Ukraine's Judiciary After Euromaidan: Continuity and Change

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Volume 25, Issue 2, Fall
Comparative Politics Newsletter
The Organized Section in Comparative Politics of the American Political Science Association
Editors: Matt Golder (mgolder@psu.edu), Sona N. Golder (sgolder@psu.edu)
Editorial Assistant: Charles Crabtree
Editorial Board: Molly Ariotti, Xun Cao, Elizabeth C. Carlson, Yaoyao Dai, Amanda Fidalgo, Vineeta Yadav, Joseph Wright
Contents
Letter from the Editors by Matt Golder and Sona N. Golder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 1
I. Symposium: Training the Next Generation of Comparative Politics Scholars
Faculty-student Research Collaboration as a Training Tool by James F. Adams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . .5 Redefining the Relationship with the Field by Kanchan Chandra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 7 Training for Both Skills and Substance by Barbara Geddes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 9 The Fallacy of Multiple Methods by Scott Gehlbach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Balancing Trade-offs and Leveraging Experience by Gretchen Helmke and G. Bingham Powell, Jr. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Improving Graduate Education through the Undergraduate Curriculum by Jeffrey K. Staton . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Training Graduate Students in Comparative Politics by Leonard Wantchekon . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Qualitative and Archival Methods by Elisabeth Jean Wood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 24
II. Special Topic: Ukraine and Comparative Politics
Russia’s War in Ukraine and Putin’s Propaganda State by Mark R. Beissinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 26 Election Integrity in Ukraine: A Comparative Perspective by Erik S. Herron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 29 Ukraine’s Judiciary after Euromaidan by Maria Popova . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . 32
Attitudinal Geography in Post-Euromaidan Ukraine by Oxana Shevel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 36
III. Data Set
Archigos: A Database on Political Leaders by Hein Goemans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 39
IV. Other
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 41
Announcements and Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Ukraine’s Judiciary after Euromaidan: Continuity and Change
by Maria Popova
McGill University

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The lack of rule of law was one of Euromaidan’s top grievances. A greater proportion of Maidan-goers cared about
outcomes that required strong and independent courts than cared about the signing of the EU Association Agreement
that initially triggered the protest. Over 80% demanded the release of arrested protesters by the courts; over 60%
wanted to see a credible criminal investigation by the prosecution and the courts into police brutality; and an
increasingly large proportion (47% in December 2013 and 62% in February 2014) came to
Maidan to call for the prosecution of corrupt politicians. By contrast, the share of those supporting the EU
Association Agreement dropped from 71% in early December 2013 to under 50% in February 2014 (Popova and
Shevel, 2014; Popova, 2014b).
Add to this strong popular mandate for judicial reform the dramatic post-Maidan shifts in the political system.
Former president Yanukovych and many of his allies literally exited Ukrainian politics. Ukraine’s best organized
party, the Party of Regions, collapsed, while other political elites reorganized into new alliances. Preterm
presidential and parliamentary elections significantly redrew Ukraine’s electoral map and catapulted a brand new
party (Samopomich) into the governing coalition. The country lost its territorial integrity as Crimea was lost to
Russian annexation in March, and later in the spring, Russian meddling in Donbas, a region in Eastern Ukraine,
triggered an insurgency and, eventually, civil war.
How have post-Maidan’s tectonic political changes affected the Ukrainian judiciary, which has traditionally
been politically dependent and corruption-plagued? Has popular demand for the rule of law put the Ukrainian courts
on a trajectory towards greater transparency and political independence? Have the new political incumbents sought
to reduce corruption and/or increase the institutional and decision-making independence of the judiciary? Is there a
reform-minded constituency within the Ukrainian judiciary that pushes for radical change and the political
emancipation of the courts? What are the implications of the post-Maidan development of the Ukrainian courts for
the comparative judicial politics literature?
Societal demand for better courts continues to be strong. In fact, reforming the judiciary has been a highly salient
issue in Ukraine, even as the conflict in Donbas remains unsolved and economic problems pile up. A survey
conducted by the Center of Policy and Legal Reform (2015) in December 2014 indicates that 91% of respondents
think judicial reform “is needed”; in fact, 46% consider it to be “one of the most urgent tasks” for Ukraine today,
and 81% would support “radical” or “serious” reforms.
Other evidence of civil society’s focus on the courts comes from the Lustration Committee, an NGO that in
March 2014 started collecting evidence of abuse of office and wrongdoing by state officials. The Lustration
Committee solicited citizen complaints, which it then channeled to the state commission authorized to pursue
lustration, i.e. the removal of state officials who had violated citizens’ rights before or during Euromaidan. The
Lustration Committee received close to 3,000 complaints between mid-March and October 2014. A simple count
of the subject of the complaints shows that Ukrainians complained first and foremost about judges: almost half
(47%) of all complaints were against judges. Judges were the subject of twice as many complaints as legislators,
municipal officials, and state bureaucrats combined (Popova, 2014a).
Despite this strong demand for radical change in the judiciary, neither the new incumbents nor the judiciary
itself have made substantial strides towards the establishment of politically independent and corruptionfree courts.
Instead of consistently implementing wideranging and principled judicial lustration, the new political incumbents
have slowly purged the top echelons of the judiciary and replaced them with loyalists. They have eschewed calls by
the Council of Europe’s Venice Commission and civil society to adopt legislative changes that would create the
institutional basis for an independent judiciary.

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Since May 2014, pro-presidential forces have overcome pushback from entrenched judicial elites and have
slowly gained control over judicial governance institutions — the High Qualification Commission for Judges
(HQCJ), the High Council of Justice (HCJ), and the
Council of Judges. For example, the new chair of the HQCJ is not a judge, but a commercial lawyer, active in the
same association from whose ranks Poroshenko, the current Ukrainian president, had selected his administration’s
point man for the judiciary. In an introductory interview, the new appointee was upfront both about his close ties to
the Presidential Administration and regular judges’ resentment that an outsider had been
appointedtoleadoneofthejudiciary’smostpowerfulinstitutions (Satchenko, 2015). The other judicial governance
organ, the High Council of Justice (HCJ), was paralyzed throughout 2014 as Yanukovych-era elites fought to retain
their positions. By the spring of 2015, however, the stalemate at the HCJ was broken. The majority of the newly-
elected members of the council are widely seen as loyal to the Presidential Administration, either because they have
long-standing ties to Poroshenko or because they have more recently pledged their allegiance to him.1
In sum, 18 months post-Maidan, one of Maidan’s main goals — the creation of an
independent and clean judiciary — remains elusive.
Civil society groups, such as the Reanimation Package of Reforms (RPR), an umbrella organization of more
than 100 NGOs, continue to focus on judicial reform and push for combining personnel turnover with legislative
changes to grant greater institutional independence to the judiciary. The RPR proposals closely followed long-
standing recommendations by the Council of Europe’s Venice Commission. After the parliamentary elections, these
NGOs gained veritable political power when some of their activists were elected to the Rada, the Ukrainian
Parliament, on the Samopomich party list. Oksana Syroyid, a civil society expert on judicial reforms with fifteen
years of experience in promoting judicial emancipation, became the deputy speaker of the Rada. The civil society
groups cooperated with MPs and the Minister of Justice, and in December 2014 submitted a judicial reform bill.
Just a few days later, the Presidential Administration submitted a competing judicial reform bill drafted by the
Council on Judicial Reform, a body that is attached to the Presidential Administration.
DeputyRadaspeakerSyroyidpublicallycomplainedthat the Presidential Administration had humiliated her by
keeping their work on the competing judicial reform bill secret from the Rada and then introducing it just as the
Rada bill was heading to a vote (Ukr, 2015a). The ensuing negotiations between the MPs and the Presidential
Administration produced a watered-down compromise bill, which was eventually adopted by the Rada in February
2015. Through the new law, the President retains many of his levers of influence over the judiciary, such as his
formal participation in the appointment procedure for all judges. The law also introduces qualification categories
for judges, which is a step back rather than forward for institutional independence. The assignment of qualification
categories can easily become a tool for rewarding loyal judges and punishing disloyal ones.
The judiciary also seems to lack an internal constituency for radical reform. The court chair elections of April-
May 2014 illustrate this deficiency. Court chairs are powerful actors in post-Soviet judiciaries. By controlling the
distribution of cases, salary bonuses, and often apartments to fellow judges who need one, court chairs have
significant leverage over their colleagues. They also play an important role in judicial careers by participating in
hiring, discipline, and promotion. Court chairs had previously been appointed to five-year terms, either by the
president or by one of the judicial selfgovernment institutions. In the spring of 2014, one of the first (and most
radical) judicial reform steps of the post-Maidan Rada majority was to give the judges on each court the power to
1
In a Ukrainska Pravda journalist’s words: “Адже б ільшість із них не можна віднести до політично незаангажованих правників із
незаплямованою репутацією (Indeed, most of them cannot be counted as politically unbiased jurists with spotless reputations.)” (Shutko,
2015).

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elect their chair in a secret ballot. The 728 courts that Ukraine was left with after Crimea’s annexation and the start
of the insurgency in parts of Donbas held elections in April and May 2014.
In the fall of 2014, a team of research assistants in Ukraine helped me collect comprehensive data on these
judicial elections. The data set that we compiled contains information on court characteristics, incumbent chair
characteristics, and the outcome of the judicial election. The court variables include: (i) the level of the court —
district, appellate, high; (ii) the type of court — general, administrative, economic; (iii) the region where the court
is located; and (iv) the size of the court, measured by the number of judges serving on it. The chair variables include:
(i) the time since the individual was first appointed as a judge on the court; (ii) the time since the individual was last
appointed chair of the court; (iii) the chair’s gender; (iv) a nd a dichotomous variable that captures whether the
mandate that they served in April 2014 was the first mandate as chair of this court or whether they have held previous
mandates as well.
Preliminary analysis of the data shows that the judicial rank-and-file did not use the direct election to bring
about major change in the courts. On the contrary, leadership continuity and retention were the norm across the
judicial hierarchy and across the country’s regions. Overall, over 80% of court chairs retained their positions. Figure
1 on the next page shows retention rates across types of courts, levels of courts, region, and chair characteristics. It
may seem from this that administrative and economic courts, as well as higher courts, had lower chair re-election
rates. However, regression analysis suggests that these differences are simply due to the larger size of those courts
— the larger the court, the greater the number of potential competitors for the chair position. It is particularly
interesting to see that re-election rates did not differ across Ukraine’s regions. This finding suggests that judges in
the west and center, where support for Maidan’s causes was overwhelming, were just as reluctant to support radical
change within the judiciary as the preservation of this lowest rung of the judicial leadership suggests that an internal
cleanup of corrupt judges is unlikely to take place. It is hard to believe that re-elected old chairs who had overseen
the mechanisms of judicial corruption would suddenly start uprooting entrenched practices. Indeed, according to
information given to me by the Supreme Council of Justice, only 167 judges left the bench between April and
November 2014. While this number is higher than in previous years, it hardly points to an internal clean-up of the
7,000-strong judiciary from endemic corruption.
Figure 1: Court Chair Re-election Rates in 2014

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In sum, 18 months post-Maidan, one of Maidan’s main goals — the creation of an independent and clean
judiciary — remains elusive. The Ukrainian judiciary remains both de jure and de facto dependent on incumbent
politicians. Despite pressure from civil society and some judicial independence champions in the Rada, the
Presidential Administration has managed to establish control over the courts and the new judicial leaders have
flocked to it and pledged allegiance. It should hardly be surprising then that popular trust in the judiciary has plunged
even below Yanukovych-era levels and that ordinary judges feel less independent from politicians than ever. A
survey from Center of Policy and Legal Reform (2015) shows that only 9% of respondents trust the courts, compared
to 40% trust in the President and the Army, and ≈30% trust in the Rada and the government. 80% think judges are
dependent on politicians and/or oligarchs. Another 2015 survey by the same organization shows that less than ten
percent of judges believe that the Ukrainian judiciary is independent, and even more damningly for the current
government, 46% of judges believe that political pressure on judges today is just as strong as under Yanukovych,
while 29% of them believe that political pressure has increased under the current president, Poroshenko!
What are the implications of Ukraine’s post-Maidan judicial development for the comparative judicial politics
literature? First, the Ukrainian case has been problematic for theories that attribute the emergence of independent
courts to electoral turnover (Ramseyer, 1994; Stephenson, 2003; Ginsburg, 2003) or political fragmentation (Bill
Chavez, 2004; Magalhaes, 1999). Although Ukraine’s post-Soviet politics have been characterized by both high
electoral turnover — only one of Ukraine’s four presidents has won re-election — and high fragmentation (Herron,
2002; Way, 2005; D’Anieri, 2007), judicial independence has been very low (Popova, 2010, 2012). That
Yanukovych increased abuse of the courts’ independence during Euromaidan further undermines the argument that
politicians are likely to create independent courts in situations where they fear losing office (Popova, 2012). Instead,
Yanukovych’s behavior bolsters my theory that weak incumbents lean on the courts more strongly than ever in a
bid to preserve their power (Popova, 2012). Poroshenko is probably too early in his term to think about losing
power, but he does face a fragmented parliament and a precarious government coalition. These divisions, though,
have not turned him into a champion of independent courts.
A second, perhaps even more important, message is that a strong demand for the rule of law, once thought to be
an important prerequisite for the political emancipation of post-Communist courts (Hendley, 1999), is woefully
insufficient. Despite strong evidence that the Ukrainian electorate favors radical judicial reforms, politicians have
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not responded by providing them; instead, they have sought to harness the powers of the politically subservient and
corrupt courts.
Finally, the inertia of the Ukrainian judiciary in the post-Maidan period bolsters theories that emphasize judges’
professional orientation over the strategic incentives created by different levels of political competition. Different
judiciaries have different dominant conceptions of their professional role. Some emphasize deference to both
judicial and political elites, while others prioritize judicial self-government, assertiveness, and high autonomy for
individual judges from their superiors. Deferent judiciaries are less likely to produce decisions that challenge and
override the interests of powerful political actors. Judiciaries with professional orientations that emphasize
hierarchical control within the judiciary are also less likely to be politically independent (Widner, 1999; Scheppele,
2006; Hilbink, 2012; Kapiszewski, 2012). Over the past year and a half, the Ukrainian judiciary, long characterized
by low internal dependence and deference to politicians, has proven to be impervious to civil society pressure for
radical change and has instead sought to preserve the status quo.
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a@apsanet.org