Many of the countries transitioning from communism in the early 1990s have struggled to achieve justice systems that meet the standards of independence taken for granted in much of Western Europe. In Ukraine, this phenomenon is especially acute with judges held in low esteem by the public and widely perceived to be corrupt. For example, an extensive survey of public opinion conducted in September 2016 on behalf of the EU Advisory Mission found only a 14% level of trust in the courts. The consequent damage to the rule of law and ultimately the economy is immense.
There are people of influence in Ukraine who recognise this and act vigorously and in good faith to tackle the problem. Equally, there are others who pay lip service to the need for reform and have a vested interest in the preservation of the status quo. Vectors of forces of this nature are manifested in the legislation that has been adopted over the last few years and has generally had mixed results.
Efforts to eliminate corruption
With the collapse of the established order in the early 1990s, corruption became endemic in state and public bodies in Ukraine, including, most definitely, the courts which had not enjoyed proper independence in the Soviet era. After the Maidan protests of 2013-14, the Parliament adopted several laws ostensibly directed at judicial reform. While these laws did not go as far as many would have wished, they did contain some positive elements. For example, members of two key judicial governance bodies were replaced; the rules for photographing, video- and audio-recording court proceedings were liberalised; and a system of vetting for all sitting judges was introduced.
Starting from scratch: a new Supreme Court
More recently, on 2 June 2016 amendments of the Constitution were adopted which brought the provisions relating to justice almost wholly in line with recommendations of the Venice Commission, an advisory body of the Council of Europe composed of independent experts in constitutional law. The most significant effect, perhaps, was to shift power over the careers of judges from the President and the Parliament to a reconstituted judicial governance body with a majority of judges or retired judges as members.
On the same day, the Parliament adopted legislation by which the existing Supreme Court of Ukraine and the three specialised appellate courts immediately beneath it would be ‘liquidated’ and a new, enlarged Supreme Court would be formed. Judges of the courts being replaced would be eligible for appointment, but so would experienced legal academics and lawyers who had never served in the judiciary. Some fresh blood untainted by the past would be highly desirable.
On 7 November 2016 an advertisement was posted online for 120 vacancies for positions in the new Supreme Court. Of the 846 applicants, 653 were found to meet the minimum requirements for appointment. They were then given a background check on the basis of information provided by the recently created national body with responsibility for investigating corruption. The remaining 625 candidates went on to the stage of written examinations: a multiple-choice test and a legal drafting exercise in a single hall in Kyiv on 16 and 21 February 2017. Representatives of interested domestic and international organisations, such as myself, were able to be present to observe the proceedings, which were also video-recorded and made available online.
The marking of the multiple-choice test was automated and conducted in the presence of the candidates and observers immediately afterwards with the scores shown on a big screen. In both written examinations, the candidates were identifiable only by computer-generated numbers.
Following psychological assessments, the remaining candidates will be interviewed on the basis of a publicly available dossier giving information on their past professional experience and their financial circumstances and assets. Those with large fancy houses and a fleet of luxury cars can expect to be asked how they came to own them. These interviews should be live-streamed so that the media will be able to pick up on any awkwardness that emerges.
The recently established 20-member Public Integrity Council selected by civil society organisations is unique to Ukraine. It can investigate judicial candidates’ circumstances and provide information for the dossier and its finding that a particular candidate does not meet the necessary standards of ethics and integrity will carry special weight. It remains something of a wildcard. Civil society is remarkably active in Ukraine and it has no shortage of healthy iconoclasm, but quite how effective the Public Integrity Council will be remains to be seen.
Overall there is an exceptional degree of transparency in the selection process and the candidates are subject to a high level of scrutiny. How then can judges of the utmost probity and judicial ability fail to be selected? There is certainly reason to expect that some judges of the new Supreme Court will come into this category, but complete success is not a likely outcome because the deficiencies are so deep-seated.
Quite apart from the question of who will be selected, there are other uncertainties. The Constitutional Court has yet to decide on a challenge by the existing Supreme Court to the legislation on which the formation of the new Supreme Court is based. Also, the new court will not be able to start work immediately with the appointment of the 120 judges. Other actions, including the adoption of further legislation, will be needed. How long all this will take is not known.
Comparisons with the UK
The selection process for the new Ukrainian Supreme Court exhibits broad trends that are discernible elsewhere in Europe: a public competition, the use of written tests and a more clearly defined procedure. In the critical aspect of independence, the judiciary in the UK achieves the highest standards, as is generally recognised in Ukraine and throughout the world. It is also relatively well-trusted by the public, ‘Enemies of the People’ style headlines notwithstanding. However, no human arrangement is perfect. The Bar and the judiciary have been unrepresentative of British society in terms of gender, ethnicity and social background for as long as anyone can remember. Attempts to reverse this, which appear to be as frequent as the waves of criticism, have achieved some success, but, as is clear from the plans of Lord Neuberger to make the Supreme Court more diverse, further measures are necessary.
The systemic changes sought in the British and Ukrainian judiciaries are uncontroversial, but extremely difficult to accomplish because of entrenched factors in society that go way beyond the judicial system. In both jurisdictions, various actions have been taken over a number of years and, though they have not been ineffective, they have plainly not been sufficient either.
Efforts to introduce diversity in the UK Supreme Court since its establishment have amounted to small but significant steps in the right direction. The outcome of the formation of the new Ukrainian Supreme Court is less predictable, taking place as it does in a less stable institutional environment. The extraordinary level of openness of the process and the exhaustiveness of the testing reflect the depth of the problem as well as an aspiration to identify the best candidates. The presence of scores of heavily armed police and special forces officers guarding the candidates during the written examinations tells its own story. Whoever will eventually be chosen to become judges of the new Supreme Court, corruption within the court system as a whole will remain.
Serious consideration has been given to the dismissal and replacement of all judges in Ukraine, but the time for such radical action has passed – quite apart from its questionability from the points of view of Council of Europe standards and practicality. Evolutionary change is therefore the only option; and in the Ukraine as in the UK it will require several initiatives over a number of years. Realism, patience and a willingness to confront and tackle weaknesses are present in Ukraine, together with countervailing forces, but these positive elements give grounds for hope.
Contributor John Cubbon is Senior Adviser on Judiciary to the EU Advisory Mission in Ukraine