December 4, 2017
Guest post by Oleksiy Filatov, deputy head of the Presidential Administration of Ukraine
It was nearly 1,000 years when Yaroslav the Wise, a Kyiv Rus ruler, converted legal customs into a code known as the Rus’ka Pravda to make his country be ruled by law. But it was not until this November that Ukraine had its probably first truly independent court.
On November 11, 113 new judges of the Supreme Court signed an oath in the Klovsky Palace in Kyiv opening a new page in the history of justice in Ukraine. They were selected after a rigorously transparent competition process probably unprecedented in Europe.
The relaunch of the Supreme Court is one of the cornerstones and first results of the full-scale judiciary reform initiated by President Poroshenko shortly after his election in 2014 in order to make sure that Ukrainians obtain justice in the nation’s courts.
To understand the scale of the transformations envisaged by the reform, it’s important to step back and consider Ukraine’s history. Having gained independence 26 years ago, Ukraine has inherited Soviet judiciary system which was dependent on the law enforcement and communist party bodies. The progress in judiciary independence has been rather modest since then. In addition, corruption runs deep in the country’s culture making the situation even worse.
To solve these long-lasting problems, President Poroshenko set up the Judiciary Reform Council, a non-political advisory body including Ukrainian and international legal experts: practicing lawyers, judges, legal academics, and experts provided by international technical assistance programs to elaborate the strategy of the reform, draft legislation and propose practical solutions to bring Ukrainian legal system in line with the best international standards. The President then has brought to the Parliament the bills based on the proposals of the Judiciary Reform Council and employed all his political influence get them approved.
The reform package includes amendments to the Ukrainian Constitution in line with the standards of the Council of Europe, new legislation on the judiciary, court procedures, enforcement of judgments, the Bar and legal education, as well as resetting a number of key institutions such as the High Council of Justice and the Supreme Court. In other countries, similar changes took decades to complete; Ukraine has done almost all of them in less than 3 years.
These enormous transformations naturally met certain resistance from those who do not want the President of Ukraine to succeed before the new elections in 2019. Also, the old judiciary system had a number of powerful ‘stakeholders’ who rightly considered the reform as a major threat to their influence.
The sabotage efforts have been unsuccessful, and the 113 new Supreme Court judges installed last week represent bright hope for the country’s future.
The judge selection process was exhaustive. More than 1,400 applicants applied to be Supreme Court judges. Those who were admitted to the competition had to undergo a series of complex computer-based examinations that tested their knowledge of the law, the legal and general skills as well as mental and psychological abilities. The tests were followed by interviews with the members of the newly formed High Qualification Commission of Judges (HQCJ), the government agency tasked with selecting new judges, and professional psychologists.
Applicants had to disclose all of their assets, and their family members and relatives employed at government positions. Each candidate has gone through checks and reviews by the National Agency for Prevention of Corruption and the National Anti-corruption Bureau, two government agencies recently established to prevent and fight corruption. Moreover, the dossiers on all candidates were made available online, and the interviews of HQCJ with the candidates were also live-streamed on Youtube.
Dovydas Vitkauskas, team leader of the EU Support Justice Sector Reforms Project in Ukraine, said that the High Qualifications Commission and even ordinary Ukrainians had “more information […] on each one of the candidates than the equivalent judiciary selection institutions in developed democracies.”
The unprecedented transparency also brought some criticism from opposite camps. On the one hand, sitting judges participating in the competition stressed on privacy protection and said the HQCJ went too far on the evaluation of the judges’ activities. On the other hand, some NGO activists claimed that their analysis of certain candidates was not supported by the decisions of HQCJ. The HQCJ, in their turn, sought to find balanced decisions based not on mere allegations but on reliable evidence only and observe a thin line between assessment of a judge’s activity and interfering in their independence.
Independent experts believe that as the result of this process Ukraine has the best Supreme Court it had in modern history from the standpoint of professional competence, integrity and ethics criteria. The 113 new Supreme Court justices also make up Ukraine’s most diverse court ever. Prior to this process, the Supreme Court was closed to anyone outside the judicial system. Now members of the new Court include lawyers, lecturers and human rights activists. One in four of every new Supreme Court Judge is a private legal practitioner or academic. The composition of the court also meets geographical and gender diversity standards.
This re-establishment of the Supreme Court is one of the most important steps on the way of the reform, but only one of a number. The President’s anti-corruption initiatives have swept out hundreds of lower-court judges who did not what to pass through evaluation procedures according to the Constitutional amendments. During the same week that Ukraine’s new Supreme Court was sworn in, 700 candidates were selected to study at the National School of Judges. Also, Ukraine is looking forward to the reform of the Bar and legal education.
These steps, combined with the government anti-corruption efforts and reforms in other areas, should secure sustainable movement of the county on the way to the rule of law. But even the longest journey is shorter if you make big steps – that’s why the recent swearing-in ceremony for Ukraine’s Supreme Court was so important.Guest contributor