September 20, 2018
The constitutional changes related to the judicial system have been in force in Ukraine already for two years. They were aimed at strengthening the independence of judges and laid a good legal basis for this purpose, as well as for cleaning up of the judicial manpower. However, in practice, achieving these goals turns to be unsuccessful.
According to recent sociological surveys, 66% of citizens believe that since the Revolution of Dignity, the situation in the area of justice has worsened or did not change, and only 25% see positive changes. The vast majority of citizens (73%) consider the progress of judicial reform to be unsuccessful (while 43% of them believe it to be a complete failure); and only 10% estimated this reform as successful. The level of trust in courts is 7%. According to the European Business Association, for the third year in a row, corruption and distrust of courts in Ukraine are the main obstacles to foreign investments.
What were the legislative changes about?
Amendments to the Constitution of Ukraine and the new Law “On the Judiciary System and the Status of Judges” of 2016 provided an opportunity to:
- transfer from the four-tier to three-tier system of courts;
- launch competitions for judges’ positions, including the formation of a new Supreme Court on a competitive basis;
- restrict the judicial immunity;
- introduce an appointment of judges for unlimited term.
- deprive political bodies of the powers of dismissal of judges.
All issues related to the selection, promotion and dismissal of judges became exclusive competence of judicial governance bodies – the High Qualifications Commission of Judges (HQC) and the High Council of Justice (HCJ). This meets the standard of the Council of Europe.
In order to clean the judicial system from unprofessional and corrupt judges, a one-time procedure for the evaluation of all current judges has been introduced according to criteria of competence, integrity and professional ethics.
Why did not progressive legislative changes significantly affect practice?
Cleaning up of the judiciary system was entrusted to the authorities … with the majority of the judges in their composition (HQC and HCJ). It was a fatal mistake, but rather a conscious intention of political power, backed by the Council of Europe.
By their activities, these authorities have kept all the negative phenomena in the judicial system – mutual guarantee, execution of political orders, and tolerance of various manifestations of the lack of integrity.
A vivid illustration of this process is the last year’s contest to the new Supreme Court, which became the first project within the judicial reform. The Public Council of Integrity as an agent of civil society has joined the analysis of candidates, has revealed numerous facts of false declaration of property, inconsistency of one’s lifestyle to his/her income, the adoption of politically motivated decisions, gross violation of human rights, as confirmed by the European Court of Human Rights. These facts did not prevent the appointment of such candidates to the Supreme Court. Moreover, the winners were defined in a manipulative and non-transparent way.
This year, more than 1000 active judges of almost 6 thousand have been evaluated according to a similar testing procedure. “Deselection” based on the integrity criterion reached the level of 3%. There have been cases already where the National Anti-Corruption Bureau of Ukraine (NABU) detained a bribe of judges who have just been successfully evaluated.
A low level of integrity can be explained by the fact that many members of the HQC and the HCJ themselves do not meet this criterion. The majority of the population does not believe in their ability to give independent evaluation to their colleagues and punish them for the offenses committed.
During competitions or evaluations, loyal judges receive privileges. Of course, this criterion is not provided by the law. However, psychological tests, the so-called integrity tests, among other things estimate the level of … loyalty to management and commitment to the rules of the corporate community. This has prevented selection to the new Supreme Court of the agents of change including probably Serhiy Bondarenko, the judge-revealer, who demonstrated an excellent professional level, but subsequently fell below the rating.
A recent public report on the state of independence of judges has shown that court presidents still have an impact on judges. If one of the judges tries to disclose the intervention of the court president, judicial bodies present it as an internal conflict between two people, and not as an infringement of the independence of the judge. There is a case of disciplinary punishment of a judge, Larysa Golnik, who tried to defend herself from such interference. By law, this may be an obstacle to her participation in the competition to the Supreme Anticorruption Court, which has just begun.
Loyalty of judges results in impunity – such judges not only successfully pass the evaluation, but also avoid disciplinary penalties. The favorability of the HQC and the HCJ increases the loyalty of judges, as it brings a sense of gratitude and confidence in impunity. Thus, the majority of judges who, at the request of the administration of ex-President Yanukovych (now hiding in Russia), rendered arbitrary judgements to the participants of peaceful assembly, managed to keep their positions. Dependent judges appeared to be necessary for the new political power.
A progressive constitutional provision about the possibility of dismissal of a judge for breaking an obligation to prove legality of the origin of property was dead in practice – it has never been used.
With the creation of NABU, judges became more often prosecuted for corruption crimes. However, none of the cases ended with a sentence – courts are delaying the consideration. The impunity of high-level corruption has become one of the reasons for the formation of an anti-corruption court. The establishment of such a court became possible only through the pressure of the international community and civil society. But a decisive word in the formation of this court will again be given to the HQC and the HCJ in their current composition.
In fact, Ukraine needs to restart the judicial reform. Under conditions of transformation, bodies for the selection of judges and bringing them to disciplinary responsibility should include the majority of representatives of the civil society, and not the judges themselves. The decision-making process should be transparent and decisions well-founded so that the fairness of the result is obvious. A high level of loyalty should draw attention to a judge (candidate) from the point of view of his/her ability to be independent and not appreciated as an advantage. The behaviour of a judge should be in line with the high expectations of society regarding integrity and ethics. In case of serious claims to a judge, the possibility of re-evaluation should be foreseen.
Author: Roman Kuibida, Centre of Policy and Legal Reforms (Kyiv, Ukraine)Author : Ukrainian Liaison Office in Brussels