Crize instituţionale – puterea judecătorească

Electoral Uncertainty and Judicial Dependence:
Evidence from Ukraine 

 

ALEXEI TROCHEV

Ukraine’s judiciary is in crisis today because the ruling elites capture the courts and abuse judicial authority in order to win elections and/or remain in power. High stakes of winning elections and low probability of being punished for perpetrating illegal pressure on courts allows Ukrainian public officials to interfere in judicial decision-making and result in judicial disempowerment.

Keywords: judicial independence, Ukraine, political fragmentation, courts

 

Ukraine’s judiciary is in crisis today.¹ During Ukraine’s Orange Revolution of 2004, many applauded independence of the Ukraine’s Supreme Court that canceled results of fraudulent presidential elections and ordered a repeat vote, which the opposition candidate Viktor Yushchenko won. But by the middle of 2009, both foreign and domestic observers decry judicial dependence in Ukraine: President Yushchenko repeatedly blames the judicial system for serving as a „brake” on the country’s democratic development;² judges openly complain that the judicial system is in crisis due to unprecedented pressure from politicians and government officials on the judiciary;³ the Freedom House reports that the „judicial framework and independence” was stronger in Ukraine of 1999 than it was in 2009;⁴ the World Bank in its Worldwide Governance Indicators also shows that Ukraine’s „Rule of Law” indicator for 1996 was higher than the one for 2007;⁵ and Ukrainians themselves increasingly distrust the judiciary – only 4 % view the performance of courts positively (down from 25% in February 2005).⁶ The crisis of Ukrainian judiciary is a puzzle for the mainstream theories of judicial empowerment that argue that the presence of 1) strong political opposition, 2) fragmentation of political and economic power, and 3) vibrant elections are the necessary if not sufficient condition for developing accessible, independent, and powerful judiciary.

Despite having highly competitive elections at both national and local levels, despite bitter rivalries between the executive and legislative branches of government, and despite the growing dispersal of political and economic power, post-Orange Ukraine saw a few steps to empower and insulate courts in contrast to many steps towards weakening them through the actual appointment of loyal judges and dismissals of the recalcitrant ones, the pressure on individual judges to issue ‘correct’ decisions and to revoke ‘incorrect’ ones, and the defiance of unfavorable court rulings. How and why does Ukrainian judiciary suffer from greater pressure, dependence, and public disrespect at the same time as Ukraine features vibrant, free and fair elections, flourishing freedom of mass media, heavy involvement of the international donors in the legal reform,⁷ and (up until the advent of global financial crisis in the fall of 2008) high levels of foreign investment in the growing seven-percent-a-year economy? More generally, how and why does political competition lead to judicial disempowerment?

This essay argues that judicial disempowerment in Ukraine goes hand in hand with increasing fragmentation of political and economic power because rival elites continue playing power politics and abusing judiciary in order to gain and or remain in power.⁸ The high stakes of political competition force rival elites to use all available resources (including courts) to win elections and/or to remain in power and to undermine the political and economic bases of rivals. Facing electoral uncertainty, the rulers and the opposition try to pressure or to buy judicial loyalty, to dole out important judicial positions to their cronies, to influence judicial decision-making, and/to enforce favorable court decisions and defy unfavorable ones – all in order to remain rich, powerful, and alive now. Ukrainian judiciary is in crisis today because the powerful feel that they can intervene in any judicial trial, and that they are above the law. As an expert assessment of Ukrainian courts noted, „Government officials employ an array of means in their attempts to influence the judicial decisions, ranging from letters, telephone calls or personal visits to judges or court chairmen to open criticism of specific judicial decisions that diverge from their view of the correct outcome.”⁹ Politicians can get away with this clearly criminally punishable behavior due to the entrenchment of impunity, which subservient courts only strengthen. To show how and why the powerful and the opposition faced strong incentives to capture the courts, which in turn were expected to provide important benefits to their patrons, and acted upon these incentives, this article proceeds to examine improper interference with judicial decision-making in Ukraine, an aspect of informal judicial politics that the large-N cross-national studies of judicial independence fail to capture. But first it is necessary to explain why the mainstream theories of judicial empowerment are inadequate at explaining the current judicial crisis in Ukraine and why exploring Ukrainian judicial politics is important for this explanation.

Fragmentation of Power and Judicial Dependence

Mainstream approaches to post-authoritarian judicial empowerment in societies as diverse as Japan and Mexico, Korea and Bulgaria propose to focus on the structure of political party systems and the nature of electoral competition.¹⁰ These theories argue that, in the uncertainty of democratization, politicians who fear electoral loss create a strong and independent judiciary to protect themselves from the tyranny of election-winners in the future. Weak political parties or several deadlocked ones, something that we observe in Ukraine, are likely to produce powerful, independent, and accessible judicial institutions. In view of these theories, the ruling elites are strategic: they forego the immediate benefits of making courts dependent. Without specifying benefits provided by pliant courts, the mainstream theories claim that the incumbents entrench judicial independence now to ensure that the future ruling majorities do not issue orders to courts to punish election losers. The standard ways to ensure against this threat involve formal institutional change: 1) to create judicial review tribunals – either new separate constitutional courts or already existing supreme courts – and to grant them the powers to declare laws and regulations unconstitutional, confirm the constitutionality of election results, etc.; 2) to insulate judges from potential pressure by appointing them for life, paying them high salaries, making it difficult to remove them from the bench, etc.; and 3) to entrench all of these protections in the rigid Constitution. These judicial review tribunals, then, police the boundaries of constitutional politics while the rulers abide by these constitutional rules and obey unfavorable judicial decisions in order to persuade the current opposition that the laws and courts really constrain the rulers now and will constrain the election-winners in the future.

True, judicial empowerment is an elite-driven process. Politics of judicial reforms in post-communist countries, democracies and non-democracies alike, clearly show the absence of the involvement of civil society in the processes of reforming courts. Drawing on the struggles for power in the 17th-century England, North and Weingast note that the process of empowering courts is „intimately related to the struggle for control over governmental power”.¹¹ As we shall see, this observation holds true for the 21st-century Ukraine: who controls the courts there is a very political and politicized question. And elections in both consolidated democracies and incomplete autocracies reflect the distribution of power among rival political forces and endow the election-winners with much needed legitimacy however short-lived this legitimacy might be. The power consists of resources, and law and courts deliver these resources to the rival elites. Some critics may scorn this instrumental view of law and courts, but post-communist rulers are accustomed to governing and reforming their societies through law: they simply follow the steps of their pre-communist and communist predecessors. 

However, as Popova forcefully argues, the mainstream theories of judicial empowerment ignore the benefits that subservient courts provide to rulers in uncertain environments.¹² Without knowing the value of these benefits, it is difficult to persuade the rulers and the opposition that: a) the independent judiciary would be more attractive to them than the dependent one; and b) the expected benefits of creating independent courts in the future are higher than the existing benefits of keeping pliant courts now. Knowing these benefits is important because of high stakes involved in winning elections in nascent democracies and unconsolidated autocracies. Many scholars agree that in such political regimes upon winning elections the rulers govern without many constraints until they are outvoted, overthrown, impeached, exiled or murdered.¹³ The high stakes of political competition may outweigh the benefits of leaving the courts alone and may force rival elites to use all available resources (including courts) to win elections and/or to remain in power and to undermine opponents. Facing electoral uncertainty, the rulers and the opposition try to pressure or to buy judicial loyalty, to appoint their cronies to  important judicial positions, to influence judicial decision-making, and/to enforce favorable court decisions and defy unfavorable ones – all in order to remain rich, powerful, and alive now. Thus, the short-term power needs may prevail over long-term strategic considerations of politicians threatened by the possibility of electoral defeat.¹⁴

Facing strong opposition in the legislature or in the executive branch, the rivals turn to courts to accomplish their objectives because both the rulers and the opposition know that judges can deliver important tangible benefits. Electoral revolutions, peaceful street protests against electoral fraud which led to the overthrow incumbent presidents, in Serbia (2000), Georgia (2002), Ukraine (2004), and Kyrgyzstan (2005) – all saw high courts canceling fraudulent election results.¹⁵ Courts may disallow popular politicians from running for important positions or reinstate political parties in the election campaign, and, as a result, influence the outcome of elections, as it repeatedly happened in Bulgaria.¹⁶ Winners in these cases tend to applaud judicial independence, while losers accuse courts of submitting to the pressure of the winning party. As politics becomes more polarized, the accusations of judicial dependency grow, and the media is only happy to publish scandalous accounts of judicial biases and errors.

Politicians and economic magnates can get away with this clearly criminally punishable behavior due to the entrenchment of impunity, which subservient courts only strengthen. Impunity is entrenched 1) formally through the immunity of high government officials from criminal prosecution; 2) informally through the mutually assured blackmail and business networks of the powerful; and 3) morally through the emerging social understanding that the rich are above the law and the poor are outside the law.¹⁷ That litigation is politics by other means is well-documented in many advanced democracies, and post-communist politicians are no less agile in using and abusing law and courts to their advantage.

To election-winners in uncertain political environments, the tasks of both consolidating and concentrating their power appear to be a higher priority than delegating real power to the insulated judiciary. To be sure, there may be miscalculations: the rulers and the opposition may overestimate the loyalty of judges; judges may choose to please the opposition when they sense the declining popularity of the incumbent majority, and so on. But the powerful know that they can overcome judicial resistance by attacking or co-opting courts and judges. Judicial crisis in Ukraine undermines the claim that mainstream theories of judicial empowerment make that the dispersal of political power reduces the possibility of attacks on the judiciary because these attacks can be successful only when a large coalition of governing actors undertakes them. To be sure, these theories do not specify how large such coalition should be, what a successful attack would entail, and what the costs of the unsuccessful attack on the courts are – all of these are empirical questions. As we shall see in case of Ukraine, certain political actors were able to attack courts and to interfere in judicial decision-making successfully without making coalitions with rivals.

Interference with Judicial Decision-Making in Ukraine

The crisis of Ukrainian judiciary has to do with the practices of improper influence on judges and courts during the process of handling lawsuits. Both insiders (court chairs and vice-chairs) and outsiders (politicians, government officials, businesspeople, prosecutors, lawyers and mass media) can exercise this influence on judges from the moment of the submission of the lawsuit until the enforcement of judicial decisions. To be sure, finding evidence of improper influence on judges is difficult: politicians and government officials are unlikely to confess that they ordered judges to decide in their favor, businesspeople and lawyers are unlikely to admit that they bribed judges to secure favorable judgments, and judges are not likely to reveal that they had been pressured – all such instances are criminally punishable in Ukraine.¹⁸ Moreover, the losing party may suspect that the judge who had ruled against her was pressured or bought by the winning party. Finally, the media is more likely to report about the allegations of judicial corruption or pressure on courts than about good judicial performance. But they also let judges of all rungs (from Supreme Court to the city-level courts) who feel pressured to complain against this improper pressure in public in order to attract attention of both domestic and international allies.¹⁹ However, because courts are widely distrusted, domestic audience may not believe revelations coming from judges, and, instead, such media stories may help entrench the public perception that judges are pliant.

All of this was true about the judiciary in the pre-Orange Ukraine. Kuchma’s semi-authoritarian regime pressured parts of the judiciary while the private parties easily bribed the underpaid judges.²⁰ However, many experts and judges believe that political fragmentation in the post-Orange Ukraine only worsened the situation: it strengthened external pressure on courts.²¹ Judges openly complain that pressure on them increased in the wake of the Orange Revolution. According to the surveys of some 1,000 judges from eight oblasts of Ukraine conducted in 2007 and 2008, more than a half (57 percent in 2007 and 51 percent in 2008) of those surveyed reported that the level of judicial independence was „unsatisfactory” during 2007 and 2008, respectively, yet slightly less than 40 percent of surveyed felt the same way about the level of judicial independence that existed between 1996 and 2004.²² This should not be surprising: greater jurisdiction of courts to handle politically important disputes should result in greater pressure on courts from key political forces who want to win their cases in courts. The severity of political competition forced politicians to interfere with judicial decision-making. This is because politicians cannot get things done through regular political process – the opposition is too strong. They face virtually no risk of being punished for this clearly illegal behavior as they appoint and fire judges and chief law-enforcement officers. Moreover, the higher the stakes of political game are, the more blatantly politicians abuse the judiciary.

For example, when, in spring 2007, the Ukrainian Constitutional Court began hearing the complaint of the members of Parliament against President Yushchenko’s dissolution of the Parliament, President Yushchenko fired 3 justices of the Court, including Judge-Reporter in that case, and sent his bodyguards to disrupt the hearing of the case. As a result of this attack on the Constitutional Court, Chief Justice Ivan Dombrovskiy resigned citing unprecedented pressure on him.²³ A year-and-a half later, when, judge Volodymyr Keleberda of the Kyiv District Administrative Court suspended Presidential decree dissolving the Parliament of Ukraine in October 2008, President Yushchenko immediately fired judge Keleberda and abolished the Kyiv District Administrative Court.²⁴ Meanwhile, the members of Parliament who belonged to the ruling Bloc of Yulii Tymoshenko physically occupied the court chambers of appellate and cassation judges to disrupt their work in order to prevent the reversal of suspension. At the same time, the Ministry of Internal Affairs publicly announced that there were phone calls among Presidential Secretariat, Judge of the High Administrative Court Mykhailo Tsurkan, and Judge of the Kyiv City Administrative Court Yaroslava Dobryanskaya, and informed President Yushchenko that these phone calls could serve as grounds for criminal investigation. However, no charges were brought against the perpetrators.²⁵ This is because members of Parliament have immunity from criminal prosecution, and vibrant electoral market guarantees that many of these legislators will be re-elected (Ukraine has a party-list proportional electoral system).²⁶ Politicians feel free to pressure, threaten and reward judges in the context of this impunity.

The fact that political branches have significant input in the processes of recruiting and removing judges also encourages power holders to interfere improperly in judicial proceedings. They do not always resort to disrupting judicial proceedings. More often, they pressure the court chair, who, in turn, orders a particular judge to handle the case according to the wishes of the powerful.²⁷ Sometimes, they phone a judge directly and demand the favorable outcome. Indeed, judges from all rungs and parts of the judicial system openly complain about the increase of the „telephone justice” – a practice that existed both in Soviet era and in the pre-Orange Ukraine when the powerful figures phone judges and direct them how to decide cases.²⁸ Judges from local courts in Eastern Ukraine complain that the officials from the Presidential Secretariat phone them;²⁹ judges from courts in Kyiv complain that the members of Parliament and of Kyiv City Council phone them;³⁰ judges from commercial courts complain that the officials from the Cabinet of Ministers phone them;³¹ judges of the High Administrative Court complain that the Acting Prime-Minister „explained” them how to decide complaints against illegal dismissals of the Ministers;³² and justices of the Constitutional Court openly report pressure from key political figures of all ideological stripes.³³

This anecdotal evidence is backed up by the results of the 2007 survey of 1,024 judges and of the 2008 survey of 1,072 judges, both conducted in eight provinces of Ukraine. Seventy-one percent of those surveyed in 2007 said that they knew about the incidences of attempts to influence courts during the trial, as compared to seventy-seven percent surveyed in 2008.³⁴ Who perpetrates this improper influence on judges? To be sure, most judges blame the outsiders, while some blame only ideological opponents of the political masters of certain judges (see Table 1). Increasingly, one could hear that this or that judge favors certain political blocs and that political blocs captured certain judges and courts. This means that the influence of court chairs on judges may be declining, the influence that judicial chiefs do not want to lose. What form does this improper influence take? As Table 2 shows, it often involves threats and „friendly advice”.

Table 1. Who Attempts to Influence Courts Improperly When They Handle Cases? Pick from the list below

Source: Surveys of 1,024 judges (conducted in 2007) and of 1,072 judges (conducted in 2008) in eight oblasts of Ukraine. Monitoring of Judicial Independence in Ukraine. Year 2008, p. 56.

Table 2. What Forms of Influence on Judges Are Used? Pick from the list below

Source: Surveys of 1,024 judges (conducted in 2007) and of 1,072 judges (conducted in 2008) in eight oblasts of Ukraine. Monitoring of Judicial Independence in Ukraine. Year 2008, p.58. Top six answers are shown.

To sum up, contrary to the predictions of the mainstream theories of judicial empowerment, growing political competition in Ukraine appears to entrench improper influence on judges and result to the crisis in the judicial system. Powerful actors do not seem interested in insulating the judiciary either from the rulers or from private sector. When political rivals know that they cannot get things done through regular political process, they turn to courts to overcome the resistance of their rivals. Since the powerful know that they control both the appointment and removal of judges and that the interference with judicial decision-making goes unpunished, they face no incentives not to avoid threatening and co-opting judges. Much of the talk about judicial dependence is directed at judges controlled by the rival political groups. And mutual accusations from all political camps help strengthen public perception that all judges are either biased or dependent.

Conclusion

My argument is not that political fragmentation is bad for judicial empowerment. The argument here is that political competition alone does not automatically result in judicial empowerment. Under certain conditions, more political competition leads to less judicial power and less judicial independence. What are these conditions? Severe political contestation may force rival political groups to secure their electoral victories at all costs. It may force them to use courts to achieve their short-term power-maximization goals. In this context, leaving the courts alone and insulating them from politics would be considered as a sign of weakness. High stakes of political game offer few incentives to the rival groups to delegate the power to judges while offer much more incentives to attract judges on their side. Judicial decisions provide a cover of legality and legitimacy for the political opponents. In Ukraine, the risk of being punished for such attraction is very low since the proportional electoral system virtually guarantees three or four major parties to be always represented in Parliament and since the political branches control judicial careers. The risk for judges of being penalized for engaging in illegal judicial decisions is also low especially when considered against the benefits such behavior brings. Since all political blocs and all government institutions engage in this behavior, it makes no sense for them to seriously fight against corruption and against improper influence on the courts because they may fall victims of this fight. Therefore, they accumulate compromising materials on rivals and their cronies until the right moment. However, judges themselves have been unable to convince the public that they are there to serve the needs of a broader society. This only confirms to the public that all politicians are the same, and that judges are there to help politicians rather than to hold them to account. In this context, both practice and public perception of heightened political fragmentation in today’s Ukraine paralyzes judicial system.

ALEXEI TROCHEV - Jerome Hall Fellow, Maurer School of Law, Indiana University.

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