Ukraine May Fix Its Judicial System, Finally
Ukraine’s future rests on whether its judicial reforms will bring about the rule of law for the first time in its history, or whether political influence continues to contaminate its system.
By next month, a new Supreme Court will be installed as part of a comprehensive and unique process that began in 2015. The top-down reforms include replacement of the entire Supreme Court and elimination of a corrupt lower level court with 330 judges.
The reform also created a unique template for evaluating and selecting the new Supreme Court which will be applied to the rest of the country’s judiciary gradually by the High Qualification Commission of Judges. For months, the Commission tested and interviewed hundreds of candidates and submitted a list of 120 Supreme Court candidates to the High Council of Justice. By early October, the Council will pick at least sixty-five nominees or more for submission to the president for final approval.
The process, while controversial, stands in stark contrast with past practices, noted Sergii Koziakov, chairman of the High Qualification Commission.
“[Deposed President Viktor] Yanukovych reduced Supreme Court powers,” said Koziakov. “You qualified for the position by paying a bribe of $100,000 or $10,000 to be an assistant. It was a mafia system. You invested for taking up a job in the court. Then you took bribes to get profit.”
“Some of the [Supreme Court] judges did nothing except make money for themselves and their friends and got great free apartments from the state,” he added. “We found one judge who made $500 a month salary and owned six new expensive cars, his wife owned eight, and his mother-in-law, on a small pension, owned twelve. We found many of these.”
Ukraine undertook two important advances in this first stage: the net was cast wide for candidates beyond the existing judicial network, and lawyers or academics were allowed to apply.
“Of the 120 winners, 46 percent were female; 96 percent were new to the Supreme Court; more than 50 percent were new from [appellate] courts; and 24 percent were advocates or academics. The youngest, with ten years’ experience, was thirty-three,” said Koziakov.
But the most unique aspect of the process was that each individual was examined by the Public Integrity Commission which then issued a report of acceptance or rejection. This Commission was comprised of twenty journalists, scholars, lawyers, and representatives from nongovernmental organizations such as Transparency International.
Any rejection, however, could be overruled by a two-thirds vote if the High Qualification Commission’s sixteen members felt there was insufficient evidence to disqualify the candidate.
But a nagging concern has been that thirty of the 120 candidates selected by the High Qualification Commission received negative reports from the Public Integrity Commission that were overruled.
Activist lawyer Anastasia Krasnosilska, with the Anti-Corruption Action Center, wrote these thirty were tainted because they were judges who had been involved in political persecutions, violations of human rights, or whose assets were oversized given their official incomes.
In an article, Public Integrity Commission member and former judge Mykhailo Zhernakov addressed his concerns regarding this issue.
“The Public Integrity Commission (PIC) cannot guarantee that no bad apples will get through,” he told a news agency. “The High Qualification Commission can overrule an Integrity assessment with a two-thirds majority, and while this may sound like a lot, it is not. Voting is not public, and if it remains that way, practically any PIC decision may be arbitrarily overruled.”
He also urged that—at this initial stage of judicial reform—new judges should be appointed gradually.
“It’s critical for the international community to emphasize that Ukraine should not approve all 120 judges now,” he added. “This pressure will allow civil society to push for changes to the selection procedure before a second round of evaluations begins.”
Koziakov pointed out that the High Council of Justice, the final arbiter before the president signs off, may not agree with many of his Commission’s 120 candidates. They only need to pick sixty-five.
So, who are the members of the High Council of Justice?
The Council is comprised of twenty-one members, nineteen of whom are working now. Ten members were elected by the Congress of Judges of Ukraine (existing or retired), two were presidential appointees, two were elected by the Verkhovna Rada, two were elected by the Congress of Advocates of Ukraine, two were elected by the Ukrainian National Conference of Prosecutors, and two were elected by the Congress of representatives of higher education and research institutions in the area of law. The president of the acting Supreme Court is a member ex officio.
Some are accused of conflicts by critics.
“Three of the twenty-one on the Council took part in the competition,” said Koziakov. “And they all won, but one of them (the president of the acting Supreme Court) stopped participation. The other two, elected by the Congresses of Advocates and Judges, continued to take part, but will not vote.”
The concern now is that if the 120 nominees are all chosen, including the thirty, then one-quarter of the highest court is tainted. Worse would be if only sixty-five are chosen, including the thirty rejected by the Public Integrity Commission. That would mean that nearly half of the Supreme Court is problematic and will send a signal that it is business as usual.
Clearly, and in the interest of building credibility at home and abroad, the best decision would be to set aside the thirty altogether.
This would build on the reality that the reform process so far represents a good start. Nepotism and incompetence has been replaced by testing and evaluations and disclosure requirements that have squeezed out 1,600 judges at all levels so far.
And the creation of the Public Integrity Commission has established the principle of judicial accountability to society and prevented dozens of questionable Supreme Court candidates from being shortlisted.
What happens next, however, is key. IMF pressure to create a tough anticorruption court would provide comfort to everyone. Instead, Ukraine proposes an antitrust chamber within the system which activists say won’t work.
But the jury’s out and the approach is gradualist and politicized somewhat. Whatever the debate in future, the creation of a new, improved, completely untainted, and well paid Supreme Court will represent a dramatic start toward creating a Ukraine where justice is no longer for sale.
First published Atlantic Council September 28, 2017