After a failed reform of its prosecution service and a flawed reform of the police, Ukraine is set to revamp the keystone of law enforcement – the judiciary.
President Petro Poroshenko signed constitutional changes on the judicial reform in June and an adjacent law in July. The legislation will take effect in October.
The reform laws are supposed to decrease political influence on Ukraine’s 7,000 judges and expel corrupt ones.
On paper, the legislative changes are a step forward. But since informal practices often matter more than laws, the reform could easily be obstructed or do more harm than good, experts say.
“This is an opportunity, but there’s nothing specific there,” Mykhailo Zhernakov, a court expert at the Reanimation Package of Reforms think tank, told the Kyiv Post. “There’s not a single guarantee that (the legislation) will lead to something good… A lot of scope for manipulation remains.”
Poroshenko’s spokesman Sviatoslav Tsegolko did not reply to requests for comment.
Presidential influence
The authorities have touted the new laws as decreasing political influence on the courts.
Currently judges are appointed by the Verkhovna Rada and the president, while under the new laws, all judges will be selected by the High Council of Justice.
Parliament won’t be involved, while the president will keep the “ceremonial” right to appoint judges. However, critics argue that the president’s influence on courts will not be limited and may even increase.
First, “despite the fact that the appointment of judges is allegedly ceremonial, it may be interpreted in our traditions as the necessity of negotiating all judges’ candidacies with the Presidential Administration,” Markiyan Halabala, ex-head of a commission for firing judges who issued unlawful rulings, told the Kyiv Post.
Secondly, the High Council of Justice includes members selected by the president or people appointed by the president, like the prosecutor general.
Finally, the judges of the Supreme Court
appointed by ex-President Viktor Yanukovych will have to leave, and the
new ones could include proteges of Poroshenko.
“The whole system is dependent on
the Presidential Administration,” Zhernakov said. “The administration is
not only doing nothing to remove this dependence, but is also inserting
opportunities into this law to make the system even more dependent.”
Anton Chernushenko, ex-chairman of the Kyiv Court of Appeals, said last August that a miscarriage of justice case against him was revenge for not fulfilling orders from Poroshenko and his deputy chief of staff Oleksiy Filatov to issue certain rulings promoting the president’s interests.
Filatov has dismissed the accusations as “nonsense.”
Another
judge who allegedly gets orders from Poroshenko and his allies is
Mykola Chaus at Kyiv’s Dniprovsky District Court. Chaus is seen as
close to Oleksandr Hranovsky, a lawmaker from the Poroshenko Bloc.
Hranovsky has denied interfering in the judicial system.
A
commission entrusted with investigating judges who issued unlawful
rulings against EuroMaidan protesters has ruled that Chaus should be
fired for such rulings. But the High Council of Justice has refused
to dismiss the judge, which Roman Maselko, a lawyer who monitors the judicial reform, sees as a payback for Chaus’
political loyalty.
“The risk of presidential influence is increasing,” Tetiana Kozachenko, head of the Justice Ministry’s lustration department, said by phone. “Though formally this risk is supposedly being neutralized, in practice administrative and political influence on the courts remains very strong.”
Repressive mechanisms
The High Council of Justice and High Qualification Commission, which will carry out the reform, have become more transparent and incorporated some reformers since the EuroMaidan Revolution, which ousted Yanukovych in 2014. But both are seen as dependent on the president and the corrupt court system.
According to the reform legislation, the High Council of Justice’s composition will be changed by 2019 to increase its independence, with members delegated by a congress of judges expected to dominate the body.
Despite the changes, the council will face the risk of obstruction by both the president and the unreformed judiciary both before and after 2019, analysts say.
“The High Qualification Commission is not trusted by society and is dependent on the Presidential Administration,” Zhernakov said. “And I don’t believe the (High Council of Justice) is able to fulfill its functions.”
The council only has three reform-minded members out of 20, he added.
“The High Qualification Commission and the High Council of Justice were previously a repressive mechanism that appointed its loyalists and punished those who stood in their way,” Maselko said. “There is a high risk they will remain this way.”
Oksana Lysenko, head of the High Council of Justice’s public relations department, told the Kyiv Post she was not authorized to give official comments.
Maidan judges
The High Council of Justice has been criticized for exempting some judges from dismissal in exchange for their loyalty. The council argued, however, that there is no evidence of these judges’ violations of the law.
The council has approved the firing of 29 judges who issued unlawful rulings during the EuroMaidan Revolution out of 46 judges nominated for dismissal. Poroshenko has fired eight of them, but parliament, which is dominated by his party, has been dragging its feet for months on dismissing the rest of the 29 judges.
Judges’ behavior during the revolution shows that they “are afraid of the government, have no rights and are dependent,” Maselko said.
“They realized there would be a certain penalty for not fulfilling an order (from the executive branch and court chairmen),” he said. “But they were absolutely sure that they had impunity for violating the law.”
Moreover, the High Council of Justice has failed to identify the top organizers of unlawful practices during the EuroMaidan Revolution, who were mostly court chairmen, Maselko said.
Yanukovych’s chairmen
Yanukovych-era court chairmen are expected to hold sway for a long time, ensuring that no fundamental changes take place.
Technically they were banned from being re-elected for a third time, but a bizarre legal interpretation used by Ukrainian courts enables them to become chairmen for third, fourth and even fifth times, analysts say.
The High Council of Justice and High Qualification Commission have also failed to protect judges who complained about pressure by court chairmen and top officials. These include Serhiy Bondarenko, Larysa Holnik and Tamara Novikova.
“Judges who go against the system are not supported by the system, and are destroyed by it,” Maselko said. “Bodies that should support them – the Council of Judges, the High Qualification Commission and the High Council of Justice – are doing their best to oust them from the system.”
Ousting corrupt judges
The legislation also stipulates holding competitions for judges of the Supreme Court, and for judges appointed for five-years terms. Zhernakov said, however, that it was not clear whether the competitions would be open and transparent.
He also argued that Poroshenko was reportedly trying to pack the Supreme Court with his protégés, with alleged lists of future appointees circulating in the media.
Civic activists have also proposed holding competitions for about 800 5-year judges whose term expired before the reform laws came into effect but the authorities ignored that opportunity for renewing the judicial system, Maselko said. The appointment of these judges, including some with luxury property and questionable reputation, for life will be considered by the Verkhovna Rada or the High Council of Justice later this year, and they will not even be required to pass vetting for that.
Both the 2015 law on the right to a fair trial and the 2016 reform laws also envisage vetting incumbent judges.
But the quality of vetting carried out by the High Qualification Commission earlier this year has been questioned, since some controversial judges with unexplained wealth and those who issued rulings against EuroMaidan Revolution protesters have been cleared to keep working.
The High Qualification Commission only considers judges’ professional qualities and does not take into account corruption criteria, according to Halabala.
In April through June, the Qualification Commission was scheduled to vet 281 judges of appellate courts in Kyiv and Kyiv Oblast. Of these, 57 percent passed vetting, 16 percent will be vetted after additional checks, 3 percent failed to pass, 16 percent resigned instead of being vetted, and 8 percent did not show up for vetting.
Weak public oversight
The reform laws envisage creating the Civic Honesty Council for public monitoring. However, the council will have no legal standing and the High Council of Justice can ignore its advice.
Civic activists will have even less control over judicial reform than over prosecutorial reform, which failed last year, and police reform, which is being derailed now due to a lack of civil society oversight, Maselko said.
“The only genuine tool of control is civil society,” he added. “It often becomes the only protection for honest judges.”
