Today’s guest post is from Halyna Chyzhyk, a judicial reform expert at the Anticorruption Action Centre (ANTAC) in Kyiv, Ukraine:
Since Ukraine’s so-called Revolution of Dignity in 2013-2014, the country has substantially reformed its laws—both statutory and constitutional—on the judiciary and the status of judges. A new Supreme Court was created from scratch, the composition of Ukraine’s two judicial governance bodies—the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ)—were completely changed, and several new anticorruption measures were enacted. For instance, judges are now required to submit electronic asset declarations, and failure to prove that the assets all derive from legal sources is grounds for dismissing a judge. Moreover, all judges are now obliged to pass an evaluation of their professional competence and integrity.
Despite these reforms, the judiciary remains one of the most corrupt and least trusted institutions in the country. One of the main problems is that the bodies most responsible for judicial appointment, removal, and self-governance—the HQCJ and the HCJ—do not take corruption seriously. In fact, these institutions are actively helping to protect and cover for corrupt judges, in some cases even using their authority to persecuting independent judges who try to expose judicial corruption. Consider, for example, the case of Larysa Holnyk, a judge from Poltava. In 2014, Judge Oleksandr Strukov, the head of the Poltava court, assigned Judge Holnyk a case concerning a potential conflict of interest of the Mayor of Poltava. The Mayor’s representative contacted Judge Holnyk to make an offer to settle the matter “amicably”—the clear implication was that the Mayor was offering some sort of improper inducement in exchange for making the case go away. Judge Holnyk not only refused the offer, but she reported the Mayor and his representative for attempted bribery. Since that time she has been suffering harassment from Judge Strukov, numerous court suits, and even physical attacks. However, the HCJ has refused to investigate Judge Strukov`s possible involvement in the corruption scheme, and has not punished him for persecuting Holnyk. Instead, the HCJ punished Judge Holnyk.
Alas, this sort of behavior is not unusual for the HCJ. Even after the National Anticorruption Bureau of Ukraine (NABU) released wiretaps proving that several judges of the notorious District Administrative Court of Kyiv were involved in major corruption and obstruction of justice schemes, the HCJ refused to suspend those judges. Indeed, since NABU’s establishment in 2015, it has caught numerous judges taking bribes, but none of these judges have been removed, let alone convicted. The corrupt judges’ judicial peers help them avoid legal responsibility, while the HCJ ignores or covers up their wrongdoing. Indeed, there is evidence that some HCJ members themselves may be engaged into corruption-related practices.
The fundamental problem with Ukraine’s well-intentioned attempts at judicial reform over 2014-2019 was that the main responsibility for cleaning up the Ukrainian judiciary continued to rest with Ukrainian judges. But corruption is so deeply rooted in the Ukrainian judicial system that this is impossible. Much as Turkeys will never vote for Christmas, dependent and corrupt judges will never be support cleaning up the courts. This problem is by no means unique to Ukraine. In the past year, though, Ukraine has developed a bold and unprecedented solution to the problem: the engagement of international experts and civil society representatives in the reform. My organization, the Anti-Corruption Action Center (ANTAC) recently published a brief entitled How To Achieve Successful Judicial Reform in Transition Democracies: Ukraine`s Recipe, which describes the Ukrainian experience with engaging civil society representatives and international experts in the selection of judges, and explains how Ukraine`s approach may also help reform judiciaries in other transition countries, such as Armenia, Georgia, and Moldova.
With regards to civil society, a 2016 law created the Public Integrity Council (PIC), a civic body tasked with assessing judges` integrity. The PIC consists of 20 experts representing reputable Ukrainian NGOs, with the PIC members elected by NGOs with a history of cooperation under international technical assistance projects. This arrangement removes political influence from the process of selecting PIC members. During the past three years members of the PIC assessed thousands of judges and judicial candidates and exposed numerous cases of dishonest judicial behavior. However, the PIC’s negative opinions on judges or judicial candidates do not bind the HQCJ or HCJ, and in practice these bodies all too often ignore the PIC’s findings regarding dubious candidates. For this reason, the 2018 law creating the new High Anti-Corruption Court (HACC) provided for the creation of a new body, the Public Council of International Experts (PCIE) to help ensure that members of the new Court were persons of integrity and the necessary practical skills, and gave this body veto power over HACC nominees. The members of the PCIE are foreign experts nominated by international organizations. This model was a great success. The PCIE vetted 85% of the questionable candidates competing for a position on the HACC—the first time anything like this has happened in Ukraine. The HACC started operating in September 2019, and while the court has not yet rendered decisions in any high-profile corruption cases, the evidence indicates that this court has set a new standard for the quality of Ukrainian justice.
Thus, civil society representatives and international experts, unlike sitting domestic judges who are part of the corrupt system, can act an effective filter for current and future judicial governance members, and in this way can provide a fast and effective technique for tackling corruption and introducing tangible changes into judiciary.
Other countries in the region, including Moldova, Georgia and Armenia, can learn from Ukraine’s experience. These other countries, like Ukraine, have attempted to reform their judiciaries to meet European standards, but these reforms have been ineffective because they have left sitting judges with too much control, and failed to introduce effective measures to ensure judicial accountability. As was true in Ukraine, in these countries that judicial councils have remained in the control of sitting domestic judges, who are overly reluctant to impose discipline on their colleagues to disciplinary liability. In such countries, the most promising avenue for genuine reform is to engage international experts and civil society representatives help vet judges and oversee judicial reforms and judicial management more broadly. Such a reform will help counter illegitimate self-protection and change negative public perception of judicial corporatism.