Will Ukraine take the unique chance to create a new justice system?

“Reboot of the justice system needs corresponding changes in the Constitution. I’m very upset that they are still not on my table. But there will be no excuses next time. Let’s speed this up.” 

The President of Ukraine Petro Poroshenko, quote of his speech during the meeting of the National Reform Council on December 12, 2014

 

 Ukraine has the lowest in Europe and one of the lowest in the world rate of people’s trust in judicial system. This conclusion was made by Gallup basing on the global opinion poll held in 123 countries in 2013. In Ukraine only 16% of the surveyed trusted the court system. But by the end of 2014 the trust level towards courts in Ukraine came down to 12%. For a comparison: in Estonia, USA, Canada the rate ranges from 50 to 60 percent; Great Britain, Netherlands, Germany – from 60 to 70 percent, Switzerland, Norway, Denmark – over 80 percent. Practically, Ukraine found itself at the bottom, and that calls on the country to take a path of fast and radical reforms.  

Reasons for distrust

According to Razumkov Center’s data, in March 2015 the confidence level towards judiciary went down to the critical 10.6 percent (1.1% of the respondents trust courts completely; 9.5% – mostly trust). It is the lowest confidence rate among government institutions. In comparison to non-government institutions, such trust level equates banks and Russian mass media.

Judiciary in Ukraine is the most conservative system with the telephone rule, and judges are used to be faithful to politicians and oligarchs, getting guarantees against prosecution for corruption. Sociological research data also confirm that.

The most common reasons of low trust for courts in Ukraine are: corruption abundance among the judges (94%); dependence of judges on politicians and oligarchs (80%); approval of ordered judgement (77%); mutual cover-up within judicial system (73%); low morale of judges (66%).

Since gaining its independence, Ukraine has been receiving substantial political, financial and expert aid in the sphere of judicial system reforming from USA, Canada, European Union, Council of Europe and separate European countries. Nevertheless, all the attempts to reform the judiciary during those twenty four years of independence didn’t succeed at the end of the day.

In 2010 president Yanukovich initiated a reform allowing the political powers of that time to establish total control over the justice system. The most vivid demonstration of abuse of power of the court system happened at the end of 2013 and beginning of 2014 during EuroMaidan. At that time with the help of law enforcement agencies and judges Yanukovich wanted to put an end to peaceful protests, detonated by severe beating of students by the police who stood up for the Association Agreement with EU. But the widespread judicial outrage exacerbated the situation. Peaceful protests turned into the Revolution of Dignity and caused the fall of Yanukovich’s regime.

 

Opportunity missed by judges

Soon after the Revolution of Dignity, in April 2014, reformatted Parliament made an unprecedented move – by the law on the restoration of trust in the judiciary in Ukraine judges were given a huge opportunity for self-governing. The powers of Supreme Council of Justice and High Judicial Qualifications Commission were terminated; those institutions took prominent position in the mechanism of usurpation of power by Yanukovich. Also were fired all court chairmen assigned by Supreme Council of Justice who were some kind of nerve cells transmitting impulse with assignments from political power to judges. The legislator gave judges a chance to change the system from within.

Sadly, judges didn’t take this chance and didn’t satisfy society’s expectations for changes. Judiciary represented by the new self-governing organs didn’t want to acknowledge liability for sailing in the same boat with Yanukovich’s regime, serving him and approving his acts of folly. The meetings of judges in courts re-elected 80 percent of the former court chairmen. By means of judicial orders the formation of Supreme Council of Justice was blocked for over a year, and without it no judge could’ve been dismissed. The new judicial council made decisions that created opportunities for hierarchal management of the courts. Chairmen of Yanukovich period stood their ground for a long time.

Public disclosure of judges’ property declarations (as a result of the new law on purging of power) obviously showed that assets of majority the judges do not correspond to their income – huge land properties, houses and apartments, executive-class cars, etc., all along with low income. And that’s just the top of the iceberg, because various schemes of declaration avoidance gave an opportunity to hide their riches. At the same time the legislator couldn’t oblige the judges to prove legality of prior incomes and expenditures, due to retrospective law effect forbidding. And judges take advantage of that, referring to high incomes of their family members which legality doesn’t need to be confirmed. Any tax administration claims are easily canceled by the very courts.

Neither courts nor the judges gave the society any positive sign of changes during the year after the Revolution of Dignity. On the contrary, most of the signs were negative: obstructing purging of prosecutors and officials by judicial orders, justifying scandalous Landik and Melnyk, assisting in the escape of Berkut commander Sadovnyk, who was accused in shooting protesters, drunk and armed judge Oberemko driving a car, judicial robe with pockets where the head of Kyiv Appeal Court Chernushenko hid money, the judge who’s said to settle cases based on the text messages from his son, not the law; and so on and so forth.

 

Need for constitutional changes

Petro Poroshenko admitted the need of constitutional changes from within over half a year after being elected, and he even formed Constitutional Committee for that purpose.

Reforming judicial system through constitutional changes is usually treated as a need to bring Ukrainian judicial system into compliance with European standards. In the first place this means the need:

– to simplify the judicial system by reducing the levels of the courts, make provisions for court formation through the law only;

– introduce termless appointing of judges, remove the Parliament from decisions regarding career of judges;

– ensure that the High Council of Justice has the majority of judges elected by judges;

– narrow the circle of the immunity of judges.

Most of these changes were promoted by Yanukovich when he considered himself to be the “European integrator”. He realized that not only it won’t hurt to build the system of influence, but on the contrary, this will enforce it on constitutional level and even will remove the potential rival – the Parliament – from the system. Venice Commission was satisfied by the project of constitutional changes. The Commission was persuaded that the President would only perform ceremonial functions with regards to judges. Latent actions obviously were not evaluated.

Last summer the post-revolution Parliament had failed in such changes, as it was expected. But the issue of refreshing the Constitution was still on the agenda. The work group within the Constitutional Committee drafted a new project of constitutional changes that differs from Yanukovich’s draft mostly by the form, not the idea.

Obviously, Ukraine has to implement European standards. It is interesting that 43% of citizens support the idea that judges should be appointed by a special agency that would be independent from legislative and executive powers, which members would be judges and public members (new Supreme Council of Justice or a similar institution). This suggestion is even more supported than the idea of electing judges by citizens (28%). Maintaining a status quo – appointing judges by the President or the Parliament had found equally low support by Ukrainian society (4% each). Are the positive changes possible if over half of the new Supreme Council of Justice is composed of the judges elected by judges in the conditions when the image of a corrupted, vicious puppet judiciary is automatically transferred to this new agency?

The introduced by President’s initiative the law on fair trial envisages a mechanism of “recertification” of judges. Every judge will need to come to the High Judicial Qualifications Commission and pass a knowledge test and an interview after the judge’s profile is reviewed. In case the commission has any concerns, the judge will have to receive training in the school of judges. The judge will need to face the Commission once again. And only after that, if the evaluation is negative, a judge can be dismissed.

However, experts are skeptical as to this mechanism and compare it to unsuccessful “re-evaluation” in police implemented in 2005 by Yurij Lutsenko when he was the Minister of Interior. This re-evaluation didn’t prevent the events in Vradiivka, and it even didn’t hurt the re-evaluated militia to beat Yurij Lutsenko during revolutionary events in winter 2014.

Knowledge testing and evaluation of case statistics will not reveal corrupt judges and conformists. On the contrary, good judges might resign not willing to go through this humiliating procedure. At the same time their places – in higher level courts – could not be taken by people outside the judicial system. Positions in such courts could be only taken by people with at least 5-year experience in local courts. So the vicious system will reproduce itself.

 

Catching at a straw for survival

So is there any way to prevent the preservation and reproduction of the system that is seen by the society as totally corrupt, unjust, ineffective, dependant on politicians and oligarchs?

There are two possible ways. First one is evolutional. Europeans like it, but it may become profanation in the real life of Ukraine. It takes time till the judges who trade conscience, take bribes, live in luxury and execute orders from above will suddenly become honest or resign voluntarily. This way includes simultaneous enforcement of anti-corruption and educational events for judges, bringing new people into the judicial system as vacant positions appear. The passive system will try to reproduce itself, institutional memory will be activated. It’s hard to expect a quality result in such conditions, because the new blood (if there’s not much of it) will be infected by the viruses of the old one.

The other way is radical, but more effective in its potential. Considering serious challenges, a new simplified judiciary system should be established through constitutional changes; and judges will be hired from a new start. In order to purge judiciary, every judge who wants to continue to work in courts, has to participate in a fair open competition together with other applicants outside the judicial system. Higher level courts should also accept specialists with no prior court experience, but who are honest and decent people. It would be a plus if such people have western education, share European values and know foreign languages.

In order to form this new judiciary there is a need to establish through transitional provisions a temporary commission consisting of resigned reputed judges, judges from European Court of Human Rights in particular, first calling of the Constitutional Court of Ukraine, human right activists, lawyers from Diaspora. The members of the Commission should have unblemished reputation and moral authority in the society.

During two-three years period the Commission could arrange competitions to fill appointments in the new judiciary system. The powers of judges who don’t demonstrate desire to participate in such competition have to be automatically terminated by the corresponding constitutional provisions. The powers should be also terminated if a judge wasn’t appointed according to the competition results.

Only by forming a new judiciary it’s possible to establish a brand new independent High Council of Justice that would be responsible for recruitment, career development and punishment of judges. And then there will be no need to explain why its majority should consist of judges elected by judges. It goes without saying that the new judges would be able to earn great reputation faster than the present judges would say good-bye to their hopelessly destroyed reputation. Trust is earned easier than renewed.

Today’s Europe doesn’t have many examples of such reforms. Eastern European countries didn’t come to purging the courts. They took the path of increasing judiciary independence and increasing social status of a judge. But they couldn’t avoid mutual cover-up, nepotism, clanship and impunity of the judges with communist background or the ones “raised” during the functioning of this very system. Last year Slovakia having 28-30% trust level for judiciary had also tried to take action in order to purge the judiciary system. But European establishments criticized such changes, because there was no transition from totalitarian to democratic system lately in Slovakia, and the Constitutional Court of Slovakia stopped implementation of those changes.

On the other hand, in 2002 Bosnia and Herzegovina took the path of purging the judiciary system through constitutional changes and structural change in the court system. After the war, international community supported such changes. The experience was successful.

 

In Ukraine there are favorable conditions for forming the judiciary from among honest and decent people – departure from totalitarian regime, failure of trust for the acting judges, need in effective mechanisms of defense of right, need to implement European standards, political will to conduct such a reform. Not to take this opportunity would mean that the country will further go down the drain, because the rights, property and investments will still be unprotected by an independent and honest court. In the nearest future it would mean losing sovereignty and independence of Ukraine, and we have no right to allow that to happen.