«Maidan judges» may remain in the system. Why is judicial reform stagnating?
Why is it impossible to win the independence of the third branch of government?
Control over the courts has always been important for the presidential hierarchy. It gives absolute power, which leads to authoritarianism or dictatorship. At the same time, the courts should help maintain a balance between the president, parliament, and government. When disputes arise between them, the courts have the final say.
The role of the courts in history is often crucial. The Constitutional Court ruled that Kuchma's third term was possible. The «second» round was repeated for Yanukovych and Yushchenko, because there was a decision of the Supreme Court, whereas the same court banned the Maidan gatherings (the «wolf court»).
Trust in the judiciary system is extremely low nowadays. Only the trust in parties is lower. And this is not surprising, as the media report that the head of the Supreme Court, Vsevolod Kniazev, was caught on bribes, or that a judge of the same court, Bohdan Lviv, was found to have a Russian passport.
Without judicial reform, the path to the European Union is closed. But in addition to the influence of the President's Office, the judges themselves are also blocking the reform and trust in the courts. For example, the Grand Chamber of the Supreme Court recently adopted a scandalous ruling that allows the «Maidan judges» to remain in the system. This resolution was criticized by the public sector. It weakens the judicial system, which can be utilized by Bankova Street.
How was the court «reformed» under three presidents?
During Yanukovych's presidency, Andriy Portnov and Serhiy Kivalov were the «watchdogs» of the courts. Back then, oligarchs' companies paid a monthly subscription fee to certain judges. The system of case distribution worked like a «Donetsk locomotive», which means there were cases of interference in choosing the «right judge».
To reform the courts, the Public Integrity Council was created, and the High Qualification Commission and the High Council of Justice were launched.
That was a step towards the independence of judges from political influence, but the chance was not taken. After the Maidan, the courts were «supervised» by Oleksandr Hranovskyi and Oleksiy Filatov, and thus such odious judges as Bohdan Lviv were appointed to the Supreme Court, which was meant to be reformed from the very beginning. It was he who the Public Integrity Council tried to block in 2017, but he passed.
It is worth noting here that when Bohdan Lviv was found to have a Russian passport, several Supreme Court judges emphasized that Russian citizens have no place in Ukrainian courts. That is, they formed a value core, but not a critical mass. The question arises: why did such an odious judge as Lviv get to the court during the judicial reform, despite the opposition of the Public Integrity Council?
Natalia Sokolenko, a journalist and a member of the Public Council at the time, emphasizes that they had questions for the representatives of the USAID donor responsible for judicial reform. It should be added here that now when it comes to the reform of «urban planning», the 5655 project lobbied by the head of the Servant of the People party Olena Shulyak, we see the government and donors working together again. For example, MP Anna Bondar of the Servant of the People party said in an interview with the Holka civic initiative that former Deputy Prime Minister Oleksandr Kubrakov went to the US Embassy to negotiate the blocking of funding for the development of an urban planning code which is an alternative to the urban planning «reform.»
These are very similar trends for the two reforms - judicial and urban planning. If we want real reforms, then it is quite obvious that people like Lviv and Kubrakov not only cannot enter the judicial or political system, but they must be despised by donors.
What has to do with Poroshenko and the judicial reform, he experienced firsthand that it had not been carried out when he left office. Several dozen criminal proceedings were initiated against him. The partners warned against political persecution of the former president.
Under Zelenskyy, the courts were overseen for a long time by Andriy Smirnov, who was only recently fired, but Bankova did not give up trying to influence the courts.
When it comes to judicial reform, it's not just about Bankova Street. After Maidan, former European Court of Human Rights judge Volodymyr Butkevych emphasized that judges must fight for the independence of the judiciary themselves. This is also their area of responsibility.
Why did the scandal over the «Maidan judges» arise?
The Grand Chamber, which is the pinnacle of the judicial system and whose decisions have an impact on the entire judicial practice, considered the case of Vitaliy Usatyi, a judge of the Kharkiv Regional Economic Court.
He argued that the decision on his eligibility for the position had to be approved by a panel of three members of the High Qualification Commission, and not by two-thirds of the entire committee, as stated in the law. The Grand Chamber, contrary to its consistent practice over the years, agreed with Usatyi's arguments.
The Grand Chamber has previously considered more than one similar case, but the decisions were not in favor of the judges. The new judicial practice in the case of Judge Usatyi will apply to about 180 other judges whose evaluation has been «delayed» in anticipation of a possible change in the Grand Chamber's position. Among them are the «Maidan judges».
The Grand Chamber consists of 21 judges, including the Chief Justice of the Supreme Court. At the time of the scandalous decision on the «amnesty», there were 17 judges. It is impossible to find out how many of them voted in favor. However, it was possible to find information that 6 of the 17 judges of the Grand Chamber who upheld Usatyi's claim had participated in similar cases before. In those cases, they did not disagree with the Grand Chamber's refusal to satisfy the claims of other judges, despite the fact that the circumstances of the cases were similar.
Could the same judges of the Grand Chamber in 2024 have upheld a decision in Judge Usatyi's case that was opposite to those they had made in other cases? Or was Usatyi's lawsuit granted only by those judges who were elected to the Grand Chamber in 2023?
The Parliament can help bring our judiciary closer to the European one without spending money from the budget by requiring the number of votes ‘for’ and ‘against’ in the collegial decisions of judges. In this case, society would at least have an understanding of the distribution of votes (this practice exists, for example, in the European Court of Human Rights).
And the High Qualification Commission of Judges and the High Council of Justice, which will continue to be a filter for the judicial system, will face a challenge after the Grand Chamber's decision in the case of Judge Usatyi. In the near future, it will be possible to see which practice of the Grand Chamber they will use when making decisions on the evaluation of judges.