Results-2022. A Shift from State Populism to Pragmatism Regarding the Court and Judges

Judicial reform in Europe/the world and in Ukraine

2022 in the judicial system ends with strange events. The most extraordinary ones took place on December 15, when virtually the entire political leadership of the country took part in the work of the Plenum of the Supreme Court, dedicated to the 5^th anniversary of its opening.

President Zelenskyy’s speech at the Plenum showed that in the political rhetoric of the leader of independent Ukraine, which is fighting for freedom, new talking points have appeared regarding the judicial system.

President Zelenskyy, followed by his political associates, at least in public rhetoric, turned from state populism to pragmatism regarding the court and judges. At the end of the first year of the war, this is really important also because the state machine of Ukraine met the war with the operating High Qualification Commission of Judges (HCJC), which thanks to the entry into force on November 7, 2019 of the law On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and Certain Laws of Ukraine regarding the Activity of Judicial Governance Bodies, until February 24, 2022, had not worked for 26 months. Ukraine faced the wartime also with the constitutional body, the High Council of Justice (HCJ), having been paralyzed two days before the war due to resignation of 10 members at once on February 22.

Thus, about 60 state functions, which they used to collectively perform, were stopped.

Why two key bodies in the judiciary were stopped, what the consequences were, and who exactly was interested in such a situation is the subject of a separate article.

Adaptation to martial law

However, since the very first days of the war, the parliament has adopted a huge number of laws aimed at adapting almost all aspects of peaceful life to the conditions of martial law. The list of these laws only would take several dozen pages. That part of the new legislation, with the help of which the activity of the courts was adapted, has helped Ukrainian judges having faced the same problems as the rest of the country (i) quickly restore the efficiency of the courts and (ii) in the conditions of war, effectively carry out justice in all government-controlled territories, although considering the need to evacuate families, air raids, lack of electricity, damage to buildings and other similar problems. Heads of the courts in Vasylkiv, Boryspil, Makariv, dozens of other district and regional centers, and the capital have showed real and inconspicuous crisis management in the conditions of confusion of the first days of the war in some large offices.

There is reason to believe that in this direction, in the conditions of a full-scale war affecting the entire territory of the country, the judicial, legislative, and executive branches of government of Ukraine have coped effectively. Perhaps for the first time in world history.

Europe repels attacks on the independence of the judiciary

Meanwhile, several government reports were published in Europe with an audit of the results of reforms of the European judicial systems for the year.

Legislative efforts aimed at strengthening the independence of judicial councils have been initiated in Luxembourg, Croatia, Italy, Cyprus, the Netherlands, and Sweden. Unpleasant developments surrounding the national councils of the judiciary are a key topic in such EU member states as Spain, Bulgaria, Ireland, and Slovakia.

Our friends in Lithuania have been failing to appoint a permanent head of the Supreme Court for several years (due to the political position of the country’s president). In Albania, due to mistakes in judicial reform, only one judge has been working in the Supreme Court for several years. In Hungary and at our best friends in Poland, the restrictions on the independence of the judiciary created by politicians have reached the level of the highest bodies of the European Union and even the European Court of Justice.

In Ireland, a new draft law on the appointment of judges limits the government’s discretion in the procedure. In Croatia, the process of appointing the head of the Supreme Court was changed to avoid a “potential impasse in the future.” In the Czech Republic, changes to the legislation were aimed at creating a transparent and unified system of recruitment and selection of judges and court presidents. The Netherlands is considering changes designed to further strengthen the independence of the judicial system, and especially regarding the appointment of Supreme Court judges.

There are still problems related to politicization and restrictions on the participation of the judiciary in the procedures for appointment to the higher courts and to the positions of the heads of courts in Malta, Greece, Bulgaria, Latvia and, what is especially surprising, Austria, as well as traditionally in Hungary and Poland.

And already in late December this year as a present “under the Christmas tree” the Constitutional Court of Spainaccepted the appeal of the main right-wing opposition People’s Party with the demand to stop the reform of the procedure for electing judges in some judicial bodies, including the Constitutional Court itself, from passing through the parliament. The party issued a resolution prohibiting the Upper House of Parliament from discussing and voting on amendments to the country’s criminal code, which became an unprecedented interference in the activity of the legislative body.

A comparison of the current problems of the judiciary in European countries with the situation in Ukraine shows both similarities and differences between them. We solved many of the same problems as the rest of the European countries. However, it should be emphasized – and it will be fair – that we managed to solve many problems (regarding composition and political independence of judicial authorities, competitive and transparent system of electing judges and electing heads of courts) several years earlier (for example, as early as 2016) than many European countries.

Finally, the USA is also trying to catch up with us in some issues. Literally on May 10 of this year, the draft billS.4177 — Judicial Ethics and Anti-Corruption Act of 2022 was submitted to the Senate.

 Inter alia, the draft bill:

— prohibits federal judges and Supreme Court judges from having an interest in the ownership of individual shares and securities;

— requests that the Conference of Judges of the United States issue rules limiting the acceptance of gifts in connection with the participation of judges in private judicial seminars;

— expresses the opinion that the Code of Conduct for US judges should also apply to judges of the Supreme Court;

— requires federal and Supreme Court judges to report every association or interest that requires the judge to be removed, including any financial interests of a spouse or minor child residing in the household;

— establishes a committee to consider complaints against the actions of judges of the Supreme Court.

Apparently, this draft bill is a reaction to the results of the work of the Biden Commission, which has prepared a voluminous report on the results of the discussion on the possible reform of the US Supreme Court.

The judges of our Supreme Court should be surprised since the Code of Judicial Ethics applies to them in the same way as to the rest of the judges.

The Council of Judges of Ukraine, in addition to this document, has approved a thorough official commentary.

  The authority of the High Council of Justice, which considers disciplinary complaints against judges in Ukraine, also extends over judges of the Supreme Court, as well as over judges of the first and appellate instances. Without any exceptions.

Experts from serious scientific schools believe that “vulgar, systematic, and insidious” attacks on the independence of the judiciary continue in Europe. This is how the authors of the German Law Journal, published with the participation of an international team, has assessed the situation in an article under the stunning title Recent Attacks on the Independence of the Judiciary: Vulgar, Systemic, and Insidious.

  According to them, “vulgar attempts” mean the direct intervention of state officials in specific cases being considered by the courts. “Systemic attacks” are disguised as legislative measures regarding the judicial reform. They effectively undermine the structures of judicial independence and can have far-reaching destructive consequences.

“Insidious efforts” can be the most dangerous and have the most far-reaching consequences. These are attacks aimed at the very legitimacy of the judicial system. Politicians leading these attacks primarily direct their rhetoric at the public, claiming that judges who oppose any positive change are the ones to blame for the politician’s failure to fulfill his promises. At the same time, politicians seek to strengthen their power by reducing public trust in the judicial system.

The reader may think that these statements are written about our country. But no. The article deals with the situation in the Czech Republic, Slovakia, Poland, Hungary, and the USA.

Ukraine: structural problems will be solved. Apparently

Meanwhile, in Ukraine there are such structural problems and the results of their solution, which radically differentiate our situation from the European one.

  At the end of 2022, despite the war, after significant pauses that cannot always be explained by the state of war, the appointment of new members to the HCJ was set in motion. One of the functions of the HCJ, in accordance with the law adopted even before the war, will be the appointment of a new composition of the HCJC, which has not been working for more than 37 months.

  Will the new members of the HCJ be well-versed in not only the disciplinary function, but also the budgetary issues, as well as the details of the development and functioning of electronic justice systems? Will the new members of the HCJC from the first day of work (and it should exactly be from the first day) understand the specifics of the rather complex personnel procedures for recruiting new judges and competitions for positions in appellate and specialized courts? The intermediate results of the unhurried work of the Ethics Council, which provides assistance to the HCJand the Competition Commission for the selection of candidates for the positions of members of the HCJC, do not yet ensure such confidence.

The situation is also complicated by pre-war mistakes, for example in the legislative regulation of the disciplinary function of the HCJ. However, the authorities do not have a single opinion regarding who exactly should initiate changes to the current law – the office of the president or a group of members of the HCJ, who have been working for almost a year, but do not perform the functions of the state in a non-authorized constitutional body.

  An even more difficult and still unsolved problem is the need to simplify rather complex procedures for selecting judges and competitive procedures for appointing judges to appellate and specialized courts. It is surprising, but not all concerned persons realize that “simplification” and “shortening of deadlines” lies not only and not so much in the work of the HCJC, but also in the fact that after the HCJC, candidates’ documents can remain motionless for an inexplicably long time (months and years) in the HCJ and in the office of the president.

Systemically, it is vital to consider that in some sections of the state machine mutually exclusive ideas are put forward. In parallel with the pragmatic idea of “simplifying” and “shortening” personnel procedures, it is proposed to fill the freed time with giving the public new powers in the evaluation of candidates in the selection procedure, and therefore ensuring new opportunities for employment. And this automatically means that there will be no shortening of the terms of recruitment of new judges. On the contrary, the terms will be extended.

Regarding the implementation of the electronic court, it seems that after criticism of the results of its development within the judiciary itself and corruption scandals related to hardware purchases, a promising consensus is beginning to form regarding the involvement of the Ministry of Digital Transformation of Ukraine in this process.

Conclusion on cautious optimism and the role of the pink marshmallow fairy

Despite the existing problems, we can talk about cautious optimism in anticipation of the results of carrying out certain elements of the judicial reform. In 2020–2022, the authorities got rid of the most bitter enemies of the judicial reform from among political careerists, corruptors, and enemies of independence, who formed the organizational foundation of the counter-revolutionary attack on the judicial reform that began on February 15, 2019.

If it is possible to protect the judicial reform also from populists and find the necessary funds for its financing, then in 2023 it will be possible to see positive structural results. However, it will still be necessary to convince our partners that the obtained results should be compared with what we had before and with our neighbors on the European continent, and not with what the pink marshmallow fairy has fantasized about…

Instead of conclusions

  Obviously, you don’t always have to compare yourself to Europe – not everything is fine there either. But why then do we have more and more relevant documents and laws, and the system works worse than the ones in Europe?After all, the reforms in the defense sector of Ukraine showed that in less than ten years it is possible to build one of the most powerful armies in the world. And, by the way, precisely with the help of partner countries located on the American and European continents.

During the war, the courts have managed to keep their ability to administer justice exactly thanks to good administration. The real war has showed that a political confrontation between the branches of government inside the country, which has an active and aggressive external enemy, is unacceptable. Deliberately exaggerated (for political reasons) attacks on judges undermine the rule of law within the country and the reputation of its entire legal system in the international arena.

Moreover, it is irrational to adopt good laws and then organize their non-implementation, in particular by making contradictory amendments to new laws, combined with the lack of irreversibility of punishing unscrupulous judges.

It is necessary to unite the efforts of all branches of government, parishioners of statecraft, i.e., professionals and representatives of the public. Each of them has its own unique mission in this reform. Strengthening the institutions of the judicial branch of government with people able to think systematically and adequately will enable courts and judges to work effectively not only in wartime, but, no less important, in the difficult years of the country’s recovery when peace comes.

This article was prepared with the support of Cara's Fellowship Program.

Any views or information included in the publication are entirely those of the Author.

Read this article in russian and Ukrainian.