As part of TCUP’s series on the current Constitutional Court crisis, we are including an interview with Ivanna Kuz, recent graduate of the REECA program at Harvard’s Davis Center, whose research on the High Anti-Corruption Court gives a bigger picture of the challenges of judicial reform in Ukraine. For background information, see and our primer on Ukraine's Judicial Institutions., our overview of the current crisis, and expert commentary.
The High Anti-Corruption Court (HACC) was created in 2018 to prosecute corruption cases, including high-level cases against political figures. Its creation was spearheaded by civil society organizations, and it had strong support from international institutions that have been overseeing Ukraine’s post-Euromaidan reforms. Unique to the HACC is the involvement of the Public Council of International Experts (PCIE), non-Ukrainian advisors who can block judicial candidates from serving on the court based on ethics and integrity concerns.
In this interview, Ivanna explains the importance of the court and some of the challenges it has faced since it started working in 2019.
Emily Channell-Justice: For people who haven’t read your U4 brief, "Ukraine’s High Anti-Corruption Court: Innovation for impartial justice," tell us in a few sentences what your research is about.
Ivanna Kuz: Thank you so much for taking the time to discuss my research. The focus of my research as a REECA student was on the establishment of Ukraine’s High Anti-Corruption Court (HACC). I approached the subject differently throughout my various written projects, but this brief specifically explains in a nutshell the process and rationale behind the creation of the court as well as its structure and role within Ukraine’s judiciary. It does not address what happened after the court began working in September 2019. In writing this brief, Matthew Stephenson (Eli Goldston Professor of Law, Harvard Law School) and I sought to familiarize the public with this institution and the environment in which it operates.
ECJ: Is the HACC unique in the world?
IK: It’s unique in a way. There are about 20 other countries with some type of a specialized anti-corruption court. These institutions differ in terms of structure, function, the types of cases under its jurisdiction, among other characteristics. For example, some are part of an investigative institution and others have a chamber-like structure as opposed to being a standalone court. The exact types of cases that these courts or chambers have jurisdiction over may also differ. However, all of these specially created bodies are a response to the lack of justice for corruption crimes in the existing courts of their respective countries. The court in Ukraine is different from the others because Ukraine was the first country to invite foreign experts to assist with the selection of judges that will serve on the court.
ECJ: We see anti-corruption rhetoric in basically every election in Ukraine, so how would you define corruption, and why do you think it’s so hard to make reforms that actually make corruption something people get prosecuted for?
IK: It’s definitely very difficult to define corruption as it appears in various forms and in different contexts. There are of course different levels of corruption (high, middle, and low-level corruption), all of which are present in Ukraine and each of them damages the country’s democratic progress in its own way. The media generally focuses on high-level corruption, where individuals hold power and abuse that power in bodies like Ukraine’s Verkhovna Rada, the executive branch, the judicial branch, and the federal agencies. They use their access to power to advance their own private interests. This is the mainstream understanding of corruption. In Ukraine’s situation, not only does this abuse of power flourish, but the system allows it to happen. Lack of transparency and lack of accountability help corruption thrive. While so much of public discussion centers on oligarchy and high-level corruption, which is undoubtedly a serious issue, it is equally important to understand that corruption is deeply rooted at the local level and affects people’s daily lives.
Why is it so hard to reform? There are of course several reasons. The core issue is that in order to make any reform happen there needs to be will and feasibility. In Ukraine, the individuals that need to facilitate reform are often the ones benefiting from the lack of those reforms. For instance, lawmakers in parliament, whose job it is to draft and pass laws to safeguard against corruption are not always interested in doing this, especially if it has the potential to pose a threat to their corrupt activity. Will is needed on all fronts and from all actors involved in the process, which spans from creating laws that safeguard against corruption to executing them, implementing them, and then monitoring their progress in real time. In Ukraine things get a big foggy after safeguards are passed or new institutions are created. We see very little follow-through on reforms.
Unfortunately, the broader issue is that Ukraine did not curb corruption promptly when it took root in the 1990s. Already then, the new country started on the wrong foot. There is of course the legacy of Soviet corruption, but the privatization of the 1990s gone wrong truly fueled corruption for the next two decades. Those who could abuse the power vacuums and uncertainty of that tumultuous period did so. This gave rise to oligarchs, and not just the well-known oligarchs, but the local equivalents who abused power in regional centers, for instance. In those times, people weren’t in the position to hold anyone accountable. The economic situation was dire. Ukraine isn’t known for a lack of mobilization, but at that time people were more concerned about basic things. They didn’t pay attention to the severity of the problem until it became so large in scope that they didn’t have enough power to fight against it. Once it became the norm (solidified during the Kuchma years), change became very difficult.
ECJ: I think that’s really insightful: People who were taking power in the ’90s basically put themselves in a position to remain in power, because ordinary people weren’t focused on the entrenchment of oligarchs.
IK: Indeed. After decades of living under Soviet rule, I don’t think that the general population had any idea of what was coming after the collapse of the Union. They surely did not imagine that such pervasive corruption and a deeply entrenched culture of oligarchy could be the new normal. The individuals taking power were aware of the day-to-day challenges that came after the collapse and they used this to their advantage. One cannot blame the people for failing to hinder the rise of high-level corruption, since the 1990s were a tumultuous time. After studying the HACC I’ve been paying more attention to the catalysts and the venues that can help facilitate reforms in a way that may not have been possible previously. What is encouraging for me is the rise of young brilliant scholars and elite NGOs doing excellent work in pushing anti-corruption reforms forward. This is a direct result of the Euromaidan Revolution of 2013-2014. After 2014, young scholars and activists solidified advocacy efforts on a level that was not seen after the 2004 Orange Revolution. They are not going to facilitate a magical solution, but I believe that their values and adamancy in the sphere of anti-corruption reform will yield positive results. We just passed the seven-year anniversary of the Euromaidan Revolution and it may appear as if Ukraine is right back where it started. Granted, recent domestic political developments are not encouraging, but I think that seven years ago certain processes took root, mostly in the mindsets of Ukrainians, which may not have the desired deliverables at the moment, but with time and continued determination, these things will materialize.
ECJ: In terms of what those groups are advocating for, what would be the ideal situation? What role should the courts be playing in preventing corruption and holding officials accountable? What would it look like if that actually worked?
IK: First and foremost, the ideal situation would be to have properly functioning and cooperating anti-corruption bodies, which were established after the revolution (namely the National Anti-Corruption Bureau, the Specialized Anti-Corruption Prosecutor’s Office, the National Agency on Corruption Prevention, and the High Anti-Corruption Court). This AC framework should then facilitate a balance between the prevention and punishment of corruption. These two strands need to complement each other and develop alongside each other. But having these AC institutions in place and working is just the beginning. The entire Ukrainian judiciary needs reform.
Its problems are multifaceted. Some of the problems exist with the politicization of judges. Many judges do not follow the procedures in place and there is no one holding them accountable. I think the problem also lies in a lack of transparency. I understand that some court cases have to be kept confidential and not publicized. But there’s so much that’s being done behind closed doors. All of that is then put under this massive corruption umbrella. What is really happening and who is in the wrong is unclear. Is the judge being bribed? Is something wrong with the way the procedure is executed by the judge? Are judges utilizing existing legal loopholes or breaking the law? Are they being threatened to do any of the above? There is a difference between abusing your seat on the court for your own desires and being threatened to do so. If the wellbeing of you or your loved ones is in jeopardy, this is an entirely different problem.
What kind of protections exist for those judges who are threatened? I think that for any changes to happen, there needs to be more transparency, and particularly transparency with the public, rather than solely a select few bureaucrats or policymakers. People need to know what is going on and why. This then becomes a problem of media monopolization and what information is disseminated to the people (and by whom), but that is an entirely other issue.
Another factor is that it is not so easy to just revamp the entire judiciary and implement changes that can be seen in courts throughout the country. Ukraine needs new monitoring mechanisms that hold all judges accountable. The change needs to start with the reform of the High Council of Justice (HCJ). During the selection process to the High Anti-Corruption Court, the HCJ was responsible for submitting the final list of judicial candidates to the president for approval. The HCJ is the judicial body in Ukraine that appoints the judges; hence, the final step in the selection procedure. The HCJ is also responsible for initiating disciplinary proceedings regarding corrupt judges. President Zelensky has publicly committed to an overhaul of the judiciary, but so far there has been no progress on that front. The new government exhibited some initial attempts with newly passed laws back in October 2019, but either they were purposely written with loopholes or the lawmakers just didn’t know that HCJ could find a way around its implementation. Thus, there was an initial attempt. It is difficult to speculate whether this was a genuine attempt or a PR stunt. Civil society has continued to call on these crucial reforms, offering its expertise and assistance. However, a will to change from all actors is crucial.
ECJ: So do you think that lack of accountability and the lack of retribution is the reason judicial reform has been so difficult, or are there other characteristics of judicial reform in particular that make it different from other kinds of reform?
IK: I think that an additional layer to this is that there’s a lot more to lose with judicial reform. With education and health care reforms, for example, the changes are a lot less threatening. These reforms are also difficult; there is no doubt about that. They are comprehensive in nature and require a lot of time. But they do not directly threaten specific individuals with jail sentences. They are more preventative. For example, a decision to implement reform that directly monitors and punishes you if you take bribes for exams scores in the future is one thing. But saying, “oh, let’s reform the courts so that there is a chance to go back to the past and punish you for those serious embezzlement schemes” is a tad more frightening. Transparent and accountable courts are a more targeted threat. It’s not a reform that’s simply set out to impose certain rules of conduct for the whole of society. It’s a reform that can also cause you to lose all your [stolen] assets. Fear is an important part of the story.
ECJ: And the people who are afraid, that includes judges and people who are in the judiciary. Does it include other people, too, like representatives in government?
IK: Of course. Representatives in the Ukrainian government have benefitted from a broken judiciary for years. In fact, because they are more in the spotlight than judges across the country, they may be more concerned about the consequences of punishment on their reputation.
ECJ: Which makes sense, because a working judiciary would hold them accountable.
IK: Definitely. Although when I looked at the bigger picture of the debates surrounding the HACC’s establishment it seemed a bit odd that there was so much pushback. Honestly, no one is expecting judicial reform to happen (at least to the full extent) anytime soon. With Ukraine’s track record of taking one step forward and two steps back, it’s understood that comprehensive judicial reform will take time. Because of this track record, I was surprised that the government was as adamant as it was in opposing the HACC. In fact, their reaction gave the whole process more publicity. If they had not publicly opposed the HACC, they could have just let this campaign run its course, assuming that this court would probably be corrupt since the judicial system as a whole is corrupt. Or, they could have found a way to hinder the court’s work if the usual corrupt practices weren’t present.
People who read my brief have asked me, “Do you really think the HACC is going to work?” Clearly the MPs who opposed it, along with then-president Poroshenko and his administration, thought it was going to work. Because if not, why bother resisting its formation? Especially if there is IMF funding attached to the formation of the court. This IMF funding was crucial for Ukraine at the time, so opposing the HACC seemed a bit counterproductive on their end, if they did not genuinely fear the consequences of having this court.
ECJ: It’s interesting given the reform platform of most of these politicians, who are like, we’re new! We want new stuff, we don’t have anything to hide! And yet, not coming out in support of an institution like that I think is really telling.
IK: Yes, unfortunately. Additionally, fatigue with the battle against corruption may have played a role. The HACC campaign was at its height in 2017 and 2018, which was already a few years after the Euromaidan Revolution. Although the pace of reforms is no way an indicator of their quality, in this case I think getting things done ASAP was necessary. Trauma from a revolution as intense as the Euromaidan, followed by the Crimean annexation and then a war, is a major driving force. Sometimes trauma helps to push reform in ways nothing else can. Granted, NABU and SAPO were set up in 2015, so one can argue that they did move quickly there. But by the time the HACC was being considered, those responding to proponents of the court would say, “Look, there are already these new institutions, why do you want more things? They’ve been doing a relatively decent job, so why do you need this court? We have courts. We’ll do broad judicial reform.” So I think people were already tired of staying on the anti-corruption bandwagon. Broad judicial reform is an easier commitment because it doesn’t have concrete deliverables with a timetable. There is room to maneuver. The previous government that came to power in 2014 was a mixture of different types of individuals, so I wouldn’t say that it was overall very reform-minded.
ECJ: Yeah, that’s a really good point, that there was combination of people not necessarily pushing for it and then people just getting kind of tired of all the reforms. I want to talk a little bit about international experts. You mention in your blog post that having a council of international experts who influence the court is unique to Ukraine, so can you talk a little bit about what that body is expected to do?
IK: The Public Council of International Experts (PCIE) was created for a period of six years, by the Law on the High Anti-Corruption Court. Its six members are selected for two years only. They need to be (re)selected every two years. And then after six years, the law will need to be amended if they want to keep the PCIE going. The first working session for the PCIE took place for 30 days in January 2019, after the judicial candidates had taken their practical exams.
Currently, the PCIE is made up of experts from Europe and Canada, although it can include experts from any country. These foreign experts focus on vetting candidates for honesty and integrity; thus, they look at judicial candidates’ asset declarations and previous experiences. The PCIE has decision-making power in whether or not candidates progress to the next stage. In order for a candidate to move forward, he or she needs at least three votes from the six-member PCIE. If a candidate does not receive the minimum three votes due to questionable asset declaration or prior record, that candidate would have to sit in front of the panel of foreign experts combined with Ukraine’s High Qualification Commission of Judges (HQCJ).
The HQCJ is the judicial institution responsible for selecting judges in Ukraine. At this panel, the respective candidate has to present necessary documentation to help dismiss whatever concerns are raised by the PCIE. If the candidate cannot provide sufficient proof (and, in the initial selection, there were indeed many who could not), the candidate is disqualified from moving forward in the competition.
Hence, only with the blessing of the foreign experts can a candidate continue in the process.
All of this is terrific. However, there is criticism that the PCIE has limited powers because they simply weed out the worst candidates of the bunch, rather than selecting the best. Obviously, the latter would be ideal, but provided the hostile political environment that the HACC draft laws had to face, the function given to the PCIE is already an achievement. Civil society and proponents in the Rada fought to give foreign experts more power, but some compromise was necessary for the HACC to exist. When the draft law was approved in March 2018, there were more than 1,000 amendments added for consideration before the final vote in June 2018. At the end of the day, the power that was given to the PCIE was the best-case scenario in the hostile political environment. Having foreign experts do what they did was the biggest win for the proponents of the court. Regardless of what is in store for the HACC --the experience of inviting international experts to have a say in the selection process will be valuable for any future reform effort. In one of my blog posts I criticized the practice slightly, but only because I do not think that it is a sustainable solution. It is definitely a tool that Ukraine could use to its benefit in the next few years, especially if applied to selection processes for the HCJ and other institutions. However, the input of foreign experts must be viewed as a learning opportunity and not a crutch.
ECJ: What do you think needs to happen for Ukraine not to need foreign experts to do that job?
IK: All of the individuals who are involved in the selection process – those from the Public Integrity Council (PIC)*, the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ) – would need to be highly qualified and highly transparent. They would need to show a track record that spans several years showing Ukrainians at home and the international community that they are capable of doing their jobs moving forward. Because even if High Council of Justice undergoes an overhaul, which is the ultimate goal, and the HCJ is filled with new and untainted members, we’d need to wait for a few years to watch and assess their work. Will they become politicized? If they will be threatened, how will they respond to these threats? Will they succumb to the corruption that’s happening around them? If not, what tactics will they use to fight it? The HCJ and HQCJ are in need of serious reform, but their credibility will not be established through an integral selection process alone. They will have to prove their integrity through hard work once they have the job. The work of both institutions is crucial because the entire selection process for HACC justices is essentially done by them. Once HCJ approves the final candidates, the president then has to sign off. This signature is mandatory once he receives the names. He cannot refuse to do so; hence, this step is only a formality. The appointment does not require legislative approval from the parliament.
ECJ: So what about in a local institution? You talk about the Public Integrity Council, as well, which is made up, from what I understand, by Ukrainians, rather than foreign experts. Do you see any use for an institution like that to continue to help with the vetting process?
IK: I think it would be great for the PIC to have more power. Created in 2016, it was meant to assist the HQCJ in assessing the ethics and integrity of judicial candidates during the qualifications assessment of the competition. The members of the PIC did exactly that for the selection process to the Supreme Court in 2017. Unfortunately, the HQCJ simply did not listen to their concerns and suggestions. As a result, many judges of questionable integrity were appointed to the Supreme Court. Legally, the PIC’s suggestions are not binding, so the HQCJ was able to ignore them. The PCIE, on the other hand, has decision-making powers. Because the selection process to the Supreme Court did not go as well as they hoped, civil society activists knew that in selecting judges for the HACC, the PIC would once again be overlooked, so that’s why they fought for the PCIE. If the HCJ and HQCJ were highly regarded and functioning bodies, I don’t believe either the PIC or the PCIE would be necessary, but until that is the case, civil society needs to play an active role in the judicial reform process. Giving the PIC the same decision-making powers as were given to the PCIE would be one way to eventually stop having foreign experts.
ECJ: Yeah, it seems like a great idea to use this international body of experts as an example, and then eventually transfer that same amount of power they have to a local institution with local experts.
IK: I don’t believe it has been considered and don’t know whether it will be. It’s just something to look into in the long run. Right now, I think that learning from the practice and utilizing foreign experts is the best approach to these judicial selection processes. Until Ukraine can set up the necessary bodies to be transparent and accountable, other options are fragile. Having a domestic institution of highly qualified experts from civil society and academia that can deliver and execute legally binding decisions as the foreigners did, would be a major step forward. That’s just my humble opinion, but it would allow Ukraine to stand on its own two feet.
ECJ: Tell us more about how you did your research. What methods did you use, and why? Are there threads that you’d like to explore more now that you’ve finished your MA?
IK: My research was based on a combination of (1) desk research focused on secondary sources and (2) in-person interviews conducted in Kyiv. The interviews were essential for both the U4 Brief and my MA thesis. At the time when I was planning my trip to Kyiv and then conducting interviews in July-August 2019, there were very few resources available on the HACC. The judicial selection process finished in March and the official swearing in ceremony was not until April, so most of the resources that I could find were media articles. Analyses began to appear only during the summer when I was conducting my interviews. Hence, the idea to conduct interviews was an obvious methodical choice. Additionally, this topic is highly specialized. I wanted to get the best information I could from only those who were most involved with the campaign to establish the HACC rather than encompass the broader issue of judicial reform. Due to agreements I made to protect the privacy of my interview participants, I cannot discuss the interviewee groups in greater detail, but I can say that I tried to have representatives from all sectors: the judiciary, the government, international donor organizations, and civil society organizations. The people I interviewed were highly knowledgeable, open, and excited to discuss the court. Each person I interviewed helped complete the HACC puzzle. Special thank you to HURI for awarding me the summer travel grant to make this experience possible.
There are so many threads I'd like to explore now that I've finished graduate school! I have a keen interest and love for justice, so I will continue looking at anti-corruption efforts from the lens of judicial and legal reform. Mainly I would like to study the presence of corrupt elites at the intersection of the judiciary, prosecution, and police. All three have kept Ukraine from progressing toward a more transparent and democratic state. I am also very interested in how Ukraine can keep its new anti-corruption institutions safe and functional. The creation of the HACC, for example, was a success, but erecting institutions left and right doesn't guarantee sustainability. How can Ukraine keep the HACC accountable? How can it safeguard a budget, for example, that's free from future political influence and meets the needs of judges in the future? How can Ukraine give civil society actors permanent legal roles in vetting the people who work in these institutions? Yes, they've done a great job advocating, publicizing, and pushing for reforms, but is there a way they can have more power to keep a check on the institutions? Also, how does digital governance fit into all of this? I’m very interested in better understanding the ways in which e-government can assist in curbing corruption.
I think the fight against corruption should be multifaceted and sustained. Different tools must be applied simultaneously to different sectors and at all levels of corruption (from the highest to the lowest and pettiest crimes). Much of the attempts will have to be trial and error. Only long-term systemic changes that can penetrate the existing corruption norms and practices can steer Ukrainian society away from those norms and practices.
|
Ivanna Kuz has a Master’s Degree from Harvard University’s Program on Regional Studies—Russia, Eastern Europe and Central Asia. She was a student assistant at Harvard's Ukrainian Research Institute and is now working internationally. In 2020 she was a regular contributor to The Global Anticorruption Blog. Her research interests include legal and anticorruption reforms in the region, with a country focus on Ukraine. |
*The Public Integrity Council is made up of Ukrainian experts in non-governmental fields, such as human rights groups, legal experts, and journalists. The Council is tasked with assisting the HQCJ in making decisions about potential judges, but it has no decision-making power itself.