According to experts and business representatives, the unreformed judiciary is the main obstacle to Ukraine's economic growth. Mykhailo Zhernakov, Chair of the Board of the DEJURE Foundation, together with international experts, looked for ways out of the current situation during an online discussion organized by the Atlantic Council.
According to Andy Hunder, the president of the American Chamber of Commerce in Ukraine,74% of foreign companies in Ukraine consider the unreformed judiciary as the main obstacle for the further economic growth of Ukraine due to the lack of trust to Ukrainian courts. In addition, this often prevents investors from pouring money into Ukraine's economy. As an alternative solution, businesses tend to solve the argument with the help of international courts.
Mykhailo Zhernakov stressed that international courts might be a good alternative way of solving arguments, however, it is far better to raise the trust of citizens and international businesses to Ukrainian judiciary. It can be done by incorporating best practices and success stories of other countries in judicial reform. The successful example of the latter is the establishment of the High Anticorruption Court (HACC) with the active involvement of international experts, who brought the fresh blood into legal circles of Ukraine. Unfortunately, the upcoming attempt of President Zelenskiy to reform the judiciary by introducing another bill to the Parliament seems not to provide effective measures to reform the judicial governance bodies (in particular, the HCJ) by attracting international experts.
Dangerous signals are also coming from the idea of giving the High Council of Justice (HCJ) the control over the work of the High Qualification Commission of Judges (HQCJ). Previous experience shows that this may disrupt the efforts and block the whole reform process. Mykhailo also emphasizes on the importance of 'borrowing' integrity and best practices from the developed countries by involving their legal professionals in judicial selection rather than copy-pasting the models for judicial governance. The introduction of judicial 'self-governance' by letting the judges select the majority of their peers to the judicial governance bodies before the judiciary itself was renewed was a recipe for disaster rather than effective reform.
The majority of these messages were echoed by the Member of Parliament Yaroslav Yurchyshyn. He stated that currently, the perspective of the systemic and comprehensive judicial reform seems uncertain. However, the upcoming President's bill on the judicial reform may be a good opportunity to establish a transparent and clear procedure for selecting judges, and the participation of international experts in this process may play a crucial role.
Former member of the High Qualification Commission of Judges of Ukraine
– Participation of the international experts in the Selection Commission of the HQCJ will ensure a more transparent process of qualification assessment of judges.
He also emphasized that the Public Council of International Experts (PCIE) applied a very different standard of proof, where the candidates for the judgeship had to prove that they are flawless (and the members of the PCIE, PIC or HQCJ had not had to prove that any wrongdoing took place), and this was what contributed to the success of the selection of the Anticorruption court.
Aside from this, participants agreed that the reform of the prosecution in Ukraine stalled and at some point even reversed after the dismissal of the former Prosecutor General Ruslan Riaboshapka, who was heavily supported by the civil society and the international partners. The current Prosecutor General Iryna Venediktova froze many internal changes inside the Office of the Prosecutor General and returned many infamous prosecutors, previously fired by Mr Riaboshapka.
In conclusion, it is obvious that the effective implementation of the judicial reform is possible if the support of such initiative will come not only from the civil society but also from the international partners of Ukraine, e.g. the IMF, which recently approved another tranche of international aid to Ukraine, conditioning it on the reform of the HCJ. The support of the international community may give another impulse for cleansing the judiciary from the untrustworthy judges. Cleansing the HCJ is of particular interest as it is now obvious that the untrustworthy HCJ members are the biggest enemy of the Ukrainian judicial reform.