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Ukraine’s struggle to overcome corrupt courts illustrates why Western judicial model does not work in post-Soviet states

Launch of the new Supreme Court was among the first done during the first judiciary reform after the Euromaidan Revolution. Supreme Photo:
Ukraine’s struggle to overcome corrupt courts illustrates why Western judicial model does not work in post-Soviet states
Article by: Olena Makarenko
Edited by: Alya Shandra, Morgan Foster
Halyna Chyzhyk is not yet 30, but already a key player of Ukraine’s judicial reform movement, having played an important role in civil society’s attempts to establish uncorrupted courts in Ukraine in the reform drive following the Euromaidan revolution. In a recent interview, she details why transplanting the Western judicial model in post-Soviet states was doomed to fail and why the attempts at reform of Petro Poroshenko and first attempts of the reform of Volodymyr Zelenskyy ultimately failed. Plus, she raises the most important of all questions: after one has driven out the bad judges, where does one get the good ones to replace them?

Read more in this material produced jointly with our partners at the Lviv Security Forum.

Note: This interview was taken before the launch of the judiciary reform on 14 July 2021.

Halyna Chyzhyk is a prominent representative of the young generation of Ukrainian activists. In her mid-20s, she started her fight for reforming Ukraine’s corrupt judicial system. The strong demand for reform appeared after the Euromaidan Revolution of 2014. While it was ongoing, Ukrainian judges overwhelmingly sided with fugitive president Viktor Yanukovych’s regime, persecuting and imprisoning activists.

Halyna Chyzhyk. Snapshot from video blog “So, What’s Next?

Now, when post-Euromaidan presidents Petro Poroshenko and Volodymyr Zelenskyy had undertaken several attempts to overhaul the judiciary, it is easier to evaluate mistakes and to determine where to move next.

Chyzhyk was interviewed by Oksana Syroyid who, as an MP from the Samopomich party, worked on the judicial reform together with lawmakers.

The revolutionary changes at the judiciary after Euromaidan

After the revolution, president Poroshenko’s Office started to work on the reform in collaboration with experts from civil society.

One of the revolutionary provisions of that time was creating a Public Integrity Council (PIC), a public body to assist the High Qualification Commission of Judges, the body of judicial governance, in qualification assessment of judges identifying compliance of judges with the criteria of integrity and professional ethics.

The first composition of the Public Integrity Council. Photo from open sources

The step was revolutionary as civil society was promised a chance to examine and influence the previously secluded and opaque processes in Ukraine’s judicial system. Chyzhyk was a PIC member. Now, she and her colleagues say that this good idea was spoiled at the level of implementation. In practice, the two bodies of judicial self-governance, the High Qualification Commission of Judges and High Council of Justice, pulled nearly all the strings, with activists being relegated to stage props. These two bodies of judicial self-governance have not been really reformed by either then or now.

In particular, the High Qualification Commission of Judges was disbanded as a result of Zelenskyy’s first attempt at reform in 2019. The unreformed High Council of Justice sabotaged all attempts to reform its composition. Battles to form the two bodies according to honest principles are ongoing.

Lessons learned from Poroshenko’s reform

Now, Chyzhyk is an expert on judicial reform with the Anti-Corruption Centre, leading NGO to fight corruption in Ukraine. A few years after the first attempt of judiciary, she describes what went wrong then.

“In 2017, when we trusted the government, when the government told us that they’d give us the opportunity to impact the process to a reasonable extent, that they’ll put the High Qualification Commission of Judges in charge. We were told that in case we submit an unfavourable report and establish that a judge doesn’t meet integrity criteria, the members of the Committee would meet in full and would resolve on the appointment of that judge with a majority of 11 out of 16 votes. Back then, we believed: My God, that’s great, we have this authority now! Would you imagine 11 members of the qualification committee voting for a villain? We’d provide all the facts we found – about the undeclared mansions and garages full of luxury cars that couldn’t be purchased with judges’ salaries. We believed that, after putting all this in our report for the High Qualification Commission, it would read the report and say: ‘You are right, this behaviour compromises a judge’s office, that person should be rejected.’ Instead, the Commission mostly didn’t even consider our arguments, because a handful of influential members of the Committee who got to make decisions weren’t interested in dismissing such judges.”

Chyzhyk evaluates that the most important lesson from that experience was that civil society did not have real power and couldn’t really influence anything.

“We can come up with as many public councils as we want, with whatever designs we want, but until civil society experts have a real power to impact the process, we cannot hope that the judicial system will somehow clear itself up.

I’ll say even more: This is not just our local Ukrainian problem. This is generally a problem of the countries of East Europe, the post-Soviet space. Ukraine, Moldova, Georgia, Armenia, countries that inherited the Soviet judicial system of dependent judges, a judicial system that was never really reformed, which wasn’t cleared after the collapse of the Soviet Union.”

Soviet residues in the judiciary

Proving her point on the corrupted judicial system inherited from the Soviet Union, Chyzhyk provides her experience as a member of PIC. When Chyzhyk and her colleagues evaluated candidates for the new Supreme Court back in 2017, they thought about the criteria for evaluation. One of Chyzhyk’s colleagues came up with an idea that was later accepted by everyone – whether the candidates were members of the Communist Party or not.

“We have had many judges holding office since the 1990s, and there are even those who have been judges since the 1980s. In 2017, we developed questionnaires to be filled out by judges, and it turned out that the majority of them were members of the Communist Party. The point is that those people received thorough training in collaborationism and opportunism long ago, in the 1980s and early 1990s.”

Haluna Chyzhyk and Oksana Syroyid. Snapshot from video blog “So, What’s Next?

Chyzhyk goes on saying that at the time, if one didn’t join the party, he or she couldn’t become a law student and then couldn’t go to work in law enforcement or in the judiciary.

“Many of them even told us that they weren’t actual communists but had to join the party to even be able to study at the university. That is, we inherited a judicial system, which was filled with conformists, and we didn’t manage to get rid of them at the beginning, in the 1990s.”

Syroyid in her turn argued that the processes that led to judicial corruption started much earlier — in the 1990s, when the foundation for Ukraine’s current oligarchic system was just being laid. Syroyid explained that then, the processes of massive privatization of state enterprises and the formation of monopolies got underway, in which the courts had a decisive role as a result of conflicts between monopolists.

Another key lesson of the reform attempts that Chyzhyk learned was that old judges kept too much power.

Ultimately, we saw an attempt at judicial reform under Yanukovych in the second half of the 2000s, then a great judicial reform under Poroshenko. It seemed that we started shaping the judicial system; we started pursuing the best European standards and practices. It turned out that, in Europe, they had a great standard for that: out of fear that presidents, parliaments or governments may influence the judiciary, because it is a distinct branch of government and, as such, it should be independent, they let judges decide all the issues independently. We believed that we should let judges elect the members to the High Qualification Committee of Judges and the High Council of Justice by a majority of votes of judges themselves so that the president and the parliament wouldn’t interfere in their work – bingo!

As told by Chyzhyk, Ukraine took cues from West Europe, but, like in Moldova, Georgia, Armenia, and in other countries, it didn’t work out.

Chyzhyk says that even though the Public Integrity Council couldn’t, unfortunately, influence the outcome and didn’t succeed in preventing the corrupt judges from being re-elected to the new Supreme Court, and the qualification assessment of judges in fact was failed, the case of the Public Integrity Council was unique because it showed that we had professionals who were able to pull off the act.

“This was a great experiment with the involvement of civil society actors, and it can work not only for Ukraine but also for other countries affected by the same problem,” Chyzhyk says.

The idea that judges from the old system can clear themselves up should be shelved, Syroid sums up..

“We need independent professionals in the bodies that deal with personnel issues in the judiciary,” Syroyid says.

Corruption in the judiciary starts at law school

Chyzhyk agrees that involving independent professionals is the first step which can be taken now. However, the expert clarifies that the system can’t be changed quickly.

And another key question arises on the agenda: where will the new good people that will replace the corrupt judges come from?

As a graduate of law school, Chyzhyk ascertains the fact that corruption starts there.

‘When students are taught to take bribes, they’ll graduate from university and they’ll take bribes later. Thus, it seems to me that legal education and the actual reform of education for the legal profession is extremely important. This is what will enable us to get fair courts at some point because we will be sure that honest, qualified professionals will come to fill those positions.”

Are the laws themselves OK?

Chyzhyk describes that back in 2016, during Poroshenko’s attempt at judicial reform, the law itself was very good and there were no issues with it.

“The best European standards. But the problem was not in the law, but in who applied it. We now have a lot of good laws, but corruption still exists in courts because a judge who wants to pass a custom-made decision to the benefit of the party who paid for it will find a way to twist the provisions of the law in such a way that it works for them.”

Talking about Zelenskyy’s attempts at reform, Chyzhyk says that the president and his team had a chance to make a great reform.

‘Maybe not even the boldest reform imaginable, because it concerned only the High Qualification Commission of Judges, and the High Council of Justice wasn’t even mentioned then. That is a reboot. They couldn’t complete even that step. Then there was a lack of both integrity in this intention and, I think, professionalism to implement it.”

In fact, demand for justice keeps growing, it has never been met. This, according to Chyzhyk, gives hope that there are still chances that society will be able to press together with international partners.

Chyzhyk says that so far we can see that Zelenskyy’s government and his Servant of the People Party ignore civil society pretty much in the same way as Poroshenko’s government did, but they still lend their ear to the West, because the West speaks to them from a position of strength and money [this interview was taken before the launch of judiciary reform on 14 July 2021].

Poroshenko had a formula. He said: ‘Let’s raise salaries of senior judges, let’s pay $10,000 to judges of the Supreme Court, $6,000 to judges of the appeal court judges, $2-3,000 to judges of local courts. We have some 5,000 judges in the country, and we pay them millions of hryvnias each month from our taxes. These figures are sky-high compared to the average Ukrainian salary, but they are mere pennies compared to what many of those judges rake in as bribes for unfair decisions. In other words, those sky-high salaries didn’t become a deterrent, a safeguard against corruption in the judiciary. We have a huge problem in the parliament. Just as we want to see honest professionals in the judiciary, we also want to see similar people in the parliament.”

Public organizations, power, and the impostor syndrome

Halyna Chyzhyk is moderating a discussion at the first non-oligarchic high-level conference. Photo: Democracy in Action

Appealing to Chyzhyk’s previous statement, Syroyid questions in what way can civil society actors be encouraged to become state servants and why don’t they want to.

“I can say for myself, although, in reality, no one offered me to become part of the government…

Let’s put it this way, if I’d received such an offer in 2019, I’d still have had the feeling that I’m not ready, that I still don’t know something, that I lack some more substantial experience and competencies. As a matter of fact, I’m trying my best to fight this impostor syndrome.”

Chyzhyk also confirms that this is quite a widespread phenomenon now and she is not the only one to suffer from it.

“This impostor syndrome, an impression that you ended up where you are now by sheer chance, and you lack knowledge, experience, reason, and whatever else it takes.”

As well, Chyzhyk believes that she can influence reform processes more as a civic activist than she would have been able to in any position in the government or in the parliament.

“Any such position is hardly likely to give me as much influence as I may enjoy now. Sometimes you can’t call things by their names. You have to make compromises and deals. Instead, I have more freedom now.”

According to Chyzhyk’s observations, lack of mutual support among representatives of the civil society often also becomes an obstacle for common results.

“What I see in civil society is just this string of failures to come to an agreement. … although I wasn’t part of the government, even as a member of the Public Integrity Council I could feel that I was not supported, just criticised all the time. I guess that reformers who come to power just really lack this support, validation, and help. Instead, they only face criticism.”

Chyzhyk sees the only solution on the table that should necessarily be used is to sit down together at a table and to speak honestly about everything:

“We need to learn to listen, to hear each other. Not just talk. Most importantly – and this is one of my personal lessons, – we need to be able to celebrate our victories and see not only the negative but also the positive side.”

This publication is based on the video blog “So, What’s Next?” issued by Lviv Security Forum with the financial support of the Hanns Seidel Foundation in Ukraine.

Edited by: Alya Shandra, Morgan Foster
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