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Ukraine’s ongoing judicial reform is hailed by the nation’s authorities as a major breakthrough on the road to a rule-of-law nation that fights corruption.
But civil society watchdogs following the issue say that the process lacks transparency and may turn out to be yet another cosmetic reform, with no substantial changes to courts whose 6,200 judges are widely distrusted by the public.
This scenario is also likely because Ukraine’s hyped prosecution and police reforms suffered major failures in the last two years, with the old guard still dominating the corrupt, politicized and ineffective law enforcement agencies.
The judicial reform legislation passed in summer envisages recruiting a new Supreme Court through an open competition.
But experts argue that the competition is being manipulated to promote candidates loyal to the authorities, with the new Supreme Court becoming a political tool of President Petro Poroshenko, despite his denials that he is trying to influence the judiciary.
Under the reform laws, the president and parliament were supposed to be stripped of the right to appoint judges, with the High Council of Justice empowered to be the main decision maker in appointments. However, the president retained the supposedly symbolic right to appoint judges nominated by the council, and he is believed, despite his denials, to influence that body.
The reform also provided for an independent anti-corruption court, but Poroshenko has effectively rejected that idea – or at least not offered any legislation to get the court up and running, while objecting to other lawmakers’ proposals for such a court.
The courts “must recognize their responsibility to society and regularly remind other branches of government of the existence of the law,” Roman Brehei, a judge of the Kirovohrad District Administrative Court, told the Kyiv Post. “The main reason for their reluctance to do so is fear of other branches of government. Judicial reform is urgent, but I’m not sure it will bring the results desired by society, because no one can force a person not to be afraid.”
Anna Bondarenko, a judge of the Kyiv Commercial Court, argeed, saying that “the judiciary is still dependent on the executive and legislative branches of government.” One of the reasons is a lack of financial independence, she added.
Pulling strings?
In 2015, Anton Chernushenko, the ex-chairman of the Kyiv Court of Appeals, who fled the country after being charged with unlawfully interfering in the distribution of cases, accused Poroshenko and his Deputy Presidential Administration head Oleksiy Filatov of ordering him to issue certain rulings promoting the president’s interests. Filatov and Poroshenko denied the accusations.
Poroshenko’s top ally and lawmaker Oleksandr Hranovsky has also been accused of pulling the strings of the judiciary, which he also denies. He has been filmed meeting judges, and some judges in Kyiv have issued controversial rulings in favor of Hranovsky and Poroshenko.
Meanwhile, 13 of the 16 members of the High Qualification Commission, a governing body of the judiciary, are seen as pro-presidential, while the remaining three have ambiguous views on reform, according to activists interviewed by the Kyiv Post.
At the High Council of Justice, three out of the 19 members are seen as independent-minded reformers, while the remaining members are pro-government.
“Just take a look at who runs the High Qualification Commission and High Council of Justice – people delegated by the People’s Front and the Poroshenko Bloc,” Brehei said. “Is independence even possible here? It’s important that most judges in these bodies gave leadership to them without any struggle. They are giving up authority and are violating the separation of powers, as well as the Constitution.”
The High Council of Justice has denied being influenced by the president, while the High Qualification Commission declined to comment.
Apart from Poroshenko’s influence, associates of Serhiy Kivalov, a former head of the High Council of Justice and an ally of ex-President Viktor Yanukovych, and Yanukovych’s former deputy chief of staff Andriy Portnov are also said to retain a great deal of influence on the judiciary.
Kivalov’s court
The current attempt at judicial reform is not the first one. Former presidents Leonid Kuchma and Viktor Yanukovych also tried to restructure the judiciary, with the ultimate goal being to strengthen their grip on the courts rather than make them independent.
“The rules and the (judicial) system have changed little (since the EuroMaidan Revolution),” Judge Bondarenko said. “… After Ukraine proclaimed independence in 1991, judicial reform was launched by every new government but was never completed.”
In 2015 then Prime Minister Aresniy Yatseniuk unveiled an ambitious reform plan that envisaged fully replacing incumbent judges, an open and transparent competition for judges’ jobs and fully removing political influence on the courts. But nothing similar to this plan has been implemented so far.
The Reanimation Package of Reforms, the Anti-Corruption Action Center and the AutoMaidan protest group have accused the High Qualification Commission of “colluding” to manipulate the results of the ongoing competition for the new Supreme Court. The commission declined to comment on the accusations.
“We saw a trend,” said Mykhailo Zhernakov, an expert at the Reanimation Package of Reforms. “Those who are seen as very qualified did not pass, those who are clearly politically connected… got the highest ranking (positions).”
At the Administrative Cassation Court, a sub-unit of the new Supreme Court, candidates got more scores for “guessing” the supposedly right case verdicts than for the legal quality of their rulings, he argued. To promote necessary candidates, the commission could have just informed them of the right verdicts, according to Zhernakov.
He also published a chart showing that the results of the tests do not meet normal (Gaussian) distribution – a mathematical notion that shows whether a certain distribution of numbers is random or manipulated.
Another controversial decision was that the High Qualification Commission on March 29 allowed 43 candidates who had not gotten sufficient scores to take part in the third stage. Critics saw this as an effort to promote politically loyal applicants.
Moreover, the High Qualification Commission has refused to fully disclose the profiles of applicants, saying that much of that information is confidential. Thus far, less than half of the profiles have been published, and many of those that are available have had crucial information, including on candidates’ family ties and potential conflicts of interest, removed.
The High Qualification Commission has also refused to broadcast interviews with the candidates online, the activists said.
Another problem is that the share of candidates from outside the notoriously corrupt and politicized judiciary is relatively small. Of the 382 candidates, 299 are incumbent or former judges, and 83 are lawyers and legal scholars, the Chesno civic watchdog group said on March 31.
Last year Filatov cited an opinion poll according to which only 16 percent of the population trust incumbent judges.
One applicant who got a high score is Pavlo Vovk, the chairman of the Kyiv Administrative District Court. Vovk used to be an aide to Kivalov and is an associate of Hranovsky.
Meanwhile, the work of People’s Front lawmaker Leonid Yemets, who did not pass the tests, was assessed by Yury Titov, an ally of Yemets’ political enemy Kivalov.
“It turns out that an ally of Kivalov is in charge of assessment in a competition in which a (former) aide to Kivalov wins, while Kivalov’s opponents lose,” Zhernakov said.
Anastasia Krasnosilska, an expert at the Anti-Corruption Action Center, said that the High Qualification Commission had promised that the shortcomings would be resolved.
“Four weeks have passed and basically almost nothing is being done, which means we cannot rely on any promises or oral communication with the High Qualification Commission of Judges,” she said. “The only thing we trust in is amendments to the rules of procedure.”
A woman walks by the statue of Lady Justice outside of Kyiv Appeal Court on April 4. (Kostyantyn Chernichkin)
Anti-corruption court
The problem of judicial independence could be partially resolved by the creation of an anti-corruption court recruited through a transparent procedure by experts including foreigners. But the authorities have been dragging their feet on the issue since June.
In February Yegor Sobolev, the chairman of parliament’s anti-corruption committee, sponsored a bill to create an anti-corruption court. However, in March the High Council of Justice claimed that the bill contradicted the Constitution, which was seen as proof of the council’s dependence on Poroshenko. Krasnosilska said that the Presidential Administration was refusing to either accept Sobolev’s bill or propose its own legislation on anti-corruption courts. She said that most probably no such courts would be created, and corruption cases would be considered by the Supreme Court.
No one fired
Meanwhile, Yanukovych-era court chairmen have retained their jobs after the EuroMaidan Revolution due to a bizarre legal interpretation that enabled them to become chairmen for a third, fourth and even fifth time. Another problem is that the terms of 778 judges appointed for five year periods have expired, and Poroshenko and the parliament have been dragging their feet on appointing them for life, creating a massive shortage of personnel in the judiciary.
Civic activists proposed holding transparent competitions for the 778 job openings. But instead, the authorities are refusing to appoint them in a transparent way, Zhernakov argued. Poroshenko on April 3 appointed just 113 out of the 778 judges for life.
The High Qualification Commission has also touted the vetting of judges in 2016 as an achievement. But Zhernakov, Roman Kuybida, an expert at the Reanimation Package of Reforms, and Roman Maselko, an AutoMaidan lawyer, dismissed the vetting procedures as largely meaningless.
No one was fired as a result of vetting, because the High Qualification Commission neither had the power to fire those who failed the vetting process, nor asked the High Council of Justice to dismiss any of them, the experts said.
