In recent years, the EU has paid a lot of attention to the importance of the independence of the judiciary for the functioning of the rule of law. The reason for this is easy to find: the erosion of judicial independence in states like Poland has undermined the perception that EU member states are fully stable democracies. Judicial independence also formed a centrepiece of reform efforts in Ukraine following the Revolution of Dignity and the collapse of the kleptocratic Yanukovych regime in 2014.
While this approach has brought clear improvements in Ukraine, it was much less successful in reorganising the way in which judiciary organs were functioning, particularly since many judiciary officials were ‘brought up’ in the pre-2014 system. In fact, improving judicial independence means that these officials are now better equipped to stall reforms potentially.
The insight for the EU is clear: once illiberal governments in member states like Poland come to the end of their tenure, simply restoring judicial independence (including of those judges installed by the illiberals) might not be sufficient to return to a functioning rule of law. These are the main messages for this article.
Judicial independence at the centre of attention
More often than not, public discussions on judicial systems in the West have revolved around questions of judicial independence and political meddling with the judiciary. In Europe, the reasons for these focal points are easily found: political changes in the past decade in Hungary and Poland brought illiberal leaders to power who sought to tilt the political playing field in their favour to increase the chances of their re-election. One part of this strategy is the subordination of the judiciary to the government, undermining the independence of the former through measures that are not necessarily fully legal.
The developments in Poland provide a good insight into the problematic nature of this. The Law and Justice party (also known as PiS) entered into government in 2015 vowing to reform the judicial system and to thereby tackle corruption and communist era mentalities. These reforms were of particular importance for the party as its first stint in government in the 2000s was significantly undermined by courts striking down reforms championed by PiS. One of the reforms in 2015 revolved around changes to the Constitutional Tribunal of Poland. The nominations of judges by the outgoing government’s parliamentary majority for vacancies opening before the formation of the new government were thwarted by the President, who only has a ceremonial role in the nomination procedure.
This gave the PiS government the opportunity to nominate five out of 15 constitutional judges right at the start of its tenure. In order to circumvent pushbacks by the Constitutional Tribunal, the PiS government passed a law reorganising the Tribunal in a way that forced it to admit the newly nominated judges. The Constitutional Tribunal’s subsequent ruling that this law was unconstitutional was simply ignored by PiS instead of being published in the government’s bulletin (usually a formality of ceremonial nature). As a result, the party’s grip over the Tribunal became so strong that the European Parliament recently described it as “a tool for legalising the illegal activities of the authorities”.
Demonstrators held cardboard signs inscribed with the word “Konstytucja,” (translated as “Constitution” with an accent on “you”), in Warsaw on 4 July 2018. Agencja Gazeta/Reuters
The PiS government did not stop there. In 2017, the party tried to remove a significant number of judges of the Supreme Court of Poland by sending them into early retirement, in order to fill the Court with its own nominees. After a large protest wave, the Polish President vetoed the bill and later, the Court of Justice of the European Union (CJEU) ruled against the law. PiS also changed the nomination procedure for Poland’s National Council of the Judiciary, which is responsible for the nomination of judges and reviews of their ethical conduct, in a way that allowed the government to nominate the majority of its members. Both the CJEU and the European Court of Human Rights cast significant doubts on the independence of the Polish body. Political control over the judiciary was tightened in 2019 with the attempt to empower the Disciplinary Chamber of the Supreme Court to punish judges engaging in “political activity” and criticism against the National Council of the Judiciary.
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These examples illustrate that the Polish executive has hijacked the judiciary. As a result the PiS government has not only undermined the division of powers, but also other essential features of any democracy, like checks and balances and executive accountability. The European Union has undertaken efforts of various kinds to attempt to counter the Polish developments. The European Commission has been launching infringement procedures against Poland on a range of issues, including the abovementioned ones, which has led to financial penalties imposed by the CJEU of up to one million euros per day.
EU legislation was passed allowing for EU funds to member states to be halted in case of identified irregularities in the rule of law. Financial support from the EU’s Covid Recovery Fund for Poland and Hungary has also been withheld while other member states have received their funds a long time ago. Commission President Ursula von der Leyen has stated that in order to start receiving Covid money, Poland would have to dismantle the Disciplinary Chamber of the Supreme Court and end its disciplinary regime for judges. These demands indicate that Brussels is keen on the restoration of the independence of the Polish judiciary, as this would ensure further applicability of EU law in Poland.
Judicial reform efforts in Ukraine
Since the Revolution of Dignity in 2013-14, Ukraine has undergone several reforms related to its judiciary, not without direct support by the West. Two notable partners of Ukraine on the judicial reform path are the Venice Commission of the Council of Europe, providing Ukrainian decision-makers with international expertise on reform projects, and the European Union, which has provided the “carrots” for Ukraine’s efforts through the ratification of the Association Agreement, the prospect of a visa-free regime for entry into the Schengen area by Ukrainian citizens and through the continued deepening of economic ties. This gave Ukraine an incentive to follow through with reform plans stipulated in a range of documents related to the EU-Ukraine Association.
A significant part of Ukraine’s judicial reforms in the initial post-Euromaidan period revolved around strengthening the independence of the judiciary branch by removing influence over it from the executive and legislative. Several notable examples can be found: Judges of the Constitutional Court of Ukraine, a third of whom are nominated by the Verkhovna Rada (Ukraine’s parliament) and by the President each, could previously be easily removed by the body that had nominated them if they did not act in that body’s interests. Following a constitutional amendment in 2017, judges of the Constitutional Court can only be removed by a two-thirds majority of other judges of the Court.
Courtroom of the Constitutional Court of Ukraine. CCU
The power to dismiss and transfer judges in ordinary courts was transferred from the Verkhovna Rada and the President to the High Council of Justice, a judicial self-governing body in which judges form a majority of members. Furthermore, the role of civil society in the judicial self-governing architecture became more officialised through the creation of the Public Council of Integrity, incorporating legal activists and academic experts, which is designed to facilitate the work of the High Qualification Commission of Judges in its assessments of the integrity of judges and candidates. Overall, crucial power was transferred from the legislative and executive to the judiciary bodies, strengthening the latter’s independence.
Beyond this, a process was started to reform the courts and other judiciary bodies themselves. The biggest changes so far in this regard was the simplification of the court system overall, removing the number of total instances from four to three as well as a complete reset of the Supreme Court, allowing for a competition that was “significantly more transparent and competitive than in years past”. For the first time, a competitive procedure of this calibre was also open not only to judges but also scholars and advocates, allowing for a more diverse circle of appointees. While the procedure was nonetheless subject to criticism, it did prove to be an important stepping stone in Ukraine’s reform path.
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Another milestone on this path was the creation of the High Anti-Corruption Court of Ukraine. One purpose behind its creation was to transfer the responsibility for cases of high-level corruption from the unreformed courts of first and second instance to a new court that would enjoy more public trust. A noteworthy novelty of the High Anti-Corruption Court was the way in which its vacancies would be filled: The High Qualification Commission of Judges, the body usually responsible for the evaluation of judges, was assisted by the Public Council of International Experts. The six members of this body were nominated by international organizations working with Ukraine in its anti-corruption efforts.
The Council, the existence of which is limited to six years, has the - unprecedentedly far-reaching – competence to filter candidacies to the High Anti-Corruption Court based on moral and ethical standards. In other words, qualification and integrity assessments needed to receive the approval of international experts who had no political association in Ukraine. The obvious effect of this provision is that it allows for a perception of the new court as being outside the influence of actors who might have an interest in undermining the work of the new court, for example, if the court received cases related to them.
New challenges on Ukraine’s reform path
The provisions on appointments to the High Anti-Corruption Court provided an indication of the path ahead for further reforms in the judicial system. However, if initially, a linearity in the trajectory of judicial reforms could be identified, since 2019 reform processes seem to shave encountered more disruptions. In October 2019, a law was passed that was designed to reform both the High Council of Justice and the High Qualification Commission of Judges by adding international expert bodies. These bodies, the activity of which was designed to be time-limited, were supposed to undertake a one-time qualification and integrity assessment of the current members of the two self-governing judicial bodies and of subsequent appointees.
The law was criticised by international experts for the rushed legislative process and the insufficient inclusion of stakeholders, most notably the bodies that were to be reformed. It was subsequently ruled unconstitutional by the Constitutional Court, which interrupted the filling of vacancies and marked the start to a deterioration in the relationship between the Ukrainian executive and judiciary. At the time of writing, Ukraine is still occupied with the implementation of the reform initially passed in 2019, not least because the self-governing judicial bodies are sceptical around having integrity checks carried out on them by other bodies and therefore have an interest in at least stalling such reforms.
At the same time, integrity issues became apparent among judges of the Constitutional Court, most notably since its decision in October 2020 to invalidate much of Ukraine’s post-2014 anti-corruption reform as unconstitutional. This was an obvious setback for Ukraine’s reform path and the commitments made among others to the International Monetary Fund and the EU. More importantly, however, the decision was criticised by the Venice Commission for a number of reasons: According to the Commission, the decision was “handed down in a hasty way”, “incomplete” and “not persuasive”. Three Constitutional Court judges were deemed potentially directly concerned by the legislation for their failure to make due declarations of their financial situation, but they decided not to withdraw from the case without offering an explanation.
Protests in front of the Constitutional Court of Ukraine on 30 October 2020. Olexander Sawytsky/DW
Since there is no legal recourse against a decision of the Constitutional Court, which is final and binding, the implications of the decision were large. Developments such as the one outlined in the paragraphs above do not only undermine public trust in the judiciary, but they also inhibit the emergence of a co-operative spirit between the three branches of power. Soon after the Constitutional Court’s decision, Ukrainian President Volodymyr Zelenskyi tried to remove two judges of the Court who were appointed by Viktor Yanukovych. Of course, this attempt was unsuccessful, as the President cannot make such interferences in the judiciary anymore. Actions of this nature against judges and judicial bodies and a sense of corporatism among the latter, as suggested by the developments outlined in the paragraphs above, are not conducive to democracy.
The issues at hand are clearly of high relevance for the development of the rule of law and by extension of democracy in Ukraine, but they are not related to the question of judicial independence. In fact, the current challenges exist because the judiciary, including the parts that remain insufficiently reformed, has more independence and can therefore defend itself better against subsequent attempts of reform. The Venice Commission has identified this problem in Ukraine and suggests the inclusion of trustworthy external assistance in processes of judicial appointments, promotions and disciplining, in order to avoid a perceived corporatism in the work of judicial bodies. This assistance can also include the time-limited participation of international experts, facilitating the improvement of public trust in the judiciary, the relations between the branches of power and of the prospects for democracy in Ukraine.
Insights for the EU from the Ukrainian case
The developments in Ukraine outlined above provide several insights for anyone seeking to engage with judicial reform strategies. The key takeaway is rather straightforward: Judicial independence is a prerequisite for a judiciary system that is conducive to democracy, but it cannot do the job on its own. Independence alone does not guarantee that judges will meet ethical standards and that they will not put their personal interests above the rule of law. In fact, strengthening judicial independence without a concomitant change in the courts themselves can paradoxically pose risks to the rule of law if judges had been appointed for political motivations.
Beyond this, the Ukrainian case provides food for thought for the European Union in relation to its approach to member states with an undermined rule of law. The restoration of the status of the rule of law in Poland that was in place before PiS entered the government will not be automatically complete as a result of the extrication of the Polish judiciary from political influence. Even taking into account the consideration that Poland had a court system in place before 2015 that was not under PiS pressure, it seems unwise to assume that it would suffice to simply turn back the clock and expect the judiciary’s performance to return to pre-PiS standards.
It appears equally unwise to hope that a change in government and a consequent withdrawal of the most hotly contested policies in the judicial sector should provide an end to the debate on the rule of law in Poland. Most importantly, measures need to be taken to prevent any future executive or government, regardless of the party or parties forming it, from hijacking the judiciary by means that are in a legal grey zone or even outright illegal. This includes the need to overthink ceremonial duties carrying a risk of abuse by leaders (primarily of the executive) attempting to preclude the completion of processes that are not in their interest. In 2017, Ukraine changed the oathtaking procedure for nominated members of the Constitutional Court in that it transferred the location of the ceremony from the Ukrainian parliament to the Constitutional Court itself, in order to preclude the former from de facto blocking an unfavourable nominee (this took place in the late 2000s). Similar steps seem necessary in Poland, presumably not only for the ceremonial roles PiS abused in 2015.
However, quick fixes like the ones mentioned above will also not be enough to get the rule of law in Poland fully back on track after the end of the PiS rule. Even with a significant change in government policy, the footprint left on the judiciary by PiS will not disappear from one day to the other. After all, the judges appointed by PiS during the party’s tenure in government will remain in their positions beyond that time and cannot be simply removed, as this would be an outright infringement on the independence of the judiciary. While lustration, i.e. a wide-ranging cleansing of judges who could threaten (the development of) a democratic regime, is not a violation of legally binding international instruments, it must strike a balance between the defence of democracy and the protection of individual rights.
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However, even with this in mind, a removal of the PiS-nominated judges of the Constitutional Court (by now, all of them are PiS appointees) could be too excessive as an executive measure. Measures need to allow a maximum of depoliticisation in the judiciary. The appointment of new judges needs to be perceived not just as a political reaction to the previous government’s actions, but also it must be intent on the restoration of public trust in an unpoliticised judiciary that is highly qualified and exhibits high standards of integrity. Ukraine’s path of temporarily adding international experts to its judicial qualification boards might provide a way of undertaking this task. Crucially, unless PiS-nominated judges are removed from their positions, it needs to be ensured that they do no derail attempts at judicial reforms strengthening the rule of law. Again, seeking recourse outside of Poland’s borders, for instance at the Court of Justice of the European Union, could be a way forward that avoids potential conflicts between the branches of power that have taken place in Ukraine.
Poland is not the only EU member state facing fundamental issues regarding the rule of law. However, it serves as a good example to show how quickly a stable foundation for an independent and functional judiciary can be removed. The trajectory of judicial reforms in Ukraine after the Revolution of Dignity shows that the (re-)building of the rule of law takes significant time, as executive leaders and their policies can change abruptly, while the effect they potentially leave on the judiciary may persist beyond their tenure. With the Ukrainian experience in mind, the European Union would be wise to keep a watchful eye on developments in the rule of law even after the termination of illiberally minded member state governments and the reinstatement of judicial independence.
Written by David Živković, research assistant at ADASTRA Think Tank
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