Has the Supreme Court ever committed corruption?

Ukraine analyzes

Maria Popova

To person

Prof. Dr. Maria Popova is an Associate Professor of Political Science and the Jean Monnet Chair at McGill University in Montreal, Canada. She holds a bachelor's degree in Government and Spanish from Dartmouth College. She completed her master's degree and doctorate in government at Harvard University. Maria Popova researches the interface between politics and law and has published on the rule of law, judicial reform, corruption in politics, populist parties and the repression of political opposition by law in authoritarian regimes. Her book on Russian and Ukrainian Courts in the 1990s and 2000s, Politicized Justice, was published by Cambridge University Press in 2012 and won the 2012-2013 American Association for Ukraine Research Award for Best Book in History, Politics, language, literature and culture of Ukraine

Mykhailo Zhernakov

To person

Dr. habil. Mykhailo Zhernakov is Chairman of the Board of Directors of the DEJURE Foundation, Coordinator of the Social Council for Integrity (HRD) and a former judge. In February 2015, he resigned from his post as a judge to devote himself full-time as a civil society representative to judicial reform. In 2016 he co-founded the DEJURE Foundation, which is a leading non-governmental organization in the field of judicial reform in Ukraine. He received his doctorate in law in Kyiv in 2009 and an LL.M. in 2010. in Bologna, in 2016 he completed his habilitation (doctor nauk) in Kyjiw in law.

Unfortunately, the judicial reforms of recent years have not resulted in any substantial improvements in the judiciary. Problem points include the lack of will to implement reforms and the judges' lack of independence.

Kiev, January 2014: An opposition protester in front of police officers. (& copy picture-alliance / dpa)

Summary

The governments of Petro Poroshenko and Volodymyr Selenskyj introduced a number of institutional and legislative changes in the judiciary. The promise of Revolution of Dignityto ensure the rule of law has remained largely unfulfilled. The ambitious restructuring of the judiciary had little impact on judicial norms and practice. There are several reasons for this: First, the commitment of the political elite to the rule of law is superficial at best and feigned at worst. Secondly, there is only a weak lobby in the judiciary itself, which advocates promoting reforms, taking them seriously and implementing them. The reform strategy to allow the judiciary more self-government was misguided. Rather, the control of the selection process for judges by civil society and international experts should be expanded.

If ever a country seemed ready for a breakthrough in the rule of law, it was Ukraine in 2014. The mass protests of the Euromaidan had made it clear how great and lasting the desire for the rule of law is, which is of central importance for the development of a well-functioning judiciary is looked at. During the Revolution of Dignity that ultimately toppled President Yanukovych, the average protester took to the streets for the rule of law much more than for European integration, Ukrainian nationalism or an opposition party.

Since 2014 Ukraine has an institutional or de jure Independence created by many as a requirement for judges de facto independent courts and rule of law is considered. The Maidan-friendly majority immediately turned their attention to judicial reform. A few weeks after the revolution, the judges in Ukraine were given a stronger instrument for self-administration: in each court, the ordinary judges could elect their chairman in a secret ballot. Under Poroshenko, nearly a dozen new laws brought the institutional design of the Ukrainian judiciary more into line with what is considered best international practice. The Zelenskyi government pushed through its own institutional changes to the judicial system, saying it was continuing to build an independent judiciary and strengthening the rule of law.

There is intense political competition in Ukraine. Both Poroshenko and Zelenskyi have faced fierce opposition from all sides: from the official opposition, from former allies in parliament and even from ambitious political officials. Some scholars believe that intense political competition encourages the emergence of independent courts for several reasons. First, it makes it harder for the incumbent to control the courts. Second, it created incentives for incumbents who know they will be relinquishing their power in the foreseeable future to create an independent judiciary as a safeguard against future prosecution. And thirdly, it offers judges incentives to distance themselves from political overlords because they know that their political survival is limited.

Last but not least, Ukraine has been exposed to pressure from foreign investors and European conditionality, which are considered to be the most important catalysts for successful reforms towards more rule of law. The European Union (EU) and the International Monetary Fund (IMF) have closely followed the judicial reform, offered some carrots (loans and visa-free travel) and threatened to withhold it again if they got the impression that a Ukrainian government was doing their part is too hesitant for judicial reform and the rule of law.

Unfortunately, despite a whole list of promising factors in favor of independent courts, the promise is the Revolution of Dignity to ensure the rule of law has remained largely unfulfilled. The ambitious restructuring of the judiciary has brought few visible signs of change in practice. There is growing concern, both in Ukraine and among its international partners, that the courts are just as dependent and corrupt as they were in the past.

This article takes stock of the staggering number of institutional and legislative changes that the Poroshenko and Zelenskyi governments have brought about. The aim is to examine the remarkable range of these changes as well as their astonishingly small effects on judicial norms and practice. Despite the supposedly radical break with the past, the actual circumstances do not suggest that the work of the Ukrainian courts has changed in any profound and lasting way. The ambitious reform agenda has produced few substantial changes. There are two reasons for this disappointing state of affairs: First, the political elite's commitment to the rule of law is at best superficial and at worst faked. And secondly, there is only a weak lobby in the judiciary itself, which advocates promoting reforms, taking them seriously and implementing them.

The Poroshenko Years

Under President Poroshenko, the Verkhovna Rada passed no fewer than eight important new laws. These include a number of constitutional amendments that were intended to reshape the judiciary. The first of these laws was passed under Executive President Turchinov on April 8, 2014, six weeks after Viktor Yanukovych left the country. The Law on Restoring Confidence in the Courts , commonly referred to as the "Law for the Lustration of Judges", established the automatic dismissal of all executives in the judiciary, the court presidents and their deputies, the members of the High Appeal Commission for Judges (WKKSU) and the High Council of Justice (WRP) (see . Diagram 1 on page 20). By law one should ad hoc -Commission to be created to investigate and punish judges who committed human rights abuses during the Maidan. Further new laws followed in February 2015, June 2016, January 2017, July 2017, October 2017 and June 2018. They restructured the Supreme Court, dissolved the specialized courts created by Yanukovych, and the longstanding power of the President to dissolve, reorganize and re-create eliminated by courts, all existing judicial administrative institutions reconstituted and some of the most important codes amended.

In the Poroshenko years there was a fireworks display of new institutional foundations within and around the court system. The Supreme Court, the Constitutional Court and the High Council of Justice (WRP) have been given new judges, responsibilities, powers of action and an organizational structure. In addition to the WKKSU, the new Social Council for Integrity (HRD) was created at the end of 2016, in which representatives of civil society are extensively present to review candidates for judicial offices. A high anti-corruption court (WASU) was initiated. Beyond the judicial system, a number of institutions have been created to fight corruption. The creation of these institutions can also be seen as part of the judicial reform. They redefine the framework for criminal investigations into corruption, for which the judiciary currently has the most important mandate. However, it has not yet been able to fulfill this mandate. The actions of the new institutions to fight corruption could very well have an impact on the functioning of the judicial system. First, the National Anti-Corruption Bureau of Ukraine (NABU) came into being in March 2015. It is an autonomous institution whose director is appointed and appointed by the President, but cannot be dismissed by him. NABU can investigate political corruption at the highest state level, but cannot prosecute it.

In September 2015, the Special Prosecutor for the Fight against Corruption (SAP) was created by decree of the General Prosecutor. SAP oversees the legality of NABU's investigations and takes on criminal prosecution in NABU cases. Within the executive branch, the National Agency for the Prevention of Corruption (NASK) was launched in August 2016. The mandate of this agency focuses on shaping government policy in relation to the fight against corruption. Most of the changes coincided with what was seen as best practice in the institutional design of the judiciary: strong judicial self-government, powerful courts with broad competencies, and institutional isolation from political influence. Studies indicate, however, that "judicial self-administration" in the transition countries of Eastern and Central Europe, where the judicial system has not been systematically renewed, is a model that can be described as questionable or simply disastrous. The Venice Commission of the Council of Europe as well as a number of other respected organizations believe that judicial administrative bodies in countries such as Ukraine should not be "self-administered" in order to combat the particular interests of the judiciary and nepotism, but rather have a considerable number of members who are not involved in the judiciary civil society (http://en.dejure.foundation/library/european-standards-for-the-judiciary-and-how-they-should-be-applied).

Unfortunately, the mistake of strengthening "judicial self-government" has again been made. The informal norms that emerged in the behavior of the post-Soviet Ukrainian judiciary have outlived the attempts at judicial reform under Poroshenko. Compliance with the chairman of the court continues to exist, especially in the case of courts of lower instance. An analysis of the election of the court presidents in April 2014 shows that the ordinary judges did not use the direct elections to bring about significant changes in the courts. On the contrary: continuity and retention of leadership positions prevail in the entire hierarchy and in all regions of the country, as more than 80 percent of the chairmen retained their positions. The dominance of the executive over the judicial administrative bodies through the appointment of "president-friendly" members in bodies of judicial self-government continues. After an initial power struggle with old elites in the judiciary, the government under Poroshenko succeeded in establishing comprehensive control over the WKKSU and the WRP. Ultimately, "telephone justice", an informal norm of behavior in which the executive interferes in the decisions of the courts, has triumphed over an institutional reorganization of the judiciary. "Telephone justice" includes unsolicited calls where politicians or their representatives urge judges or their superiors to handle a case in a certain way. In September 2017, two well-known comedians mimicked Oleksandr Hranowskyj, Poroshenko's "curator" for the judiciary. They suggested their "handouts" and "suggestions" to two judges who had to negotiate a major political process. Each of the two judges listened carefully, asked questions, and promised to do their best. The comedians might as well have been social scientists doing field research into how "telephone justice" lives and thrives.

One of the changes after the Maidan has been that the role of civil society in judicial reform has increased. As early as April 2014, when the elections for the court chairmen were underway, civil society organizations mobilized to initiate systematic monitoring of the courts. At the time, these civil society associations wanted to ensure that simple judges were free to make their own decisions and that their votes were counted correctly. Other measures aimed at bringing to justice those judges who the activists believed had committed human rights abuses during the Maidan but remained in their posts.

2016 was due to the law About the judiciary and the status of judges Established the Social Council for Integrity (HRD) to counterbalance "self-administration" and to make the judges' integrity review more effective. Twenty members of the council, selected by respected civil society organizations (journalists, lawyers, legal scholars and human rights defenders), have the task of scrutinizing incumbent judges and prospective judges and delivering a negative opinion if a judge or prospect is concerned about lifestyle, Unethical behavior or human rights violations must be shown to lack integrity. Since then, the HRD has screened thousands of judges and candidates and issued hundreds of opinions detailing how certain judges fail to meet integrity criteria. The HRD only has an advisory role; the final decisions about the further judging career are made by the WKKSU and the WRP (which mainly consist of judges elected by judges). Unfortunately, most of the HRD's comments have been ignored. Only around one percent of the judges were dismissed because of the aptitude test that every judge must pass under the 2015 law (http://en.dejure.foundation/library/qualification-assessment-of-judges-summary-of-interim-results ). 44 candidates with a negative assessment by the HRD became Supreme Court judges in the 2017 and 2018 selection procedures (https://en.dejure.foundation/library/establishment-of-the-new-supreme-court-key-lessons). Experts believe that either the judicial administrative bodies should be reformed so that half of the members come from civil society, or the HRD should be given real decision-making powers regarding the integrity of judges (http://en.dejure.foundation/library / civil-society-and-public-authorities-interaction-in-judiciary-selection).

The impact of reform is often measured by the type of judgments judges make. However, after the Maidan - regardless of the level of the judicial system - there have been few "landmark" judgments. Some high-profile cases are pending in court as the anti-corruption authorities (NABU and SAP) have launched some investigations, but the courts have so far delayed them. It would be premature to suggest that the reform has had limited impact in terms of groundbreaking judgments. Nevertheless, the situation has so far been this and not different.

Another indicator for assessing the impact of the reform is the perception of judicial independence. Probably due to ongoing political pressure and a freer press, social trust in the judiciary has sunk below the level of the Yanukovych era, and the average judge feels less independent of politicians than ever. From a survey by Center for Political and Legal Reform 2015 shows that only 9 percent of respondents trust the courts (compared to 40 percent who trust the president and the army and 30 percent who trust the Verkhovna Rada and the government (https://www.pravo.org. ua / en / news /). In 2018, according to a survey by USAID, confidence in parliament and government dropped to 10 percent (https://newjustice.org.ua/en/news/results-ukrainian-survey), while the considerable mistrust of the courts persists (12 percent trust versus 65 percent distrust), according to a survey by Razumkov Center As of February 2020, 75 percent of Ukrainians mistrusted their courts (http://razumkov.org.ua/napriamky/).

A good counterexample is the creation of the High Anti-Corruption Court (WASU) in 2019, in which none of the candidates for whom there was credible evidence of questionable integrity made it onto the final list (http://en.dejure.foundation/ library / formation-of-the-high-anti-corruption-court-short-summary). The court has started its work and delivered the first 15 judgments, which have been welcomed by experts and civil society. The difference between this selection of judges and that of the Supreme Court and the respective aptitude test was that the WASU involved a team of independent international experts (judges and prosecutors from the EU and other Western countries who were sent by international organizations). Despite the time constraints, the Public Council of International Experts (HRME) screened the candidates and effectively sorted out questionable candidates (which it had formal powers to do). This makes the WASU the court with the greatest integrity in Ukraine.

The Zelensky Years

Poroshenko's inability or unwillingness to achieve a breakthrough in the rule of law had helped Zelenskyi to win the election. A greater determination to promote the rule of law had been expected from the political outsider, although there were some concerns about his possible links with oligarchs who have been trying to undermine the rule of law. Unfortunately, Zelenskyi largely repeats the formula of his predecessor: He comes up with a firm rhetoric that he is absolutely determined to establish an independent judiciary. However, this rhetoric is undermined by staffing decisions, loopholes in laws, and the continued reliance on informal norms of political dependence.

In the area of ​​institutional reforms, Zelensky Poroshenko maintained the policy of continual restructuring of the main judicial organs. This is coupled with promises that accountability and transparency will be maximized by involving international experts. However, loopholes in legislation undermined this policy. In October 2019, Parliament approved Zelenskyi's first law in the area of ​​judicial reform, the Law About amendment of some laws of Ukraine on judicial administrative bodies . The bill was a reaction to the civil society initiative "Agenda for Justice", which had called, among other things, to restart the judicial bodies responsible for the failed judicial reform of the Poroshenko years and the increased social demand for more justice. However, like many of the laws passed under Poroshenko, this law had a mixed quality: it did have the potential to increase the effectiveness of judicial reform, especially with regard to the renewal of the judiciary. But it also contained a number of provisions that could make these potentially positive changes ineffective or even make judges more dependent on political power.

A key piece of the legislation was the long-awaited restart of the WKKSU, the institution responsible for the initial selection and the aptitude test of judges, including that of the new Supreme Court. The new law stipulated that the WKKSU should be filled through an open selection process, which should be done by a specially appointed selection committee. Three of the six members of this commission are said to be international experts. The law also created an ethics committee subordinate to the WRP, also with international experts as members. The ethics committee should initiate the dismissal of members of the WRP and the WKKSU in the event of a lack of integrity and act as a disciplinary body for judges of the Supreme Court. With this approach, however, not all problems regarding the WRP are off the table, the selection mechanisms for the WRP remain the same: The "hijacked" judicial self-governing bodies continue to play a dominant role, civil society and international experts are largely left out, in complete contrast to that Promises of the President and his ruling party.

What's even more remarkable about this bill is that it left the WRP intact, contrary to promises made by the president and his ruling party. This discredited judicial body, of which some members were involved in scandals about a lack of integrity and abuse of office, was able to increase its power in the course of the reform. The newly formed WKKSU would have to obtain the approval of the WRP for almost all regulations relating to the evaluation or appointment of judges. The incumbent WRP could block positive decisions by the WKKSU or reduce its role in the selection of judges to a minimum.

In addition, bodies with a significant involvement of international experts, such as the Appeals Committee and the Ethics Committee, are subtly undermined by other sections of the law: Their decisions would be subject to review by the Kyiv District Administrative Court (OASK), which because of its unlawful decisions and its negative Influence on judicial independence is notorious. The judges of the OASK were recently embroiled in another scandal that unearthed undue influence on a number of courts and judges as well as other judges' bodies; they would not hesitate to block the formation of a new, trustworthy WKKSU or sabotage the dismissal of dubious WRP members.

Under the new IMF $ 5.5 billion memorandum, which will take effect in October 2020, Ukraine is committed to removing jurisdiction from the OASK for most of the nationwide cases and effectively reviving the WRP. President Zelenskyi, who continues to lead judicial reform, is hesitant to comply with this obligation. Instead, he introduced Bill No. 3711 into Parliament, which extends the powers of the unreformed WRP and the OASK (http://en.dejure.foundation/library/draft-law-3711-prezident-zelensky-another- imitation-of-judicial-reform). Regardless of the strong opposition from civil society, the draft was submitted to a vote by the responsible parliamentary committee in July in the first reading (http://en.dejure.foundation/tpost/knzvgxg4nx-civil-society-organizations-call-on-the).

Conclusions

Despite the great promises and seemingly favorable conditions, the post-Maidan judicial reforms brought little substantial change. The scope of the reform process is ambitious. As a result, the institutional structure of the judiciary has changed, but there have been no profound and lasting effects on the functional independence of the courts. The judiciary is apparently in a downward spiral, in which judges in leadership positions who were subservient to the previous regime are being reprimanded and replaced by new ones who are now subservient to the current regime. Rather, the reform process reinforced the impression of a politicized and obedient judiciary, both among ordinary judges and among the general public. It is a striking demonstration of how limited the impact of comprehensive institutional reforms can be in the absence of decisive political will and genuine support from the judiciary.

These results suggest that judicial reform should not be viewed simply as a collection of institutional cosmetic repairs, but as a process that develops out of and is profoundly influenced by the political and social context. In the highly competitive and unpredictable political environment of today's Ukraine, the regime's elites have feigned their commitment to transparency and judicial independence while systematically undermining deep and far-reaching reforms before they actually took effect. At the same time, a complacent and intimidated judiciary within the judiciary has shown itself unwilling and unwilling to use this historically unique opportunity to advocate significant changes in the organizational structure and functioning of the courts. The history of judicial reform in Ukraine is riddled with empty rhetoric, missed opportunities and shattered hopes. In view of the interests and experiences of the actors within the system, however, the storyline of this narrative is logically and sadly predictable in itself. The success story of the High Anti-Corruption Court offers a glimmer of hope. Its controversial genesis made it clear that reform measures in the judiciary in Ukraine can be successfully implemented. What is needed is the direct participation of international experts in the selection process for judges and strong civil society control, at least until the judiciary is clean and ready for real self-administration.

Translation from English: Hartmut Schröder

Bibliography:

  • Friesendorf, Cornelius. "Police reform in Ukraine as institutional bricolage." Problems of Post-Communism 66, no. 2, (2019): 109-121.
  • Gherasimov, Cristina and Iryna Solonenko. "Rule of Law Reform after Zelenskyi’s First Year. A Return to Business as Usual in Ukraine." DGAP Analysis No. 4, May 2020. Available at https://dgap.org/en/research/publications/rule-law-reform-after-zelenskyis-first-year.
  • Kuibida Roman, Malyshev Borys, Marusenko Roman, and Taras Shepel. "Establishment of the New Supreme Court: Key Lessons." Center of Policy and Legal Reform and DEJURE Foundation . January 2018. Available at: https://en.dejure.foundation/library/establishment-of-the-new-supreme-court-key-lessons.
  • Popova, Maria and Daniel J. Beers. "No Revolution of Dignity for Ukraine’s Judges: Judicial Reform After the Euromaidan." Democratizatsiya: The Journal of Post-Soviet Democratization 28, no. 1 (2020): 113-142.
  • Popova, Maria. 2014. "Ukraine’s Legal Problems: Why Kiev’s Plans to Purge the Judiciary Will backfire." Foreign Affairs , April 15, 2014.
  • Popova, Maria. "How Can the EU Help Ukraine Build the Rule of Law and Fight Corruption? Romania and Bulgarian as Guideposts." PONARS Eurasia Policy Memo , No. 469, April 2017. Available at: https://www.ponarseurasia.org/memo/how-can-eu-help-ukraine-build-law-fight-corruption.
  • Zhernakov, Mykhailo. "Bill No. 1008: A Step Towards the Reform of the Judiciary in Ukraine or Another Attempt at Its Capture?" 3 DCFTAs Op-ed No 36/2019, November 2019. Available at https://3dcftas.eu/op-eds/bill-1008-a-step-towards-the-reform-of-the-judiciary-in-ukraine-or-another- attempt-at-its-capture.
  • Zhernakov, Mykhailo. "Judicial Reform in Ukraine: Stalled, Damaged and Abandoned." 3 DCFTAs Op-ed No 11/2020, April 2020. Available at: https://3dcftas.eu/op-eds/judicial-reform-in-ukraine-stalled-damaged-and-abandoned.
  • Zhernakov, Mykhailo, and Andriy Khymchuk "Judicial Reform: A Fresh Start Is Needed." DEJURE Foundation . August 2019. Available at: https://en.dejure.foundation/library/judicial-reform-a-fresh-start-is-needed.

The Ukraine analyzes are jointly published by the Research Center for Eastern Europe at the University of Bremen, the German Society for Eastern European Studies, the German Poland Institute, the Leibniz Institute for Agricultural Development in Transition Economies, the Leibniz Institute for East and Southeast European Research and the Center for Eastern European and International Studies (ZOiS) gGmbH. The bpb publishes them as a licensed edition.