Will the long-awaited justice prevail in Ukraine?

Ukraine's Supreme Court in Kyiv. Photo: Leonst (CC) commons.wikimedia.org

The experts and officials involved in the reform process believe it can be finalised in two to three years – when all the currently working judges will be assessed by an independent body and when a new generation of judges will have completed training. However, some public activists are afraid the reforms will not purify the judiciary enough which would conserve distrust in the system.

Deficit of trust

Reform of the judiciary was meant to be one of the symbols of the new policies after the EuroMaidan revolution. The first steps taken included transforming the system after many Maiden protesters were sanctioned. Activists estimate that close to 351 judges supported requests by police to withdraw the driver licenses of the protesters, and agreed to detain severely beaten activists when they clearly needed to be in hospital. They also issued orders prohibiting rallies in a number of cases. In addition, the level of public trust in the judiciary was so low that any attempts of administering justice, in cases related to the Maidan, inevitably led to greater distrust in other court decisions. The principal motive behind the reform is the need to restore trust in the system. The secondary aim is to raise the level of professionalism within the system. Interestingly, the judiciary itself did not generally see a need to change.

A GFK poll commissioned by the USAID in 2015 found that 79 per cent of Ukrainians did not trust the courts and judges. Meanwhile, only 40.4 per cent of judges, surveyed separately, have the perception statement that the society does not trust the judiciary. According to the same survey, 89 per cent of Ukrainians believed there was a need for a lustration process in the judiciary system, whereas a mere three per cent of judges supported that idea and 78.3 per cent believe that the vetting of judges would have only a political motive behind it.

In 2014 the law on “Restoring Trust to the Judiciary” was passed by Ukraine’s parliament. It issued an assessment of judges involved in cases relating to the Maidan protesters. In order to evaluate judges’ actions during the revolution, a temporary special commission was established. The commission reviewed judicial action and gave its opinion on judges and their future. Thirty-four of the 351 judges involved in the Maidan cases were fired and 29 more were suspended.

In May 2015 a presidential decree confirmed the “Strategy for Judicial Reform” and parliament passed a law on access to a fair trial. Amendments to the constitution which gives more independence to the judiciary were subsequently passed in 2016. Judges who were previously appointed by parliament will now be selected and assessed by a special independent body called the High Qualification Commission of Judges (HQCJ). The law On the Judiciary and the Status of Judges stated that the chairpersons of the courts will be now elected by the judges themselves. In addition, the judiciary system governing body, the High Council of Justice, was created. Finally, in 2017, competition for the candidates of the new Supreme Court took place and the court began its work in December 2017.

New Supreme Court

The new Supreme Court was the flagship project of the judiciary reform. Twenty-four per cent of the 111 judges in the new Supreme Court had no judiciary experience prior to the reform. Most come from other legal professions, human right organisations or academia. Some activists have voiced concern, noting that the new Supreme Court appears to represent the old system. This had a special significance since, according to the GFK survey, the judiciary is formed on a narrow social and professional basis: the majority of judges (70 per cent) are former court staff members or law enforcement officials. This means that the judiciary is a rather closed corporation in Ukraine, which could hinder the reform process.

Some members of the public believe that the “renewal rate” of the new Supreme Court is too low and say that more new faces are required. However, external experts have expressed confidence in the reform. Dovydas Vitkauskas, an expert with the Support to Justice Sector Reforms in Ukraine project financed by the European Union, has argued that the number of people from outside the judiciary who came to the Supreme Court is unprecedented compared to reforms in other countries of Central and Eastern Europe. In Vitkauskas’s view, it is impossible to create a functioning system without those who have practical experience. The main guarantee will be the quality of judges present as a result of the fierce competition and vetting process that will be in place. Out of more than 1,400 candidates, for example, only 120 were nominated to the Supreme Court.

The new HQCJ began functioning by organising the formal application process for candidates applying and later it started to assess the judges of the appeal court. This year the HQCJ finally started examining the judges within the general court. Similarly, The High Council of Justice (created in 2016 via a reorganisation of the High Council of Justice that functioned between 1998 and 2016) is tasked with overseeing the work of the whole judiciary system in Ukraine and taking disciplinary decisions on judges who deliver illegal court decisions or break the law in other ways. It is also officially tasked with proposing the candidates selected by HQCJ to be appointed as judges (the appointment to be finalised by the president). It is made up of representatives of the judiciary, academia, prosecution bodies and members of the public.

Practical difficulties

In the meantime the looming qualification assessment has forced many judges to resign. The transitional provisions of the reforms have allowed judges who have 20 years’ experience to resign and receive a pension that is 90 per cent of their salary. It has been reported that by the end of 2017 more than 2,500 judges – or 20 per cent of all eligible judges – have chosen this option. At first, some commentators in Ukraine saw this as a positive development, believing that the judges who decided to leave were the corrupt ones who were afraid to disclose their property in the new public declarations (a compulsory requirement for all the state officials since 2016). Other experts argued that some judges decided to leave because they did not think they could pass the evaluation. What is more, the High Council of Justice fired an additional 890 judges due to numerous offences or unsatisfactory qualifications.

The mass exodus added stress on the system. By the end of 2016, in 219 courts across Ukraine, there was only half the required number of judges working. In some courts only 20 per cent of the required number of judges was still in place. In seven courts there were no judges left at all. As a result, hundreds of cases remain pending before the courts. According to Ukrainian law, only criminal cases can be transferred to different district courts.

According to Serhiy Koziakov, the chairman of the HQCJ, there are currently 2,400 vacant judges’ posts in the judiciary system – mostly in the general courts. The vacant posts can only be filled by qualified candidates who meet the strict new requirements. At present, candidates need to have at least five years’ experience working in one of the legal professions, and be over 30 years old. During the first selection attempt, 700 candidates were pre-selected by the HQCJ from a pool of more than 5,000 candidates. However, there will still be some delays before they can start working. The law requires all successful candidates to take a special 12 month training course and pass a final examination before they can start working.

There are also other problems. A number of the new procedural regulations came into force at the same time as the new Supreme Court began its work. This means that the new judiciary is working in a new legal framework. However, the conditions in which regulations are adopted, with the practice of constant changes and amendments, can prove challenging. For instance on March 15th this year the president signed a law which amended the changes that were made in the Criminal Procedural Code (which had just entered into force on March 10th). There will also be infrastructural issues. At the end of 2017 the president signed a number of decrees reorganising the system of courts and their physical jurisdictions. A number of courts will be merged and the borders of districts will expand. In Kyiv, for example, there now will be six district courts (instead of ten); in Kharkiv, five instead of nine; and in Lviv, three instead of five.

Some experts have raised some concerns. “In criminal cases the districts in which prosecutors work will not correspond to the court districts,” Roman Romanov, director of the human rights and justice programme at the International Renaissance Foundation, told me. “This would mean that the same prosecutor may have to present cases in different district courts, the suspects may have to be transported for their hearings by longer distances. This all will make the work of the prosecution less effective.”

Inconsistent application

The activists who advocate reform in Ukraine have expressed disappointment with the judiciary reform process thus far. Many argue that too many corrupt judges will be able to pass through the new selection process and that the new oversight bodies have not been tough enough when it comes to dismissing judges who were involved in cases against Maidan activists. In November 2017 one member of the Temporary Special Commission (which was created to review cases against Maidan activists and give recommendations regarding the judges involved) said that after having reviewed 63 judges the commission recommended that 62 per cent of them be fired. Yet the High Qualification Commission of Judges supported only half of those recommendations.

In March this year the Public Integrity Council – a special consultative body that was established as an official watchdog to verify and give opinions on judges who wish to remain in the system – declared that all members of the PIC were suspending their participation in the qualification assessment. The reason given was that the HQCJ was letting too many unworthy candidates pass. In only about half of cases that the PIC raised concerns about did the HQCJ agree with them.

Despite the consensus regarding the need for reform, the public in general does not see the changes as effective. According to surveys carried out by the Democratic Initiatives Foundation in 2017, only six per cent of Ukrainians believe the changes to the judiciary are going in the right direction. The most trusted people to help create positive change in the country are civil activists (47 per cent), foreign experts (29 per cent) and lawyers outside of the judiciary (23 per cent). The president and the parliament are trusted only by 16.5 per cent and 13 per cent respectively.

According to officials who are currently working on the reforms, the most important changes have already been made. There was “an injection of integrity” in the judiciary system, which was brought on by the civic activists, academics and experts from the private sector (who came to work either in the High Council of Justice, the High Qualification Commission of Judges or the new courts). Andriy Boiko, a member of the High Council of Justice, believes that this injection of integrity and destruction of the mechanisms of political control over the appointments in the judiciary will be the main factors which will contribute to its renewal and improvement.

Experts like Romanov of the Renaissance Foundation as well as members of the judiciary believe that the reform in itself will not be sufficient. As Vitkauskas noted in a public appearance recently: “The justice system is a complex system which includes the prosecution, the lawyers representing the clients, etc. Therefore complex reforms are needed.” Romanov claims that currently only one per cent of the accused in criminal cases in Ukraine are acquitted (both in the general courts and the appeal courts). This is a clear demonstration that the prosecution does not work to serve justice, but merely to create impressive statistics.

Many experts and practitioners believe that the education of lawyers and the bar exams should be changed in order to ensure more quality lawyers. This will be the next task to complete in order to ensure justice is holistically administered in Ukraine.

Kateryna Pryshchepa is a PhD candidate at the Institute of Political Studies of the Polish Academy of Sciences. She previously worked as a journalist in Ukraine.

judiciary reform, Ukraine