed reform and desire to take responsibility to fix it, as well as the plans to relaunch the HQCJ with the participation of international experts. At the same time, he notes that in no way can the president himself dismiss judges. He can influence the process only through his legislative initiatives. Among the drawbacks of the possible changes is the one foreseeing that only lawyers with 15-years experience can be members of the HQCJ, Zhernakov notes. He stressed that it were the representatives of the old guard who wasted the efforts of the last five years to clean up the judiciary. Zhernakov and other experts in the field noted that another drawback of the proposed bills is the absence of plans to relaunch the HCJ.

“It is the current squad of the HCJ which is responsible for keeping the Maidan judges [those who prosecuted Euromaidan activists] in their positions, a bunch of dishonest judges in the Supreme Court, whitewashing Pavlo Vovk [the head of the notoriously discredited Kyiv District Administrative Court] etc. How dismissing any judges will be possible with this squad is a mystery. Of course, we can’t exclude the existence of some kind of agreements between the HCJ and the President’s Office, but then it's not a reform, but manual management.”

According to Zhernakov, even with the participation of international experts, the commission on ethics consisting of current HCJ members will be ineffective, as at least one member of the HCJ be involved in decision-making.

“In general, it seems that there is a desire to change something, but not too dramatically, to not lose control,” concludes Zhernakov and adds that it is impossible to attain justice with half-measures.

Before the new parliament started working, some events in the judiciary already took place. The lack of Zelenskyy’s reaction to them was a warning sign itself.

What happened in the summer

In the end of July, Ukraine's judicial field was shaken by a scandal. The main players were the Kyiv District Administrative Court and its head Pavlo Vovk. The court was searched by law enforcement forces, in particular from the National Anti-Corruption Bureau and the Prosecutor General's Office. The things they revealed did not come as a surprise to activists who have been calling out the court as the number one symbol of Ukraine's corrupt judiciary for years.

• Read also: Recent outrageous decisions of Ukrainian courts prove Zelenskyy inherits limping judicial system

In particular, the law enforcers released recordings of conversations with the alleged participation of judges of the court. They involved, besides a number of judges of the court and its head Vovk, members of the HCQJ, ex-MP Serhyi Kivalov, Commissioner for Human Rights Liudmyla Denisova and others. If true, the recordings prove that the court's judges blocked the HQCJ from holding qualification assessments for themselves, influenced appointments to the HQCJ, intervened in the work of other institutions, and traded decisions for their own interests. The Prosecutor General's Office filed a petition to the HCJ on the temporary removal of Vovk and one more judge. The HCJ decision was scheduled for 20 August.

“This will truly be the lithmus test of the ability to fight manual and custom justice under the new government,” Roman Maselko, lawyer and activist, member of the Public Integrity Council, watchdog of judiciary made of representatives of society wrote before the decision.

But latest signals were worrying. A message that the case of Vovk is just about punishing an allegedly rebellious judge by the previous politicians was distributed in the internet before the HCJ meeting, Maselko explained:

“I think there is a plan to pin all things negative on Poroshenko and prepare society (which does not like the ex-president much) that the judge who disobeyed Poroshenko is not that bad. So if he is not suspended, it’s OK.”

The lawyer says that such a message allows shifting the focus from identified facts of ordered decisions in exchange for positions, faked competitions where the winners are known in advance, etc. Although the court indeed served Poroshenko, who was attentive to Vovk’s wishes.

“As soon as the employees of the court saw that Poroshenko is losing his power, they immediately reoriented themselves. Now they are actively trying to show their loyalty to the new government,” Maselko told.

"A miracle did not happen," Maselko wrote on 20 August when the HCJ decided to keep Vovk and another judge in their positions. More details followed. Slidstvo.info journalists revealed that before the decision, two members of the HCJ who were speakers at the meeting where Vovk’s case was considered, dropped by the President’s Office. They alleged that they came there to discuss the judiciary reform. President Zelenskyy approved the provision on the Legal Reform Commission in early August. In particular, the Commission will prepare amendments to Ukrainian laws and assist in reforming the judicial system. However, the two members of the HCJ who came to the President’s Office are not the members of the Commission. Journalists asked members of the Commission whether they actually met with the HCJ representatives in the Office of the President on August 14 and 15 to discuss "issues of judicial reform." Commissioner Andriy Kozlov said that he did not know about such meetings. Possible agreements between the HCJ members and the President’s Office will hardly be revealed to the public. But they can be visible from the future decisions. After the presidential elections, a total of 18 NGOs proposed an Agenda for Justice for the political parties to follow. Prior to the snap parliamentary elections, five parties supported it. Among them were Servant of the People (Sluha Narodu), Fatherland (Batkivshchyna), and Voice (Holos), all of which were subsequently voted into parliament. The number one priority of the Agenda for Justice is to relaunch the HQCJ and the HCJ with the help of international experts. The agenda will face many challenges in the months ahead. Among them will be:

• reconsidering the dubious 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 resolution, such as mediation and arbitration
• implementing world standards in judicial education;
• holding transparent competitions for the positions of the Constitutional Court judges.