Experts have called for a bigger role for international actors in Ukraine’s attempts at judicial reform, including possibly the hiring of foreign judges to revamp the country’s corrupt court system.
The proposals were made at an online discussion on judicial reform organized by the Atlantic Council on June 9. The discussion was moderated by Melinda Haring, deputy director of the Atlantic Council’s Eurasia Center.
The experts concurred that a lack of an independent and fair judicial system is the biggest obstacle to foreign investment in Ukraine.
“We asked members of the American Chamber of Commerce who is the biggest barrier to doing business in Ukraine, and 74 percent of businesses see courts as the biggest obstacle,” said Andy Hunder, president of the 600-member American Chamber of Commerce in Ukraine. “That’s what deters foreign companies entering the market because you can’t get fair justice.”
Hunder also cited a February poll by the Razumkov Center according to which 76 percent of Ukrainians do not trust the courts.
In May Ukrainian media and anti-corruption watchdogs published a leaked new judicial reform bill that ostensibly seeks to unblock President Volodymyr Zelensky’s stalled judicial reform. However, legal experts say the legislation is flawed and will not lead to genuine cleansing of the judiciary.
The bill that seeks to re-launch the reform was heavily criticized by anti-corruption activists and judicial experts, who argue that in its current form it makes genuine judicial reform impossible.
Foreign judges
Hunder said that businesses are discussing the possibility of inviting foreign judges to Ukraine to introduce the rule of law. He cited the examples of Kazakhstan, which has created a commercial court out of British judges, and Dubai, which has hired foreign judges for civil and commercial disputes for its Dubai International Financial Center.
“We are looking at the possibility of having jurisdiction of England and Wales for all kinds of dispute resolution,” Hunder said.
The irony is that currently Ukrainian oligarchs use foreign courts “if they want to have justice” but are against allowing Ukrainian citizens to have fair courts, said Yaroslav Yurchyshyn, an anti-corruption expert and a lawmaker from the Holos (Voice) party. Oligarchs are fighting against the participation of foreigners in Ukraine’s judiciary by appealing to the false “sovereignty” argument, he added.
An independent judiciary “is good for Ukrainian society but bad for oligarchs’ influence,” Yurchyshyn said.
Foreign experts
The experts also argued that the participation of foreigners in the selection of judicial bodies was crucial for fixing Ukraine’s broken court system.
“Bringing in international referees who are not corruptible by the elites here and cannot be bribed or influenced lends us integrity and good practices,” said Mykhailo Zhernakov, head of DEJURE Foundation, a legal think tank.
Andriy Kozlov, a former member of the High Qualification Commission of Judges, agreed that foreign experts should be hired to revamp Ukraine’s judiciary.
“Any system is anti-reformist by nature,” he said. “There should be either some internal revolutionary movement, which is probably impossible for the judicial system, which is corporate and retrograde, or there should be some external political will and probably some external participation.”
He added that “people from (foreign) judicial systems who have a well-established policy and way of acting can contribute much to the selection of judges and qualification assessment.”
A new bill recently drafted by President Volodymyr Zelensky’s administration envisages that three foreign experts for choosing a new High Qualification Commission of Judges may be nominated by any international organizations that engage in anti-corruption efforts and judicial issues. The High Council of Justice, Ukraine’s main judicial governing body, will then choose any of the nominees.
Legal experts and anti-corruption activists argued that this procedure makes it very easy for the High Council of Justice to pick “fake” foreign experts who would rubber-stamp Ukrainian authorities’ decisions instead of independent foreign experts.
Under previous reform plans that have been scrapped, foreign experts were to be selected out of the Public Council of International Experts, which took part in the selection of High Anti-Corruption Court judges last year. Its members were praised by Ukraine’s civil society for independence and professionalism.
Anti-corruption court
Experts argued that the High Anti-Corruption Court, which was set up in 2019, could become a success story due to the participation of the Public Council of International Experts in the selection of its judges.
“Although judicial reform has not been successful in recent years, the one counter-example was the anti-corruption court,” Zhernakov said. “Does it make mistakes? It does. Are there some judges that are not as good as we would like them to be? Sure, there are. Are there judges who issue some strange decisions? There are.”
But Zhernakov still argued that, compared to other courts, the anti-corruption court was doing better.
Meanwhile, the Anti-Corruption Action Center has recently criticized some judges of the High AntiCorruption Court for closing the case against ex-State Audit Service head Lidiya Havrilova on charges of lying in her asset declaration, taking an electronic bracelet off Vadym Alperin, a smuggling suspect, and removing the bail requirements imposed on former lawmaker Maksym Mikitas, who has been charged with embezzlement. The court did not respond to a request for comment.
“The whole selection procedure for the anti-corruption court made a great difference,” Kozlov said, referring to the participation of the Public Council of International Experts. “For me the biggest success would be if somewhen in the future this court treats a case against some incumbent officials with vigor and audacity.”
Copypasting
Instead of truly borrowing the concept of rule of law from Western countries, Ukrainian authorities often appeal to European standards to protect the corrupt judiciary’s impunity.
“What we want is international experts sitting with us for once to select good judges,” Zhernakov said. “What we don’t want is to copypaste models of judicial governance from the West.”
He said that “the judicial self-governance rule where there should be a majority of judges in judicial governance bodies” works in established democracies but not in Ukraine.
“This makes sense when you trust your judiciary and trust them to make decisions on their own behalf,” Zhernakov continued. “When the judiciary is not trusted, it does not make sense to give the same judges control over the process.”
Stalled judicial reform
The previous judicial reform bill was signed by Zelensky into law in November with the ostensible aim of firing tainted judges and creating credible judicial institutions. However, two bodies tasked with cleansing the judiciary had not been created by the deadline set under the law for February.
In March the Constitutional Court, which has been also discredited and mired in corruption scandals, dealt a death blow to the previous reform bill, canceling some of its clauses.
The President’s Office recently drafted a new bill to re-launch the reform. However, the new bill was heavily criticized by anti-corruption activists and judicial experts.
“The new bill doesn’t go anywhere near effective reform, and it doesn’t do anything in terms of renewal of the High Council of Justice, which is responsible for the failure of judicial reform,” Zhernakov said. “If it is introduced in the same way (as it was leaked to the press), it will be nowhere near effective reform and something else has to be done.”
One of the main problems is that the draft legislation fails to cleanse the judiciary’s discredited governing body, the High Council of Justice, and allows it to have full control over the hiring of another judicial body, the High Qualification Commission.
“The same High Council of Justice that was responsible for the failure of judicial reform in previous cases has too much power and control over the process of the implementation of the reform,” Zhernakov said. “Instead of firing bad judges and protecting good and independent judges, it goes after independent judges and prosecutes them and keeps bad judges in place.”
According to the new bill, the High Council of Justice will prepare rules for a new competition for High Qualification Commission jobs. Judicial experts and activists say that this will prevent a real reform from happening.
In December the High Council of Justice published rules on the new High Qualification Commission that judicial experts say killed the previous judicial reform attempt. The rules effectively deprived foreign experts of a major role in the selection of High Qualification Commission members.
The United States Agency for International Development officially told the High Council of Justice that foreign experts’ role cannot be fulfilled due to the rules.
Hunder and Yurchyshyn said they hope the International Monetary Fund would influence Ukrainian authorities’ legislation on judicial reform. Judicial reform is one of the conditions of the $5 billion credit package approved by the IMF for Ukraine on June 9.
