The "European standards" in the judiciary are mostly referred to in Ukraine in the context of judicial governance. Many argue that the approach "judges selected by their peers" is the only possible option for Ukraine and the introduction of this approach itself would allow to establish the independent judiciary entrusted by the society.
The myths on the absence of the alternatives to this approach go with its roots to the decision of the ECHR in the case of "Oleksandr Volkov v. Ukraine
". Motivating the decision, the Court stated that the "the composition of the High Council of Justice of Ukraine still does not correspond to European standards because out of 20 members [of the HCJ] only three are judges elected by their peers".
Even though this position was only one of a number of arguments of the Court, it was rolled-out as evidence of the absence of the alternatives to this approach in Ukraine.
The model of composing the judicial governance bodies where the majority of members are judges, selected by judges became popular at the time of judicial transition in the countries of Central and Eastern Europe. Then the majority of them introduced the standard of "judges elected by judges" for their judicial governance bodies.
The logic of the supporters of this approach was pretty simple – if courts are isolated from the political influence and the institutions independent, the judiciary will also gain independence. Eventually, the judiciary in Western Europe works within this model.
The initiators of changes did not consider that the judiciary in Western Europe countries has been developed for decades. The majority of citizens in these countries trust
the judiciary – more than 70 per cent of the population in Germany and up to 88 per cent in Denmark. In these countries, political influence on the judiciary is minimised, and the integrity of judges is not doubted.
In these countries the rule "judges selected by their peers" makes sense as here judges take care of cleansing their community by themselves as well as ensuring the integrity of the whole judicial crops.
At the same time, the President or the Parliament cannot significantly impact the judicial governance and pressure judges or "drag" the loyal people to the offices. Judges, respectively, may hear cases against high officials or the interests of the latter and do not be afraid to lose the job for this.
A completely different situation was and is observed in the transitional democracies, in particular, countries of Central and Eastern Europe. The research
proves that in many of these countries "judicial governance bodies started to turn into criminal-like structures where judges strive for personal benefit and use the new institutional structure for the oppression of the government".
Sadly, but such a perilous standard was introduced in Ukraine in 2016. Now 10 out of 21 members of the HCJ are judges, selected by the Congress of Judges, and one more seat is given to the President of the Supreme Court (SC) by virtue of their position. Before 2019, judges also had 2/3ds of seats in the High Qualification Commission of Judges (HQCJ), a body that conducts the qualification assessment of old and selecting new judges.
Introduction of the European standards did not bring the desired changes – the HCJ drowned
in scandals, the HQCJ dismissed less than 1 per cent
of judges upon the results of the qualification assessment and the political government still has an excessive influence on the judiciary. As a result, as of 2020, more than 75 per cent
of citizens do not trust judges.
The same fate befell the Moldova and Georgia – two countries with a similar background, which introduced the standard "judges selected by their peers" during the formation of the judicial governance bodies. Civil society in these countries reports on the high level of corruption and political dependency of the judiciary from the political government.
The Venice Commission also confirmed these facts in its opinions on the judicial reform in Albania and Moldova. In particular, the Opinion
CDL-REF(2019)031-e on the judicial reform in Moldova, the Commission and the Directorate of Human Rights and Rule of Law of the Council of Europe underlined that in some post-communist countries, "too high standards on judicial independence may result in a paradox"
as the guarantees for independence are provided to judges who are neither independent nor trustworthy.
The Commission recommended to Moldova to establish a temporary mechanism for cleansing the judiciary of the untrustworthy members. It will restart the whole judicial corps and only after that – introduce the high standards of judicial independence.