Halyna Chyzhyk, Tetiana Shevchuk, Anti-Corruption Action Centre, Kyiv, Ukraine
2022 should become the year of the launch of the most comprehensive judicial reform in the history of Ukraine. The aim of the reform is to relaunch judicial governance bodies under new transparent rules. It has been already called “the mother of all reforms” as its successful implementation will have a significant influence on the entire rule of law sector in the country. Moreover, a successful Ukrainian experience would be significant for all the countries in the region struggling with the same problem of the corrupt and ineffective judiciary.
The judicial reform in Ukraine is the most expected and needed reform because less than 2% of Ukrainians trust the judiciary. Corrupt and ineffective courts are a threat to the security, well-being and human rights protection of citizens. They enable the system of political corruption, impunity and cronyism. At the same time, the corrupt courts become an obstacle for reforms in other sectors, as any decision of the government can be blocked through a court by bad actors. After several failed attempts to reform the judiciary just by adding new good judges to the system, it became clear that reforming the judiciary should start from the reform of judicial governance bodies.
In the course of previous attempts of reforms, the judicial governance bodies had greenlighted a number of tainted judges who later took the new institution over, while the reform had no implications on the lower level courts activities. In addition, European standards on the judiciary proved to be ineffective in countries like Ukraine, where cleansing of the tainted judges should come first and only then granting more independence to the judiciary should follow. The European standard of “the majority of judges elected by judges” in the judicial governance bodies in fact shields the judiciary from any reasonable attempts to ensure the integrity and accountability of the judiciary. Corrupt and politically dependent judges were strengthened and formed “clans” that received full control over the judicial system. In this, Ukraine is not unique and most of the countries of the region struggle with the same problem.
In July 2021, the Ukrainian Parliament broke this vicious circle by introducing open and competitive selection of judicial governance members. The law adopted by the parliament suggests the establishment of an independent panel – called the Ethics Council. The Ethics Council consists of three judges nominated by the Ukrainian judiciary and three international experts nominated by international partners of Ukraine. The mandate of the Ethics Council is to assess the integrity of candidates who apply for the membership in the High Council of Justice (the main judicial governance body in Ukraine). It also has powers to initiate the dismissal of current members of the Council who do not meet integrity criteria. Importantly, international experts within the Ethics Council have a decisive vote in the process.
The model of the Ethics Council is quite a unique concept and it does not directly correspond to the established European standard of independence of judicial governance bodies, which is believed to be the best guarantee of judicial independence. The research “Judicial Governance in Transitional Democracies: Lessons Learnt” finds that this standard only proved its efficiency in the mature democracies, where the justice systems were built in centuries, and serves as a safeguard from any undue political interference over courts.
However, in the countries that only started democratic transformation, the concentration of powers in the hands of judges has led to self-interest, self-protection and cronyism. Therefore, the experts from Armenia, Bulgaria, Georgia, Moldova, Romania, and Ukraine prepared “Recommendations towards ensuring accountable and independent judicial governance in transitional democracies”. The document suggests that in order to ensure the independence and trustworthiness of the members of judicial councils it is crucially important to ensure that members of judicial councils undergo a public, transparent and fair selection procedure. The panel assessing the integrity of the candidates applying for positions in the judicial council should be composed of independent unbiased experts possessing outstanding professional and personal qualities and having impeccable reputation and trust of the society. Furthermore, aiming at fostering public trust in the process, national systems should encourage the involvement of civil society and international experts.
The Ethics Council established in Ukraine is one of model examples of such a panel for assessing and appointing members of judicial councils. The involvement of independent and unbiased experts outside the national judicial system is crucially important to guarantee transparency and independence of the process as well as to gain back public trust in the judicial system. If the Ukrainian approach of judicial reform proves to be successful, it should become a good foundation for a new standard of reforming judiciary applied in the transitional democracy countries.
This this article was produced with the support of the European Union and the International Renaissance Foundation within the framework of the EU4USociety project. Its contents are the sole responsibility of the authors and do not necessarily reflect the views of the European Union and the International Renaissance Foundation.