Last week, Ukraine´s international partners – the EU, the US, the UK, Germany, Canada, Council of Europe, UNDP, EBRD – proposed their experts to vet and select members of the top judicial governance bodies in what may become the first sweeping judicial reform during the 30 years of Ukraine´s independence.
At a first glance, this may seem a bit weird. It is a Ukrainian reform, a Ukrainian issue. There are no international obligations for Ukraine to reform its court system in one or another particular way. But there are important European principles on judicial independence, judicial ethics and professionalism for members of the Council of Europe and associated partners of the EU to uphold and respect. And so a working, transparent, just and fair court system is something very European. And Euro-Atlantic, if you will. It is something held dear to democracies across the globe. And this is why international partners stand ready to help Ukraine, presenting impartial experts with splendid careers, exhaustive experience and, most importantly, full independence from any vested interests, who are ready to work alongside Ukrainian colleagues.
The offer is not unprecedented. International partners helped reform the Supreme Court in 2016 and establish the High Anti-Corruption Court in 2018, providing legal advice on constitutional changes; advisory support; mentoring, communication and financial assistance to the Public Integrity Council and psychological testing for Supreme Court candidate judges. For the High Anti-Corruption Court, Ukraine’s partners helped to create a unique Public Council of International Experts that assisted the Ukrainian High Qualification Commission in selecting anti-corruption judges of the highest integrity and professionalism.
Both the new Supreme Court and the High Anti-Corruption Court were established following a transparent and competitive process, never before applied in Ukraine. And both courts enjoy a higher level of trust from citizens and businesses than the judicial system in general.
Trust is a crucial issue here. According to a Razumkov Centre opinion poll from July-August 2021, the judicial system is currently the 3rd least trusted institution in Ukraine, after Russian media and the hard-to-embrace State apparatus. 74% of Ukrainians do not trust at all or are unlikely to trust the judiciary. This is not only about trust in an institution. It is about faith in one’s own state, about trust that Ukraine can be a fair place. The untrusted court system undermines the Ukrainian state and democracy, every day.
And so, the judicial reform is more than just an internal affair. A trusted and fair judicial system is the linchpin of economic development and foreign investment. It is an unfortunate fact that Ukraine’s court system has become the main obstacle for foreign investors. Every potential investor wants certainty that if something goes wrong, he or she will have justice from the courts. Today, Ukraine cannot offer such certainty.
Ukraine’s leaders have acknowledged the problem. The country has a rare chance now for a comprehensive judicial reform, for several elements are conducive to this: legislation for reforming the High Council of Justice and re-establishing the Judicial Qualification Commission was adopted in July; one part of the judiciary is already reformed; the low public trust undermines the state; the reform is needed for getting investments; there is strong public recognition of the need for comprehensive reform and international support is there.
Implementing the reform will still be awfully complex. It will be about the fate of real people. Corrupt individuals will fight for their positions, supported by oligarchic and often pro-Russian interests. But even the unblemished may not relish being vetted – for anyone who remembers totalitarian society, as I do, a notion of a “Public Integration Council “may sound rather Orwellian indeed. It is a very delicate matter. I hope that international participation – limited in time to last for some years by the new laws – can help mitigate some hesitations and help to get through the procedures.
It is now time for Ukrainian partners, most notably the Council of Judges and the High Council of Justice, to make up their minds: to try to delay and diminish the reform or to nominate their experts and get to work. Personally I emphatically reject the post-Soviet-style cynicism I sometimes hear in Ukraine, which says “it was never done”, “it can´t be done“, “no-one is interested in a fair court system“ and “the judicial mafia will not let this pass”. People who went out on the Maidan in the Revolution of Dignity and who turned Ukraine decisively to Europe demand judicial reform. And they deserve it. President Zelenskyy and Ukraine´s political leaders have shown formidable determination in responding to this demand, in passing the necessary legislation. Now, perseverance and persuasion is needed to clear the final hurdles. Cooperation from the judicial system is in society’s interest. And it is always for the political leadership to bear responsibility for reforms, with due recognition when these are successful. Ukraine and its international partners can achieve this, moving forward together.
Read the Ukrainian version of the op-ed as published in European Pravda: https://www.eurointegration.com.ua/experts/2021/09/15/7127811/