ARCHIVES Danyliw Seminar 2014
McGill U, Canada, firstname.lastname@example.org
Politics and the Law
Why Does Kivalov Still Pull the Strings?
The Judicial Lustration Process
A fair, clean, and independent judiciary was among Euromaidan’s top demands (Popova, 2014a). Societal demand for better courts continues to be strong. Data from the Lustration Committee shows that citizens complain twice as often about judges than about legislators, municipal officials, and state bureaucrats combined. What are the implications of the dramatic political changes of the last six months—the exit of Yanukovych and his family from Ukrainian politics, the collapse of the Party of Regions, and the election of a new president—for the judiciary? The plausible alternatives are:
Bona fide judicial reform aimed at cutting ties—parasitic or symbiotic—between judicial elites and political incumbents and creating the institutional and cadre foundation for a judiciary that is both politically independent and clean;
The replacement of judicial elites close to Yanukovych with judicial elites close to Poroshenko and the continuation of the symbiotic/parasitic relationship between the two branches.
The conversion of Yanukovych-era judicial elites into Poroshenko supporters and the continuation of the close relationship between the two branches. This option would entail pledges of allegiance from the old judicial elites to the new incumbent.
Digging-in by Yanukovych-era judicial elites, who aim to transform the judiciary into a politically independent, but still corrupt institution. Then they could reap the benefits of corruption rents without also catering to politicians’ preferences.
The first development (bona fide judicial reform) is desirable from a rule of law standpoint, while each of the other three would leave Euromaidan’s demand for independent and clean courts unfulfilled. Empirically separating all the options, though, is challenging, especially in the short-run. First, we can only guess whether efforts to purge Yanukovych-era cadres are part of a genuine attempt by Poroshenko or the government to reform the judiciary or a continuation of the practice of political interference in the judiciary. Second, earnest judicial reform takes time and we do not know precisely how much change we should expect six months in. It is also hard to know how much and how effective resistance from the judicial elites about to be purged we should expect.
I argue that, on balance, the main events in judicial affairs over the past six months point to the last scenario. In the rest of this short piece, I will first try to show that Ukrainian society is interested in judicial reform. Then I will go over the attempts of the post-February Rada majority to pursue judicial reform by adopting a wide-reaching judicial lustration bill and purging the Constitutional Court from Yanukovych supporters. Finally, I will present some evidence that despite these government and civil society efforts, the Yanukovych-era judicial elites have so far managed to dig themselves into their positions of influence within the judiciary and have used them to challenge the government’s attempts to assert itself. Whether they will continue to hold on, given the solidly pro-presidential parliamentary majority we can expect after the October 26 elections, remains to be seen.
Societal demand for judicial reform
Ukrainians are very dissatisfied with the performance of the judiciary. Both the civil-society-organized Lustration Committee and the Temporary Special Commission for Review of the Courts of General Jurisdiction (TSC), created in accordance with the judicial lustration law, have hundreds of complaints against judges in a few short months. The TSC has received nearly 1000 complaints since it started functioning in early July. The Lustration Committee, which solicited complaints against any officials, has received nearly 3000 complaints since April. Complaints against judges form the biggest share of complaints in the Lustration Committee data base. The Lustration Committee have shared with me a sample of 299 randomly-selected complaints. Figure 1 shows that complaints against judges form over 40% of the sample and are by far the biggest complaint type. If we add the complaints against prosecutors, police officers, investigators, and SBU officers, we see that two out of every three complaints target this broader group of law enforcement officials.
The data (Fig 2 and Fig 3) suggest that the distribution of complaints across court levels (first-instance, appellate, and high courts) and court types (general, administrative, and economic) roughly follows the distribution of judges across these categories. Only the share of complaints against high court judges seems to be higher than the share of judges who serve on these courts (14% vs. 4%), but this result seems intuitive. The greater salience of the cases that the high courts hear probably increases the likelihood that the losing litigant would perceive the process as unfair and the judges as biased and politicized.
I have done some initial coding of the allegations in the complaints against judges, based on the full text of the complaints in the sample (Fig 4). The analysis suggests that complainants mostly decry judges’ incompetence and corruption, rather than political bias. Very few complaints mention civil rights violations during Euromaidan or other political cases.
Judicial reform attempts and plans
Almost immediately after Viktor Yanukovych’s departure, on February 24th the new governing majority in the Rada turned its attention to the courts. The Rada declared that in 2010, the Constitutional Court had unlawfully turned Ukraine back into a presidential republic. Thus, all justices who voted for the controversial pro-Yanukovych decision had violated their judicial oaths and ought to be dismissed. The Rada recalled the five constitutional justices elected on its quota during 2010 and called on the president and the Council of Justice to also revoke those justices from their quotas who had signed the 2010 decision (Popova 2014b).
In March, the new governing majority, with extensive input from civil society activists from the newly-formed Lustration Committee, drafted and proposed the Law “On Restoring Trust in the Judicial System of Ukraine”. The law was enacted on April 11 and has since become widely known as the “judicial lustration law”. The law has two cornerstones—1) the automatic dismissal of the judicial leadership cadre: court chairs and deputy chairs, the members of the High Qualification Commission of Judges (HQCJ), and the members of the High Council of Justice (HCJ); and 2) the formation of a Temporary Special Commission for Review of the Courts of General Jurisdiction (TSC). The TSC, which started work on July 3rd, has 6 months to gather complaints against judges who may have violated the judicial oath or who may have violated civil rights during Euromaidan. After analyzing each complaint, the TSC decides whether to recommend the offending judges to the new HCJ for dismissal (for more on the law, see Popova, 2014b).
As I will discuss shortly at greater length, the judicial lustration law has not had the far reaching effects that it promised due to resistance from the Yanukovych-era judicial elites. Thus, over the summer, justice minister Petrenko talked about a new bill, which would mandate a re-appointment procedure for the entire judicial corps. All judges would have to pass reviews of their professional capabilities and income in order to remain on the bench. By the fall, incumbents moved away from cadre changes and towards a series of narrower measures aimed at improving efficiency. Current judicial reform plans that the minister of justice and the prime minister have discussed include replacing the economic courts hierarchy with another institutional formula, introducing taping of proceedings, and reversing some of the Yanukovych-era changes that severely reduced the jurisdiction of the Supreme Court. Judicial cadre changes, either in the form of systematic lustration or re-attestation, seem to have become a more long-term plan. A judicial reform strategy drafted by the Presidential Administration envisions a 70% turnover in judicial cadres over the next five years, but does not provide sufficient detail about how this target would be achieved.
Kivalov and some “Donetskie” hold on
Yanukovych-era judicial elites have (so far) resisted attempts to be purged and have refused to bow down to the new government.
At the lowest rung of the judicial hierarchy, district court chairs have effectively ridden out the wave unleashed by the April judicial lustration law. The law summarily fired all chairs and their deputies and mandated that judges in all courts elect new chairs. The media has reported that 80% of previous court chairs got re-elected to their previous positions. I am in the process of collecting data on the chair elections held in the spring to verify the figure cited by journalists. So far, I have received 18 official responses from district courts (3% of all courts). The response rate is still very low, but the results are consistent with those reported in the media. In 83% of the cases (15/18), the previous court chair was re-elected. In over half of the judicial elections (10/18) the previous chair ran unopposed for his old job. No Yanukovych-era chair was actually defeated in an election. In the three courts with turnover, the previous chair simply did not stand for re-election, possibly ceding his/her seat to a designated successor. None of the 18 courts reported any judges leaving the bench or being fired since February 2014. In short, the data begin to paint a picture of continuity rather than change in the district courts over the past six months.
Continuity outweighs change at the judicial governance institutions as well. Even though the judicial lustration law envisioned the immediate disbanding of the High Qualification Commission for Judges (HQCJ) and banned the re-election of anyone who had served on it, the HQCJ continued operating with its Yanukovych-era membership for months. Some legal wrangling has resulted in some turnover, but full compliance with the lustration law has not been achieved to this day. How did judicial elites avoid complying? As soon as the law was promulgated, an employee of HQCJ tendered his resignation, but the chair of the HQCJ refused to accept the resignation, citing the suspension of his authority by the judicial lustration law. The employee filed a petition with the Kyiv Administrative Court, which mandated that the HQCJ should continue to function, despite having been immediately disbanded by the judicial lustration law. The case has been going through the appellate process and in the meantime, the HQCJ continues to function in its Yanukovych-era composition.
Moreover, the HJQC does not appear to be currying favor with the new political incumbents. It has started receiving referrals for disciplinary action from the TSC set up under the judicial lustration law to identify judges who violated citizens’ rights during Euromaidan and has so far been remarkably lenient on the offending judges. It has so far punished 3 judges with a 2-month suspension.
The other judicial governance organ, the High Council of Justice (HCJ), has become a veritable battlefield for influence between Yanukovych-era judicial elites and potential newcomers. The HCJ has 20 members of whom three serve ex-officio (the chair of the Supreme Court, the prosecutor general and the minister of justice). The rest of the members are appointed by the procuracy, the president, the Rada, and congresses of judges, lawyers, and law professors. The three members of the presidential and prosecutorial quotas have been appointed, have taken oath, and can exercise authority. Throughout the spring and the summer, a series of competing congresses took place all aiming to fill the 9 spots from the quotas for judges, lawyers, and law professors. On the one hand, Yanukovych’s close ally, Sergei Kivalov attempted to continue his practice of holding congresses in Odessa, which always nominated his hand-picked candidates for the HCJ. His congresses were disrupted by civil society activists, determined to put an end to Kivalov’s dominance over judicial governance. When pro-incumbent congresses managed to meet and come up with nominees, Kivalov and former Party of Regions MP, Inna Bogoslovskaya, filed lawsuits challenging the lawfulness of the alternative meetings. The cases ended with judges rumored to be close to Kivalov and, thus, he unsurprisingly won them. The cases are still going through the appellate process and therefore the pro-government nominees for the HCJ cannot yet take office. In the meantime, the Rada has not even managed to nominate the three members of its quota. Thus, only 8 out of the institution’s 20 members can legally exercise their authority.
Outside of the HCJ context, there is additional evidence that Yanukovych-era judicial elites have retained their influence. Kyiv Appellate Economic Court chair, Oleg Khripun (rumored to be a close ally of Kivalov’s) was re-elected to his position. The former presidential administration deputy chair in charge of the courts, Andriy Portnov who was perceived as the most powerful person in the judiciary under Yanukovych, holds no formal office today, but has still managed to win five defamation lawsuits against the General Prosecution. His protégé, Igor Samsin, continues to chair the HQCJ. The chair and deputy chair of the Supreme Economic Court, Yanukovych’s Donetsk allies, Viktor Tat’kov and Artur Emel’yanov lost their positions, but only after Lustration Committee activists closely monitored and interfered in the judicial election.
The new chair, Bogdan L’vov, however, has since been accused of seamlessly continuing to cater to Tat’kov and Emelyanov’s preferences.
Finally, at the apex of the judicial hierarchy, the Constitutional Court also continues to be dominated by Yanukovych-era appointees. Two of the justices dismissed by the Rada in March have won their jobs back by challenging the Rada resolution in the Supreme Administrative Court. Turchinov backed out of firing the justices from the presidential quota, purportedly because he expected that the courts would reverse his decree with the argument that he was only an interim president. The Congress of Judges also did not even consider the Rada’s resolution and did not recall the justices from its quota. Thus, the current Constitutional court has 11 Yanukovych-appointees and 6 non-Yanukovych appointees (4 post-Yanukovych appointees and 2 pre-Yanukovych appointees).
On the one hand, the dogged survival of Yanukovych-era judicial elites bodes well for the emergence of a judiciary that is independent from political incumbents. On the other hand, the retention and retrenchment of deeply compromised judicial elites does not bode well for the Ukrainian judiciary’s popular legitimacy. It is also unlikely that greater independence from politicians would translate in any gains in the fight against corruption. Rather, if the competitive, but corrupt democracies in the Balkans (Bulgaria, Romania, and Croatia) provide any lessons to Ukraine, it is that the entrenchment of judicial elites behind a fortress of institutional independence is associated with high levels of judicial corruption. In any case, it is too early to tell whether the Yanukovych-era judicial elites will indeed manage to retain and consolidate their grip on the judiciary. It is also plausible that the pro-presidential parliamentary majority and Samopomich (which bring Lustration Committee founder, Egor Sobolev into parliament) will reinvigorate and ultimately win the battle with Kivalov and co.