Renewal of the judiciary in Ukraine
Corruption was one of the catalysts for Ukraine’s Revolution of Dignity (so-called Euromaidan), which led to the fall of the Government, the flight of the President and most of his Cabinet, in February 2014. According to results of a public poll, Ukrainian courts were the least trusted public institutions: only 6 % of respondents had trust in them. It is one of the lowest trust levels both in Europe and worldwide. Seeing this, the Euromaidan protesters listed judiciary reform at the top of their agenda. Corruption and mutual cover-ups among judges in the courts are the key obstacles to the reform of the judicial system of Ukraine. Furthermore, the existence of corruption in the courts jeopardizes reforms in other areas and creates atmosphere of impunity in public institutions.
Since then, a number of key reforms have been launched on the anticorruption front through the so-called Anticorruption Package. In 2014, the Ukrainian Parliament passed two laws in order to begin the lustration process and tackle the problem of unsatisfactory confidence in the rule of law in Ukraine. However, the process of cleansing the courts of corruption is considered to have failed, seeing as no judge was dismissed and majority of 7600 judges employed in Ukraine remained seated. Quasi-judicial reform, initiated by Parliament in February 2015, started the process of assessing the qualifications of judges and cleansing the judicial system, which also proved to be ineffective. This was largely due to the high resistance of unprofessional judges with who were involved in corruption schemes. In addition, the process of evaluating the High Qualification Commission of Judges of Ukraine was not transparent enough: the judicial commission was acting secretly, judges’ dossiers were not available to public, and interviews with judges were held behind closed doors. Recent research and opinion polls show there is still a popular sense that corruption is pervasive and that grand corruption remains a most pressing challenge. Public mistrust is also troublesome with respect to the judiciary and politicians.
In June 2016, the Ukrainian Parliament passed a new law “On the Judiciary and the Status of Judges”., which is considered to be a reasonable step forward in the process of strengthening the independence of judges from political and commercial influence. The law contributes to enhancing the transparency and efficiency of Ukrainian court proceedings and, if properly implemented, will sufficiently reduce corruption in Ukraine’s court system by making judges more accountable for their decisions and behaviour.
In order to tackle the problem of confidence in the Ukrainian judiciary and lack of effective integrity checks, the law established the Public Integrity Council (the PIC). According to the Law Public Integrity Council assists the High Qualification Commission of Judges of Ukraine (the HQCJ) in determining the compliance of a judge (a judicial candidate) with the criteria of professional ethics and integrity. It is an independent civic body comprised 100% of the members of the civil society. Members of the Public Integrity Council were selected on a public meeting by the representatives of the trustworthy Ukrainian NGOs in November, 2016. For the first time in history, Ukraine decided to outsource this part of the process to a civic body. Currently the PIC consists of 17 members. Among them there are 15 lawyers and 2 journalists, 6 lawyers are attorneys and 7 members have scientific degrees. According to the Law the PIC collects, verifies, and analyses the information on a judge (a judicial candidate) and with justifiable reasons, provides the HQCJ with the conclusion that a judge (a judicial candidate) does not meet professional ethics and integrity criteria, which shall be included in the judicial dossier. The key document that is used by the PIC to assess the professional ethics and integrity of a judge is the Bangalore Principles of Judicial Conduct, endorsed by the UN Economic and Social Council resolution of July 2006. However, the PIC`s role in assessment of a candidate’s integrity is solely consultative, while the final decision on judicial candidacies is made by the High Qualification Commission of Judges. At the same time, the Commission may overrule the negative opinion of the PIC only by two-thirds, i.e. 11 votes out of 16.
On November, 2016 the competition for the Supreme Court has started in Ukraine. During the competition, the PIC collected and analysed information on 381 candidates. As a result, the PIC made opinions upon 134 candidates of non-compliance with the criteria of integrity and professional ethics. Over the past ten months the PIC has substantially influenced the judicial perception of its accountability to the society; it already managed to prevent dozens of candidates with explicitly tainted reputation from being shortlisted for the Supreme Court positions. But the PIC cannot guarantee that no bad apples will get through. The HQCJ can overrule a PIC assessment with a two-third 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.
Once again, Ukraine’s reforms are being shaped by Ukraine’s reform-minded civil society and the conservative government. While the authorities make the final decisions, and the conservative direction is more likely to prevail, the government has learned over the past three years that it is a peril to underestimate Ukraine’s civil society.
In view of the above, establishment of the PIC should be considered as one of the most progressive steps of the Ukrainian judicial reform and should be protected rather than constantly challenged by allegations that are not based on substantial grounds, for the sake of a better outcome of the judicial renewal in Ukraine. Moreover, given the progress in the reform with regard to the accountability of judges, which the PIC has made possible, this could be an example for other transitional democracies struggling for the renewal of the judiciary.