Will Judicial Reform Survive?

— Hello, your Honor? I am calling from the High Council of Justice. You are under disciplinary investigation for taking a huge bribe. The hearing in your case will be conducted tomorrow at 9 am. The Police have enough evidence to arrest you, so please be on time.

— Hello, that is quite some news. What a shame! You know, I planned a business trip to Vienna tomorrow to settle certain personal accounting issues. But if you are saying you have enough evidence, then I won’t go anywhere for sure. Looking forward to seeing you in the morning.

— Great, thanks, we are looking forward to seeing you too.

— The pleasure is all mine.

This is the way the people of the Poroshenko Administration imagine a dialog of some typical Judge Chaus with the High Council of Justice (HCJ) — an old-new judicial agency which is stipulated by the Constitution and which is responsible for authorizing the detention and arrest of Ukrainian judges.

The draft law on the High Council of Justice, which was recently introduced to the Parliament by the President, includes among other things the obligation to notify a judge when the disciplinary proceedings against her or him are initiated.

President Poroshenko claims that a ‘deep cleansing and upgrade’ of the judiciary is going to be launched in September 2016. We doubt that the new Law on the High Council of Justice will really help to achieve that and our reasoning is explained below.

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Months have passed since the day the Rada voted to support the changes to the Constitution, which the President introduced as a part of judicial reform. This legislation gives many hopes: from removing the mechanisms of political influence on the courts and ensuring better judicial independence to rejuvenation of the judiciary and limitation of the judicial immunity.

The updated Constitution stipulates, among other things, a new constitutional body — the High Council of Justice, which will be in charge of appointing, dismissing and launching disciplinary proceedings against judges and protecting them from illegal interference with their professional activities.

The logic of the reform is that the newly created institution must build the new system in a transparent and professional manner by appointing the best professionals, promoting the best of them to the higher courts, punishing the guilty ones and protecting the aggrieved.

Yet, as it often happens, the logic is telling the one thing while the legislation is doing quite the opposite. To be brief: if the President’s draft law gets passed, we are risking not only to get no real changes within the foreseeable future, but to preserve the current rotten status quo for quite a long time.

No Sight of Reform of the HCJ Itself

According to the first version of the draft law, a minimum of 10 years of working as a judge was required to be elected the member of the HCJ. This provision was later amended with the reference to the transitional provisions of the law that are yet to be developed.

This means the chances that the HCJ will have no new judges elected according to the contest procedure after the reform is introduced is still very high. Now and in 2019, when the HCJ must be completely re-elected, the majority in it may still be formed by the ‘old guard’ of the Ukrainian judiciary.

And only 1% of the population trusts the ‘old guard’ — this is slightly less than popular trust of the Russian media in Ukraine. So was it the original plan?

Too Many Backdoors for Avoiding the Responsibility

The problem is not only the advance notice. Unlike the regulation guiding the work of the HCJ in its current configuration, the draft law substantially limits the number of disciplinary procedures that might result in a guilty judge being fired.

In particular, the HCJ will be authorized to refuse opening disciplinary proceedings against judges, whose decisions were not reversed in the next stage of the proceedings.

In addition, the draft law contains provisions that make the proceedings at the HCJ less transparent compared even to the existing procedure. Therefore, even if HCJ will be able to conduct a perfect disciplinary review, which is hard to believe, the public will never trust the outcomes as there will be no legitimate instrument of monitoring the review procedure.

"Not only must justice be done, it should manifestly and undoubtedly be seen to be done." It is a pity, that this saying by a famous English judge Lord Gordon Hewart, which is repeatedly used by the European Court of Human Rights, was not taken into account by the authors of the Ukrainian Law on the HCJ…

The High Council of the Selective Justice

Probably the authors of the draft law and even the President himself are planning to keep permanently convincing society that the HCJ is acting in good faith, and that the lack of transparency which enables illegal influence on proceedings is just a coincidence that does not affect anything.

Yet, if the President was more coherent in sticking to his own political platform — he might have had more support from his people. Yet, unfortunately, the draft law that Poroshenko initiated and which already came into force as the law on The Judicial System and the Status of Judges, allows the heads of the courts of the Yanukovych era (the same people that were used for the ‘managing’ the courts) to keep their positions for another 7 years.

It is even more difficult to believe in the ‘deep cleansing and upgrade’ of the judicial system, taking into account  the provision of the Draft law on the HCJ, granting priority in being appointed to those judges, who had a good grade at the times of Yanukovych. The draft law allows appointing those judges without qualification assessment and rating.

Let me remind you that this assessment was conducted by the same High Judicial Qualifications Commission, which had its entire team fired in 2014 by the Law on Restoring the People’s Trust to the Ukrainian Judiciary after an intensive debate and controversy. So why nostalgia for the Yanukovych times?

But when we take the recent events into account — it turns out there is no coincidence. All of a sudden the President appointed 28 judges that were selected in the times of Yanukovych (there were relatives of the acting judges in this list by the way).

Then came the Rada’s extraordinary meeting to  fire the judges who breached their oath and were prosecuting the peaceful protesters of Maidan. But still  the pro-Presidential majority in the Rada refused to send more than 700 judges, appointed in the times of Yanukovych, for the new attestation based on a new selection procedure. Our sources confirm the role of one of the MPs from Poroshenko Bloc, whom the media already nicknamed the new ‘curator’ of the justice.

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As always: there is bad news and good news. The bad news is that there are too many signals confirming the sabotage of the judicial reform by the President and his party.

Combined with the failed ‘reform of the prosecutors’, the revanche of the ‘old guard’ in the case of the ‘diamond prosecutors’, the war of the Office of the Prosecutor General and SBU against the NABU, the unexplainable loyalty towards to ‘Yanukovych judges’ and the failed launch of the digital income filings for the state officials — the failure of the judicial reform is yet another demonstration of the true and (not some imaginary) vision of reforms in law enforcement and the judicial system by the President and his team.

The better news is that Ukraine still has enough healthy influencers in the Rada and in civic society, and these people are ready not only to fight for changes, but also to assist in their successful implementation.

The Reanimation Package of Reforms (RPR) already urged the President of Ukraine to implement the judicial reform in accordance with the publicly declared purposes, ensure the independence and integrity of judges, renew the judiciary and incorporate the comments and suggestions of the RPR into the draft law before it is brought before the Parliament.

Some of our comments were taken into account in the final draft. We hope that President and his Administration will have courage to offer the updated draft law to the Rada and it should be readily accepted by the Rada.

We would like to remind that the President is not only the guarantor of the rights and freedoms granted by the Constitution, but also the person responsible for judicial reform in Ukraine. The Council of Judicial Reform, which was in charge of the draft, as well as the Constitutional Commission and National Council of the Reforms are all the advisory agencies of the President of Ukraine. It was Poroshenko himself, who created them and appointed their teams by his decrees.

Much more time should have been invested into the discussing and voting of the draft law in the first and the second readings. That means investing more time in detailed discussion and incorporation of the changes and suggestions aimed at implementing the judicial reform, not destroying it. Therefore, currently the judicial reform is held hostage by President Poroshenko and his Administration.

The New Supreme Court?

The issue of appointing the judges to the new Supreme Court is still unclear while it is a cornerstone of the judicial reform. The Law of June 2, 2016, which stipulates the creation of this court fails to describe the selection process of the new judges to the newly created judicial institution.

The High Judicial Qualifications Commission, which is in charge of the selection of the judges according to the new law, is also slow to publish the details of the selection process, which is due to start on the mid-October 2016. This lack of transparency leaves enough space for manipulations, including various options of influencing the selection procedure. The same lack also creates the threat of creating a political dependence of the new Supreme Court.

But even these issues fade in comparison to the attempt of the still existing Supreme Court of Ukraine (SCU) to dismantle the whole process. Recently 21 judges of the SCU challenged the bill in the Constitutional Court of Ukraine. The experts and the members of the Parliament already described that as an attempt of the old system to sabotage the reform.

Last But Not Least

There is even less clarity on creating the Specialized Anti-corruption Court — the last element of the truly upgraded anti-corruption system in Ukraine. Impressive work of the NABU and of the Specialized Anticorruption Prosecutor is a vivid confirmation of the idea that creating independent specialized institutions ‘from scratch’ with the direct participation of the international community in picking the teams of these institutions is an effective way of fighting grand corruption in Ukraine.

And such an approach is the best way to create the Specialized Anti-corruption Court, which should be launched as soon as possible to reinforce the Ukrainian anti-corruption frontline.

To implement this approach the Law on the Specialized Anti-corruption Court should be passed. It should stipulate the qualification requirements and the selection procedure for the judges of this court and this procedure should be drafted in a manner which excludes the possibilities for any political influence and provides sufficient security safeguards for the judges of the court.

Meanwhile, Ukrainian political elites are not interested in a truly independent Specialized Anti-corruption court. Therefore, this law has high chances of becoming one of the hottest topics of the Autumn—Winter 2016 political season.

Mykhailo Zhernakov, Leading Expert of the group on the Judiciary Reform, the Reanimation Package of Reforms, exclusively for Ukrayinska Pravda