What Prevents Ukrainian Judiciary From Becoming Truly Effective And Independent?

Since 1991, governments of independent Ukraine would rather use judiciary to their benefit than develop an independent branch of governance. This has nearly led to the collapse of the judiciary, and as a result, active judicial reforms had to be undertaken. Thus far, the judiciary in Ukraine does not correspond to the Council of Europe standards of independence, fairness and effectiveness. However, some important developments have been made. In this post we describe Ukraine’s judicial system since independence and sketch the recent reforms it’s been going through.

Under Kravchuk (1991-1995)

The court system of post-soviet Ukraine inherited the majority of its characteristics from the former Ukrainian SSR – three levels of courts governed by the Supreme Court. In 1992, the Verkhovna Rada of Ukraine (VRU) adopted the Concept Paper “On the court reform”, which established constitutional, general, and specialized jurisdictions (figure 1). According to the 1992 Law

“On the status of judges” (Article 5), judges were not allowed to “participate in any kind of political activity, to have a representative mandate, to be hired for any other paid positions, to perform other paid work, except for scientific, academic and creative”. 

Nevertheless, the level of politicization of justice was high, and receiving and paying bribes was common in the majority of courts [1]. First, the budget financing of the judiciary was insufficient. Low salaries of judges and lack of resources for courts’ maintenance have opened a way for local politicians and private individuals to affect judicial decisions by financing courts’ routine expenses [2]. Second, the parliament could not only appoint but also dismiss judges thus putting them under political pressure. Third, no review of judges’ performance took place. Only the new candidates had to pass qualification examination by the Qualification Commission of Judges (QCJ), while almost all Soviet judges automatically became judges of independent Ukraine [3], except for those who resigned, were fired or on trial due to their participation in bringing criminal cases against activists of the Revolution on Granite.

Under Kuchma: presidential term 1 (1996-2000)

On June 28, 1996, Ukraine adopted a long-awaited Constitution which established an institute for review of judicial decisions in cassation order. Although appellate instance of courts of general jurisdiction existed before, regional courts were now renamed to appellate, thereby formally establishing the appellate instance. General jurisdiction court system has been organized according to the principles of territoriality [4] and specialization [5]. The Supreme Court of Ukraine (SCU) remained the highest judicial body but it was deprived of the function to review constitutional issues. The Constitution proscribed detention or arrest of a judge (until found guilty) without the consent of the High Council of Justice (HCJ), unless  he or she committed a grave crime. Theoretically, the change was aimed at eliminating preconditions for influencing a judge in any way, but de facto brought flourishing judicial corruption (since corruption was not a grave crime and was hard to prove in court).

Source: gska2.rada.gov.ua

These changes left a number of issues unresolved. For instance, the lack of a fact determination process endorsed an overly broad discretion to judges. Politicians and other interest groups in Ukraine kept influencing judiciary, for example, by threatening judges with dismissals or bringing criminal charges against them and their relatives [6].

Under Kuchma: presidential term 2 (2000-2005)

On June 21, 2001, just a few days before termination of the validity period for the transitional provisions of the Constitution, the VRU adopted a number of amendments to existing laws [7]. These shadowbox changes that became labelled a “minor” court reform were aimed at giving the impression that something was being done. The High Court of Arbitration became the High Commercial Court, and the High Administrative Court was established. Since 2001, Ukraine had only general and constitutional jurisdictions. A separate Cassation Court was supposed to take over some of the workload of the Cassation Chamber of the Supreme Court without liquidating it. This was declared unconstitutional – in breach of Articles 125 and Article 131 of the Constitution, and thus was never implemented. An initiative to establish a separate Appellate Court to review appeals against decisions of appellate courts of the first instance was not implemented either.

The level of politicization of the judiciary remained extremely high, especially during the highly competitive beginning of the 2000s. With the help of threats or even violence powerful politicians continued imposing their will on courts. One of the brightest evidences of such tendency were secretly recorded infamous Melnychenko tapes [8]. Those revealed Mr. Kuchma asking Viktor Yanukovych to pressure a judge from the Donetsk region Oleksandr Tupytskiy for ordering Mr. Kuchma to witness at the trial and force him to make the “right” decision.  The recordings also proved President Kuchma ordering kidnapping and murder of journalist Georgiy Gongadze. Moreover, in 2002, a criminal case was falsified against Andriy Fedur, a lawyer of mother of Georgiy Gongadze Lesya Gongadze, after undertaking several notorious cases with Kuchma’s involvement, in particular the aforementioned one [9]. 

On several occasions, however, Ukrainian judges stood up to the Kuchma regime. In 2001, then-Chairman of the Pechersk District Court Mykola Zamkovenko presided over criminal prosecution of Yulia Tymoshenko, Deputy Prime Minister and leader of the opposition. Next year, a judge from the Appellate Court in Kyiv Yuriy Vasilenko opened a criminal investigation against Kuchma on numerous charges. In 2002, the prosecution office opened criminal cases against both judges, charging them with the abuse of office. However the majority of post-communist judges were either too weak or too “friendly” to politicians to resist interference in the judiciary.

Under Yushchenko (2005-2010)

As Viktor Yushchenko became the president of Ukraine, both political and civil rights of citizens have improved significantly. The Law “On access to judicial decisions” was adopted on December 22, 2005 along with the Concept Paper “On improvement of the judiciary in order to ensure fair trial in Ukraine in line with European standards” on June 10, 2006. Nevertheless, political interventions into work of lower courts intensified. The 2007 survey [10] of 1024 judges in Kyiv showed that 35 percent were satisfied by their level of independence and 57 – completely not. To the contrast, in 1996-2002 surveys 60 percent of judges of Ukrainian courts were satisfied with their level of independence and 33 percent were not. In 2008, the majority of judges perceived that their independence was decreasing.

The procedure for appointment of judges was extremely political. As an extreme case, the activities of the Constitutional Court of Ukraine (CCU) were disrupted because the VRU failed to appoint its portion of judges and later on refused to swear in the judges appointed by other branches. The CCU was thus unable to work lacking quorum. President Yushchenko and Prime Minister Tymoshenko also implemented a strategy of setting “friendly” judges to leadership positions within the judiciary.

Under Yanukovych (2010-2014)

By returning the pre-2004 version of the Constitution and depriving the VRU of some key functions regarding selection and dismissal of judges, in 2010, the power again was concentrated in the hands of the president. The Supreme Court (SCU) authorities on cassation of civil and criminal cases were transferred to the high specialized courts. This left no chance to the SCU to choose cases it was to hear, thus limiting its powers [11], which was unconstitutional [12]. The fourth instance of courts of general jurisdiction was created. At the same time, the military court system was liquidated [13] aiming to ensure independence of judges in administering justice. Prosecutor General of Ukraine Yuriy Lutsenko explained this i.a. by the ECtHR statement that “courts, which include military judges, can not be considered independent and impartial”. On the other hand, it is a great question if judges of civil courts can competently assess all the circumstances of purely military matters, especially when they are not allowed to conduct a trial outside  the courtroom.

The local qualification commissions for judges were eliminated in favor of the central High Qualification Commission of Judges (HQCJ), tasked with selection and reference of judges to the High Council of Justice (HCJ) which then recommended them to President of Ukraine. However, the selection process was not impartial since HCJ members were mostly appointed by or belonged to legislative and executive branches. Anonymous testing somewhat leveled the field. The HQCJ (instead of the parliametn) was to appoint judges for a lifelong period after the five-year probation term, while both the HQCJ and the HCJ were to dismiss them. The HQCJ did not have to provide reasons for rejection of candidates, and this discretion allowed  “friendly” judges to remain in office. 

As result, Transparency International Global Corruption Barometer 2013 survey showed that 87 percent of Ukrainians viewed judiciary as corrupt and extremely corrupt state institution while 46 percent believed the “courts could decide on the cases in an independent and impartial manner”.

Under Poroshenko (2014-2019)

In the aftermath of the Revolution of Dignity which toppled Yanukovych, the changes in the judicial branch were necessary, especially considering Ukraine’s intentions to enter the Association Agreement with the EU. In 2015, Ukrainian Parliament voted to return the Constitution of 2004, making Ukraine a parliamentary-presidential republic again. In 2016, higher specialized courts were liquidated and a three-level system re-established. The new 

Supreme Court was to be established and a complete examination of judges of general jurisdiction courts was arranged. All acting judges were to pass the qualification assessment of competence, professional ethics, and fair practices, including submission of declarations of property and family ties. The HQCJ along with the Public Integrity Council (PIC) comprised of representatives of the civil society were responsible for conducting this assessments. Only after PIC became operational, the public obtained on opportunity to directly participate in the process of judges’ selection. In practice, the recommendations of the Public Integrity Council were mostly disregarded by the HQCJ in the process of selection the Supreme 

Court judges. Thus, 25 out of 114 candidates chosen to the new Supreme Court on July 27, 2017 came from “the dishonorable thirty” list. Moreover, according to the Anticorruption Action Centre (AntAC), eighty percent of appointed judges (93 candidates) were acting or former judges, and only twenty percent (27 candidates) previously worked as attorneys and legal scholars. Previously, only experienced judges could access higher-level courts. Thus partly judges appointed to the Supreme Court are the old-system judges. Prudency of 16 of 75 judges appointed on May 7, 2019 is questionable as some of those come from “the dishonorable thirty” again. Today 193 out of 196 Supreme Court seats are filled in.

Before examination of judges started, almost a thousand of Ukrainian judges resigned. In spring 2018 the HQCJ evaluated judges of courts of general jurisdiction. As a result, only 26 out of 735 judges received negative/unsatisfactory review. Initially only six minutes were spent on one interview with a judge candidate. Under the public pressure the HQCJ increased the time to 24 hours and 55 minutes per judge, but this time was spent on tests, conversation with a psychologist, and technical processing of dossiers. Transparency of the process of selection of judges [14], along with the appointment of HCJ’s members [15] raises questions too, as only final marks were published on the HQCJ website and criteria of assessment are unknown. 

A five-year probation term for judges was abolished in order to protect judges from political dismissals. President and the parliament were fully eliminated from the process of judicial dismission – the HCJ is responsible. The right to reorganize, establish, or liquidate courts was shifted from the president to the parliament. To lower incentives for corruption, judicial salaries were raised and judicial immunity was partially eliminated, thus a judge can be detained during or immediately after committing a crime without permission of special organs (earlier, the parliament had to give its consent for arrest.)

The other anti-corruption measures include introduction/establishment/founding of the three new institutions: the National Anti-corruption Bureau of Ukraine (NABU), the Specialized Anti-corruption Prosecutor’s Office (SAP), and the National Agency on Prevention of Corruption (NAPC). The NABU created in 2015 for targeting high profile corruption crimes, and the SAP have been investigating over two hundred cases only after ten months since its establishment. In August 2016, UAH 45 million were confiscated and returned to the state. Yet, the creation of the anticorruption institutions alone is insufficient in the circumstances of the old-system staff running the Supreme Court. For example, out of 63 indictments and 41 criminal proceedings filed in the court, nine ended up with verdicts, five out of which were simply a result of a plea bargain, and the other cases were stalled. For instance, the NABU suspected Kostiantyn Kulyk, the military prosecutor of the Prosecutor General’s Office, in illicit enrichment. However, in 2016, the Kyiv Appellate Court reinstated Kulyk on his position regardless of the evidence collected by NABU and his attempts to influence the investigation. In such circumstances, the new anticorruption organs are totally unable to deliver. This explains the extremely low trust of the population in a judicial system and reform as such: the level of trust in the judiciary did not exceed 10 percent in 2016, despite the fact that the reform has started. 

On June 7, 2018, the Law “On the High Anticorruption Court of Ukraine (HAC)” empowered the HAC exclusively with the review the criminal proceedings investigated by the NABU under guidance of the SAP. The HAC’s Chamber of Appeals, in turn, will consider appeals against rulings of other courts on top-level corruption and all related ongoing proceedings. The HAC should start working on September 5, 2019. The Public Council of International Experts (PCIE) was entrusted with selection of anti-corruption judges. Six members of PCIE were chosen at recommendation of the EU, Council of Europe, European Anti-Fraud Office (OLAF), European Bank for Reconstruction and Development (EBRD), Organization for Economic Cooperation and Development (OECD). The selection of judges was broadcasted online, which is a unique system engaging civil society in appointment of the judiciary, as emphasised by Georg Stava, expert of the EU “Right-Justice” Project.

In total, with 343 candidates applying and 269 being admitted to the competition, on April 11, 2019, 39 judges of the Anti-corruption court were chosen: 27 to the HAC itself and twelve to its appellate instance. Now, minimum salary of selected judges should  constitute fifty minimal wages [16] of Ukrainian citizen. Judge, his/her residence and family should also be provided with around-the-clock security upon request. 

With regard to the constitutional justice, the parliament can no longer block the activity of the Constitutional Court by refusing to swear in appointed judges: now a judge should make an oath at a special plenary meeting of the Constitutional Court itself, not at the parliament. The CCU gained additional responsibilities to provide opinions on constitutionality of issues proposed for referendums but was deprived of the power to interpret ordinary laws. Finally, as the “breach of an oath” is no longer a ground for a judge’s dismissal, chances of different institutions to suppress judges were limited [17].

Conclusions

In this article we summarized key changes and lessons learned during the history of Ukrainian courts. We can observe two major gaps in the functioning of the judiciary: poor courts’ financing and lack of verification of judges. As for the first one, it is critical that courts’ financing is sufficient and provided by the state. This is the lesson learned from the early 1990s: salaries of judges were low just as courts’ basic financing, both of which gave a way for private individuals and politicians to sponsor those and, in turn, to be able to influence courts and judges specifically. 

Next common mistake through the history of courts in Ukraine until recently was no verification of “old” judges. Only those who entered courts for the first time would face some kind of examination, but not those who remained in the office for years. This is the reason for Soviet judges passing easily to courts of independent Ukraine. With the 2016 reforms, namely the establishment of the new Supreme Court and public involvement into the process of appointment of its judges through the Public Integrity Council, as well as verification of all judges of general jurisdiction courts in Ukraine, the issue was to be resolved. However, the results of the judge examination part of reform have been mixed. On the one hand, as a result of reassessment, many old-system judges resigned and the Supreme Court was fully renewed, attorney and legal scholars were allowed to become judges of higher courts. On the other hand, re-assessment was too negligent (e.g. limit of time given for assessment of judge – about 24 hours) allowing many corrupt judges to stay in the office and to go to the Supreme Court. In particular, a great role in latter was Higher Qualification Commision of Judges disregarding Public Integrity Council evaluation with respect to the Supreme Court judge candidates. Thus many where many from judges named imprudent by PIC made it into the new Supreme Court.

It is important that the appointing organ does not have the power of dismissal, as the parliament had during the presidency of Mr. Kravchuk. Otherwise, one institution would be too powerful and could indirectly exercise pressure on judges. Luckily, this was fixed with the 2016 reform and, today, the High Council of Justice (the self-governing body of the judiciary) is selecting judges while the President of Ukraine formally appoints them. Promotion and dismissal of judges is done by the HCJ exclusively. Unfortunately, as several of HCJ’s members have a questionable past, it is not clear how this mechanism will work in practice. 

Another mistake of Ukraine’s judiciary was overbroad immunity of judges: theoretically protecting judge from any influence but practically allowing for judicial impunity with regard to any crimes, including corruption, apart from very serious ones. This was fixed as well in 2016.

Finally, it may had been a hasty decision to fully liquidate military courts. As became clear afterwards, civil courts are not competent enough to take upon such cases.

A few important improvements were made making judges less prone to external influence: 

• abolishing the five-year probation term (now, judges are appointed for the life-term);
• disregarding “breach of an oath” as a ground for dismissal;
• raising judicial salaries in order to lower incentives for corruption;
• eliminating presidential authority over reorganizing, establishing or liquidating courts (this lowered politicization of the judiciary). 

Hopefully, the measures taken on equipping the judiciary with proper tools to end corruption in Ukraine will show to be effective enough. Indeed, according to surveys made by the USAID “New Justice” Project, the level of public trust in the judiciary in Ukraine is growing: 16% of respondents fully/partially trusted the judiciary in 2018 compared to only 5% in 2015. Particularly, 9% of respondents who took part in court hearings during this period of time trust in the judiciary more. The level of trust of legal professionals is much higher: 38% in 2017 and 41% in 2018. Generally, competitive selection of the Supreme Court judges, regular evaluation of judges around Ukraine, lowering their immunity, as well as restriction of presidential powers on transfer/dismissal of judges are among the top reasons for growing trust of people in the judiciary at the moment.

Finally, creation of anti-corruption organs already helped to uncover and prevent some high-profile corruption crimes and is likely to become a successful part of the judicial reform after the High Anticorruption Court starts its work in September 2019. In particular, with involvement of international experts into selection of judges to the HAC and, thereby, relying on the virtue of the judges chosen, there is a chance that corruption crimes in this country will be finally judged and punished in accordance with the law. Otherwise, economic and social development of Ukraine is fated: where the judiciary is showing signs of minor efficiency, business cannot operate under uncertain circumstances being legally unprotected. As result, flourishing unemployment and falling welfare of the society, which cannot reach its full potential.

Notes

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