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Ukraine between law and justice

President Zelenskyy’s push to reform the judicial system has led to a political crisis in Ukraine. It can only be resolved by a dialogue within the country.

November 26, 2020 - Valentyna Korbachenko - Articles and Commentary

A hearing inthe Constitutional Court of Ukraine. Photo: Presidential Administration of Ukraine

Ukraine now finds itself in yet another political crisis. President Volodymyr Zelenskyy recently introduced a bill to parliament that could potentially result in the dissolution of the country’s constitutional court. The leader has argued that this must happen due to judges’ supposed interference in the fight against corruption. Given the ability of Ukraine’s leading politicians to act ‘above the law’, this bill has a good chance of being passed by parliament. This unchallenged power has remained one of the country’s main challenges, with it blocking a path to sustainable development for nearly three decades.

Why are Ukrainian politicians able to act in such a way in relation to the judicial system? Overall, this seems to be the result of numerous scandals and unsuccessful reforms that have undermined citizen’s trust in the national court and law. Ukrainian society simply does not value a judiciary system and is unprepared to protect the country’s laws, so politicians actively use it.

As a result, the situation is getting worse and worse. In recent years, the country’s judges have faced constant pressure from politicians. Many have subsequently abandoned their duties and left the Ukrainian citizen without any opportunity to protect their rights. At the beginning of this year, the lack of judges in Ukrainian courts was almost 30 per cent. Now even more.

Whilst international assistance has brought no positive results and has even harmed the system on occasions. In fact, Ukraine was pressured by Western countries to create parallel law enforcement and judicial system bodies, such as the National Anti-Corruption Bureau of Ukraine (NABU), the Specialized Anti-Corruption Prosecutor’s Office (SAPO) and the High Anti-Corruption Court (HACC). This is despite the fact that HACC is an anti-constitutional entity, as the country’s Basic Law does not allow for the existence of special courts. The appointment of NABU director Artem Sytnik was also recently declared unconstitutional.   

Moreover, these institutions remain insufficient for dealing with the country’s problems. According to the Razumkov Centre’s Sociological Service, more than 77 per cent of Ukrainian citizens have no confidence in the judicial system. At the same time, 71 per cent have little faith in NABU.

The creation of ‘Integrity Councils’ also proved to be ineffective. This is because the activities of these councils were not entirely legally regulated. The admission criteria for candidates wishing to become judges were also not clearly defined.

As a result, a candidate who wished to become a judge could have failed certain stages of the interview process simply because a member of the integrity council decided that they did not like the individual candidate.

It is therefore unsurprising that there was a growing number of experienced judges leaving the system during the judicial reform. As a consequence of this process, there were some courts that had no judges left at all. These bodies were subsequently suspended, making it all the more difficult or even impossible for citizens to access the justice system.

Of course, the quality of legal proceedings has been affected by this reality, with investigations piling up in the system. Suspects now also have to be retained for a longer time.

Consequently, the population’s inability to see justice done has resulted in social tensions.

Besides, the situation regarding the constitutional court remains tense. Ukrainian experts are convinced that the potential dissolution of the body would not solve the judicial system’s problems.

These issues run much deeper than individual decisions and personalities. This problem was recently discussed at the International Conference “Dialogue about justice – 2”, which was organised by Kyiv and Brussels. A number of Ukrainian and foreign experts have expressed concerns about the progress of judicial reform in Ukraine as a whole.

Former Member of the European Parliament Frank Schwalba-Hoth asserted that a low level of confidence in a court demonstrates that it has adopted the wrong reform model. He also discussed Ukraine’s lack of judges while acknowledging that many of those still in the profession are facing political pressure. Overall, he believes that the current model for the judiciary system needs to be improved.

At the same conference, former attorney general and chairman of the Union of Lawyers of Ukraine Sviatoslav Piskun said that judges in the country were often victims of campaigns designed to discredit them. He believes, therefore, that everyone in Europe following the reforms in Ukraine needs to verify the supposed ‘data’ related to these changes. 

Parliamentary representative and legal policy committee member Sergiy Demchenko also believes that news regarding the country’s reforms is not always true. As a result, Europeans are often misinformed about ongoing events in the country.

Subsequently, it appears that the conference participants talked about the wrong efforts for reform. In Ukraine, anyone who has directly worked in the justice system is effectively barred from official reform efforts. This includes judges, counselors-at-law and other law specialists. Due to this, Kyiv’s reform is developed exclusively by politicians and social activists loyal to them. They speak on behalf of all people in the country and are the ones who European politicians deal with when discussing these issues. Of course, this situation creates problems because politicians and activists are not always objective and often pursue their own interests. Europe should be in contact with a broader range of people in Ukraine in order to get a more objective view of the situation.

The president of the Institute for Democracy and Development “PolitA” and co-organiser of the conference, Ekaterina Odarchenko, believes that these events make it possible to hear both sides of the argument, improve channels of communication and find common ground. In relation to this, she recently stated that “Ukraine is focused on reforms and justice with the help of European colleagues but it is important to interact directly with each other without the interference of unnecessary intermediates who pursue their own interests and try to misrepresent the idea of these dialogues.”

For a long time, Ukraine has suffered from many problems. However, other issues have been created as a direct result of unsuccessful reform. This also applies to the judicial system, which desperately needs change. Despite this, in Ukraine people believe that radical and, moreover, illegal reorganisations of the system are not a real alternative. A much better series of reforms implemented by professionals is required in the country. Europe could help arrange a dialogue within Ukraine that could potentially lead to such a project for change.

Valentyna Korbachenko is an Ukrainian independent legal expert and researcher of the law and judicial system. 

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