Judicial reform in Ukraine: what has changed for the last three years?
03.03.2020
A judiciary capable of fostering the rule of law has not been formed since Ukraine regained independence in 1991. The courts still face the problem of corruption, the dependence of judges on politicians and oligarchs.
A judiciary capable of fostering the rule of law has not been formed since Ukraine regained independence in 1991. The courts still face the problem of corruption, the dependence of judges on politicians and oligarchs. On the eve of the Revolution of Dignity, the level of trust in the courts in Ukraine stood at 7% and was one of the lowest in the world and the lowest in Europe. Since the fall of communism, judges did not undergo any kind of lustration, which gave the oligarchs and politicians an opportunity to capture the judiciary and use it for their benefit.

In 2016 the judicial reform which began after the Revolution of Dignity has been the most substantial in the history of independent Ukraine. Constitutional amendments were introduced, new laws were adopted, several new institutions were created. The reform was primarily directed at making the judiciary more independent, trustworthy and publicly accountable.

Unfortunately, these reform measures cannot be considered successful. The newly established Supreme Court was mostly composed of the old judges, with 44 judges (23%) clearly lacking integrity, and the attestation of the rest of the judiciary failed. This is primarily due to the reluctance of political elites (mainly the Administration of the fifth President of Ukraine Petro Poroshenko) to take decisive steps that would diminish their control over the judiciary. The resistance to reform of the judiciary itself also played a key role. The High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ) kept most of the corrupt judges in their positions.

Consequently, trust in the judiciary following the reforms remained at the same level as it was before the Revolution of Dignity.

A good counterexample was the formation of the High Anti-Corruption Court (HACC). The idea of creating the HACC was suggested by representatives of civil society. Independent international experts (the Public Council of International Experts - PCIE) supported by the international partners were engaged in the process and had a power to veto the appointment of the dubious candidates. That made the competition a lot more objective and fair. As a result, an independent HACC was formed and started functioning in September 2019.

After a major political change in 2019, a window of opportunities was open to give the judicial reform a new momentum and to scale the success story of the HACC. During the elections, civil society representatives persuaded the candidates to support "The Agenda for Justice" initiative, that called, among other things, for the relaunch of the judicial governance bodies responsible for the failure of the judicial reform of the last 5 years.

In November 2019 the bill #1008 was voted that provided for the renewal of the judicial governance bodies with the participation of the experts delegated by the international partners.

However, the law was not without severe flaws. It gave the dubious judges of the HCJ the power to block the renewal of the judicial governance bodies. The representatives of the old "judicial corporation" (namely, the High Council of Justice) effectively blocked the participation of the international experts in this process and stalled the reform process.

Currently, we are expecting the President to introduce the law aimed at eliminating the harmful influence of the HCJ and unblock the participation of the international experts in cleansing the judicial governance bodies. At the same time, amendments to the law should be introduced that change the selection process for the HCJ. The amendments should enable independent international experts to whitelist the candidates limiting the old "judicial corporation's" influence over this process.
DJR
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