Ukraine: Why Justice Reform is More Vital Than Ever

Amid Russia’s full-scale invasion of Ukraine, civil society groups are pushing for key judicial reform to continue. Halyna Chyzhyk, who leads judicial reform advocacy in the Anti-Corruption Action Centre (ANTAC), a Kyiv-based NGO, explained to IWPR journalist Svitlana Morenets why Ukraine’s cannot afford to allow such processes to be delayed.

IWPR: What are currently the main areas of justice reform in Ukraine?

Halyna Chyzhyk: We are now implementing the reforms that started in the summer of 2021. The Verkhovna Rada [Ukrainian parliament] voted in two important laws - the reset of the High Council of Justice and the High Qualification Commission of Judges.

These are two bodies that decide everything in Ukraine’s judicial system. They select judges and decide who to appoint. The High Council also deals with judges’ disciplinary responsibility; only it can dismiss a judge or give consent to his or her arrest or detention.

The High Qualification Commission conducts competitions and submits candidates, carries out integrity checks and submits recommendations for dismissal to the High Council.

Why does Ukraine need to reform these two bodies?

Unfortunately, we have a system in which most bodies are made up of judges elected by other judges without any competition or integrity checks. Today the judicial system in Ukraine is clan-based, in which influential groups of judges control the entire system. They ensured the election of their people to the High Council and then controlled the judges.

These reforms are very radical. In 2016, the legislation of Ukraine changed in such a way that neither the Verkhovna Rada nor the president had any influence on the judicial track. The power of appointment or dismissal of judges was given to the judiciary. Thus the judicial clans gained full control over the system.

Why did the reform fail in 2016?

The bill was supposed to provide for the launch of a new supreme court. But the problem was the law did not reset the High Council of Justice and the High Qualification Commission. The same people under the influence of judicial clans were appointed to the supreme court and re-confirmed all current judges. The High Council of Justice and the High Qualification Commission were formed from the same people. That is why the reform did not work.

How can Ukraine break up this clan system?

The independence of judges can be ensured only via these reforms. The process of competitive selection of members of judicial bodies was launched last year. The independent commission evaluates candidates. The key criterion is integrity.

This process has been successful thanks to international expert, who already played a crucial role in selecting judges for the High Anti-Corruption Court of Ukraine. This guaranteed that judges with a trail of dubious decisions and assets that cannot be proven could not get into the High Anti-Corruption Court.

The court has demonstrated a completely different quality in these three years. At the end of July, the court handed down 63 guilty verdicts, 39 of them with prison terms. Previously, it was impossible for a judge who took a bribe to go to prison.

Now we have engaged international experts in order to check the integrity of those who want to become members of the High Council of Justice and the High Qualification Commission of Judges. Two days before the full-scale Russian invasion, the Ukrainian ethics council began interviewing candidates for the High Council. This process was suspended, but resumed in April.

Are there any signs that this reform works?

Parliament’s recent decision to appoint Mykola Moroz and Roman Maselko to the High Council of Justice proves that this reform model is working. The Ukrainian parliament demonstrated unity because votes came from both the Servant of the People party and the opposition.

Previously, such candidates had no chance; they would lose to other candidates who promised political loyalty. Now, judges, parliament and the president can appoint only the candidate who has successfully passed the ethics check.

Has the High Council of Justice already begun operating?

For the High Council of Justice to start its work, it needs at least nine members. The Ukrainian parliament recently appointed only two members. Four more were already there before the reform. According to the constitution, this body consists of 21 members, so 15 more need to be appointed.

Most vacancies will be filled by judges at the congress in Kyiv in October or November. The ethics council now evaluates candidates. Only one member must be appointed by the president, and some more by law universities, lawyers and prosecutors. Therefore the standard of quality must be repeated during other appointments.

How does the ethics council now operate?

There are six members. The Council of Judges of Ukraine appoints three judges or retired judges, and the others are international experts nominated by Ukraine's partners. The experts have a decisive vote and the right of veto.

Since the full-scale invasion, the council decided to take the process of interviewing candidates behind closed doors. Before, all interviews were broadcast. The reason they gave was that Putin, in his address before the invasion, said that judicial reform was one of the reasons why Russia was starting its “special military operation”.

Public organisations do not agree with this decision. The election of worthy candidates to the High Council of Justice is a matter of great public importance and interest. As a society with reasonable doubts about the integrity of specific candidates, we do not have the opportunity to make sure that they provide explanations that dispel any doubts.

Why did the previous members of the High Council of Justice resign?

According to the reforms, only future members of the High Council of Justice needed to pass an integrity check. As of February 2022, the High Council of Justice had 17 members whose mandates would end in 2024-2025. That would mean that the reform could show the results only after three or four years. We could not wait that long.

Therefore, the law determined that the ethics council would also conduct an integrity check of the High Council of Justice members. At first, the judicial mafia tried to block the launch of the ethics council. But they could not: the bill’s initiator on the High Council of Justice reform was President Volodymyr Zelensky. Ukraine had obligations to the International Monetary Fund and the EU.

When the judges realised the sabotage plan was not working, they nominated their members. Last December, the ethics council was finally created. The High Council of Justice members realised they could not pass the inspection successfully. Most of them resigned. We need to recruit new members to make the High Council work again.

Why are there still 2,500 open vacancies for judges in Ukraine?

According to the staff list of judges in Ukraine, there should be a little over 7,000. Currently, almost 5,000 judges are working in Ukraine. The judges started to quit and retire in 2016.

At that time, the electronic declaration system was about to start. There were new rules on criminal liability for lying and illegal enrichment. The National Anti-Corruption Bureau was just beginning to work. Judges who did not want someone to check their property resigned voluntarily.

The problem was that the judiciary did not announce new competitions to fill vacant judicial vacancies.

Do public organisations help the ethics council carry out integrity checks?

Ukraine has a very active civil society, pushing judicial reform. When the High Council competitions finally started last year we also evaluated the candidates’ information. From open sources, we analysed their past declarations and decisions. We published analytical materials regarding doubts about the integrity of the candidates. We also shared all the information with the ethical council.

Since the full-scale invasion, the authorities removed public access from many registries. The Russians also use this data to find representatives of the Ukrainian authorities or their relatives in the occupied territories and to force such people to cooperate. The ethics council has access to this information, while for public organisations candidate analysis has become more complicated.  We make official requests and receive this information. It just takes more time now. 

How can Ukrainian judges who joined the occupation authorities be prosecuted?

There should be two parallel processes. Those judges should obviously be dismissed even before the investigation ends. Unfortunately, the High Council of Justice cannot yet make that decision because of a lack of members.

Also, there must be a criminal investigation, especially when talking about high treason. But again: without the High Council of Justice, these processes are impossible to implement. Only the High Council of Justice can suspend, dismiss, or authorise the detention of judges. This is our guarantee of judicial independence. That's why not a single judge has been fired since February.

Were ties with Russia a reason for disqualifying candidates before the invasion?

Even now, I can't say whether it is a reason for disqualification. The ethics council has made few decisions so far. Now they are evaluating 42 judges who applied to the High Council of Justice under the quota of the Congress of Judges. We analysed these candidates and found that the judges have close ties to Russia in several cases.

For example, one candidate's father is a Russian citizen and owns land there. Another candidate's father and brother have business in Russia and often travelled there after 2014. I am interested to see if this will become one of the reasons for disqualification.

Since 2017, the Public Integrity Council has discussed this issue. We paid attention to judges travelling to the Russian Federation, Crimea or Donbas and systematically pointed to this as a potential risk to the independence of such judges.

We have no guarantees whether such judges who constantly travel to Russia do not have connections with representatives of the occupation authorities or the FSB. But the High Council of Justice and the High Qualification Commission of Judges ignored all these facts.

Why does Ukraine need to continue justice reform even during the war?

Russia tried to show Ukraine as an incompetent state that could not overcome corruption and create independent and fair courts. That means that such a country should not be supported because those in power will steal all European or American money sent to Ukraine.

That is why judicial reform is essential to show that despite the difficulties we have because of the war, we continue to work on the domestic front and implement change. It was not by chance that Putin mentioned judicial reform in his speech.

The independent courts are a guarantee of democracy in Ukraine. With independent courts, we will be economically and financially stronger, independent and successful.

Russia does not need a successful and independent Ukraine with a developing economy. Russia needs a Ukraine that can be controlled, whose resources can be exploited and kept in Putin’s sphere of influence. That is why they attacked us.