Anti-Corruption Transformation Processes in the Conditions of the Judicial Reform in Ukraine Implementation

This article analyses the anti-corruption transformative processes triggered by Ukraine’s judicial reform. The subject of the study is the determination of the critical aspects of the success of anti-corruption transformative measures conditioned by the anti-corruption reform in Ukraine. The objectives of the article are to determine the main anti-corruption challenges facing the Ukrainian judicial system and to characterise the main legislative countermeasures. The authors emphasise that a properly functioning system of courts supports the realisation of many development goals – by protecting human rights, resolving social conflicts, and implementing government policy. However, today the judiciary in Ukraine still needs to meet these principles. One of the crucial aspects of judicial reform in Ukraine is undoubtedly the overcoming of corruption, which significantly distorts the independence of judges and the principle of equality. The article is structured as follows: current challenges of the Ukrainian judiciary: corruption and judicial independence (1); the essence of the primary measures of judicial reform (2); the role of the Constitutional Court of Ukraine in curbing anti-corruption measures of judicial reform (3) and the creation of the Higher Anti-Corruption Court as an anti-*


INTRODUCTION
Courts exist to meet human needs.A person who comes to Court is not a lawyer and should not be one; he does not come for luxury or boredom or an excursion.A person is looking for justice; he wants to restore his violated right with the help of the state judicial mechanism.As an institution that provides judicial services, the judicial system should be simple and accessible to the average citizen, and court procedures should be simple and understandable even for non-lawyers.A properly functioning court system supports implementing many development goals -protecting human rights, resolving social conflicts, and implementing state policy.In addition, substantial academic literature argues that courts are essential in promoting economic growth, primarily by protecting property rights. 1 However, today the judiciary in Ukraine does not meet these principles.In addition, justice is a sphere of state activity and social life in which the idea of the Rule of Law is most vividly embodied.Access to justice involves the legal consolidation and direct functioning of guarantees provided by Law, which allow everyone to freely exercise their right to judicial protection and restoration of the violated right. 2 A person should receive justice services as quickly, transparently, qualitatively, and efficiently as possible.However, such justice remains only a dream, which reduces the availability of justice as the constitutional and legal basis of the judicial power of Ukraine. 3 Because of the factors mentioned above, judicial reform becomes essential for forming an independent, impartial judiciary that ensure the implementation of the principles of the Rule of Law (the Rule of Law, legality, and equality).

CURRENT CHALLENGES OF THE UKRAINIAN JUDICIARY: CORRUPTION AND JUDICIAL DEPENDENCY
In judicial reform, special attention should be paid to ensuring the impossibility of corruption, as corruption acts as a destructive factor in building a democratic society. 4 general, the problem of corruption in the judicial system is a typical phenomenon in developing countries.For their functioning, such corruption causes more damage than any other factor because even the assumption that the judiciary is corrupt raises broad doubts about the success of anti-corruption activities and the effectiveness of  corruption component of judicial reform.The authors formulated two critical factors for the success of judicial reform.The first factor is the presence of political will and coordinated cooperation between the President of Ukraine and the Verkhovna Rada of Ukraine.The second factor is the active participation of the public in initiating and controlling the implementation of reform measures.Reznik et al.
International Journal for Court Administration DOI: 10.36745/ijca.400legal protection through judicial means. 5Such a situation is unacceptable because, under the conditions of operation of the checks and balances system, judicial power is an essential element in ensuring the protection of human and citizen rights, legality, and the Rule of Law.The "rusting" of the judiciary, caused by corruption, inevitably led to the levelling of the original constitutional prescriptions regarding the essence of our state, namely Art. 1 of the Constitution of Ukraine.According to Art.1, Ukraine is a sovereign and independent, democratic, social, legal state, upholding fundamental human and citizen rights and freedoms.For example, all people are free and equal in their dignity and of the Constitution of Ukraine); citizens have equal constitutional rights and freedoms and are equal before the Law.
Moreover, there can be no privileges or restrictions based on race or skin colour, political or religious beliefs, gender, ethnic and social origin, property status, place of residence, language, or other characteristics (Art.24 of the Constitution of Ukraine). 6 is essential that judges, given their special status, belong to specific subjects of criminal responsibility.Their rights and obligations are determined by a separate Law of Ukraine, "On the Judicial System and the Status of Judges": only a person who meets the established requirements of the Law is appointed to the position of the judge; most of the measures to ensure criminal proceedings cannot be applied to them, but the provided features are typical for consideration of criminal cases in which judges are suspects.Given the above, corruption in the judicial system has a significant negative impact on the approval and implementation of the constitutional provision on the Rule of Law in Ukraine, generates legal nihilism, violates legality, and destroys the legal system of the state. 7If the judiciary is corrupt, it promotes corruption in other government sectors and conveys to the general public that corruption is acceptable. 8 The analysis of the current situation allows us to identify the main obstacles in combating corruption in the field under study: 1) lack of a general understanding of the current problems of the judiciary, which affect the establishment of fair justice in the country and cause corruption; 2) ambiguity and lack of unified, agreed steps for further judicial reform and solving current problems. 9 The authors consider it necessary to highlight the study of these obstacles.They are convinced that corruption in the judicial system not only undermines the credibility of courts as fighters against corruption but also destroys confidence in the independence of courts, harming the entire core of judicial functions. 10The independence of judges as a primary basis for the administration of justice is enshrined in the Basic Principles of 12 Following the Constitution of Ukraine (Art.129), a judge, while administering justice, is independent and guided by the Rule of Law. 13The concept of independence is specified in the relevant Law of Ukraine, "On the Judiciary and the Status of the Judges" (Art.48).It stipulates that a judge in his activities related to the administration of justice is independent of any illegal influence, pressure, or interference. 14e blatant disregard for the constitutional principle of independence of courts and judges is at the heart of corruption in the judicial system.Additionally, their freedom should be manifested in everything: independence from external influence during the evaluation of evidence, listening to parties, and autonomy in decision-making.At the same time, freedom must be internal, from the side of other judges or the head of the Court as well as being external (from the influence of third parties).It is worth noting that the corrupt impact on the independence of a judge is not only the provision of bribes in the usual "material format" but also a request, offer, promise, service, or any other benefit of an intangible nature.It is worth emphasising that the corruption of the judiciary promotes corruption in different sectors of Government and sends a message to the public that corruption is acceptable. 15 Silen emphasises that the need to form an independent court is especially felt in former communist countries, where awareness of the importance of the independence of an individual judge is growing.16 The legality of the formation of the judicial corps is of particular significance.This specific characteristic comes from the public's understanding of how the justice system is organised and the absence of assumptions about the possibility of bad faith in evaluating judicial candidates.At the same time, justice system employees must also have specific moral abilities and particular behaviour in addition to legal guarantees of professionalism.demonstrates that the judiciary, independent of corruption, plays a significant role in forming and strengthening democratic regimes.17 In addition, a negative trend of increasing undue influence on judges is noted, which is presented schematically.

Picture 1. Number of reports of interference with the judge's activities
In 2018, 187 reports of interference in the activities of a judge were registered in the Unified Register of Pretrial Investigations in 2019 -335 and 2020 -371. 18Moreover, violation of a judge's independence is characterised by high latency.Ukrainian courts generally maintain a negative balance of trust-distrust in society: 14% of the population trust the courts, while 75% do not (the ratio is 61%).Simultaneously, compared to 2015, the trust-distrust balance slightly improved positively (equal to 72%).This is evidenced by a survey conducted by the sociological service of the Razumkov Center and the "Democratic Initiatives" Foundation named after Ilka Kucheriva, commissioned by the Center for Political and Legal Reforms. 19e of the biggest problems of modern Ukraine is the presence of deep-rooted contempt for the Court in the minds of citizens.Public trust or faith in the courts used to be taken for granted.However, the decline of trust in state institutions riddled with corruption, including courts, is a characteristic feature of most democratic societies; Ukraine is no exception. 20 solve this problem, it is essential to take moral and educational measures, reformatting the legal culture of citizens and adopting coercive measures corresponding to the degree of intervention and the importance of justice for the state. of Judges is also awaiting renewal.Still, it is unknown when such reformatting will finally occur and whether the experience of independent competitive procedures will be considered. 22 general, the critical problems in the implementation of judicial reform are: 1. low trust in the judiciary mainly due to corruption, dishonest behaviour of many judges, dependence and patronage;

THE ESSENCE OF THE MAIN MEASURES OF JUDICIAL REFORM IN THE CONTEXT OF ANTI-CORRUPTION PREVENTION
After the collapse of the Soviet Union, the Ukrainian authorities faced an important task -creating a democratic, legal, and objective judicial branch of Government.
The first basic steps towards creating such a judicial power were laid in 1996 with the adoption of the Constitution of Ukraine.After all, according to the Constitution of Ukraine, our country is governed by the rule of Law (Art.In addition, the creation of a qualitatively new judicial system was quite a difficult task, as it required a renewal of the attitude of the judges themselves and the population towards justice.It is important to note that with the fall of communism, judges did not undergo any lustration, which allowed oligarchs and politicians to seize judicial power and use it to their advantage.On the eve of the Revolution of Dignity, the level of trust in the courts in Ukraine was 7%, one of the lowest in the world and the weakest in Europe. 24dicial reform began in 2016 and has become the largest in the history of independent Ukraine.It included amendments to the Constitution and the establishment of several new institutions.The reform aimed to ensure the judiciary's independence, confidence, and public accountability. The main novelties of judicial reform were: the adopted amendments to the Constitution of Ukraine, among other things, provide for the abolition of the institution of "appointment of a judge to a position for the first time" and the provision that judges will hold office indefinitely; raising the age and professional qualifications for candidates for the position of a judge; establishment of a new procedure for the formation of the High Council of Justice, according to which the majority of its members will be judges elected by judges; establishing the process according to which courts will be formed and liquidated by Law; narrowing the limits of the judge's immunity from absolute to functional; laying the groundwork for the renewal of the judiciary, etc.  Commission of Prosecutors. 30Many issues previously determined by Law have been submitted to the Prosecutor General of Ukraine for regulation.The functions of selection, certification and disciplinary powers have been transferred to the personnel commissions set up by the Prosecutor General of Ukraine (in practice, they consist equally of prosecutors and civil society).On the other hand, the Law gave an impetus to clean the prosecutor's office of dishonest staff, which, unlike the courts, has positive trends (for example, only 45% of employees of the General Prosecutor's Office of Ukraine and 68% of regional prosecutors passed certification). 31This gives hope for modernising the prosecutor's office in the next one or two years, although this body's lack of institutional capacity to remain independent remains. 32 our opinion, most of the judicial reform measures are fragmentary, inconsistent, and sometimes even contradictory.A perennial problem of Ukrainian legislation is a "well-written" material law that does not have a procedural order or deadlines for implementation, responsible authorities or persons, and means of control.
Undoubtedly, the judicial reform in Ukraine has indeed brought specific positive changes; at the same time, we are convinced that they are not of severe systemic nature and have not significantly affected the reduction of corruption in Ukraine.In analysing anti-corruption measures during the implementation of judicial reform, we would like to focus particular attention on how these anti-corruption novelties are implemented by individual judicial bodies, namely the Constitutional Court of Ukraine and the High Anti-Corruption Court.

THE ROLE OF THE CONSTITUTIONAL COURT OF UKRAINE IN INHIBITING ANTI-CORRUPTION MEASURES OF JUDICIAL REFORM AS DISCREDITING THE INDEPENDENCE OF THE JUDICIARY
State power in states governed by the Rule of Law is exercised based on its division into legislative, executive, and judicial (Art.6 of the Constitution of Ukraine).All branches of Government are equal and exist side by side to provide checks and balances to one another.The cooperation of all departments of Government is crucial to ensure the proper level of functioning of all state institutions, the implementation of legal reforms and the implementation of Ukraine's chosen pro-European course.An imbalance in the equality of the branches of power can lead to its usurpation of power as a whole and the implementation of various types of illegal actions.Among judicial bodies, the Constitutional Court of Ukraine itself should be the last line of defence to protect our rights and ensure the functioning of our democracy.Very often, it is done the other way around. 33The Constitutional Court of Ukraine is the flagship that must defend the legal principles of independence and the Rule of Law; besides, this body proved to be The Supreme Anti-Corruption Court is a permanent higher specialised court in the judicial system of Ukraine, acting as a legal entity with a seal with the image of the State Emblem of Ukraine and its name.The Supreme Anti-Corruption Court manages state-owned property belonging to its sphere of management.The task of the High Anti-Corruption Court is to administer justice following the principles and procedures of justice provided by Law to protect individuals, society, and the state from corruption and related criminal offences and judicial control over the pre-trial investigation of these criminal offences in criminal proceedings, as well as resolving the issue of recognising unfounded assets and their recovery in state revenue in cases provided by Law, in civil proceedings. 48The anti-corruption Court should be the last link in the chain of newly created anti-corruption bodies that will ensure the inevitable punishment of corrupt officials.Only the certainty of punishment and appropriate sanctions for violating criminal Law will reduce corruption in Ukraine, resulting in a reduction of corruption in the public sector, which, in turn, will lead to the growth of the real sector of the economy. 49

CONCLUSIONS
Summing up the above, we emphasise that implementing real, not declarative, judicial reform is essential for Ukraine.Ukraine's desire to become a genuinely democratic and legal state requires decisive institutional, organisational, qualification and personnel changes.The powerful component of judicial reform is the fight against corruption and, therefore, the building of an independent judiciary.It should be noted that both judicial and anti-corruption reforms are separate institutional processes that take place in parallel.And if the anti-corruption reform concerns many aspects, and has many forms and manifestations, then the reform of the judiciary is aimed at transforming judicial institutions.These transformations relate to the process of selection, the appointment of judges, distribution of court cases, material support of courts and court staff, the process of rendering and appealing decisions, and the process of bringing judges to disciplinary responsibility, judicial self-government, etc.
Additionally, combating corruption in courts is only one aspect of judicial reform.
Therefore, certain forms of Contempt of Court should be criminalised.Contempt of Court should be recognised as a criminally illegal act, which will be expressed in those actions or inactions that may pose a significant public danger to the Court because they are accompanied by extreme cynicism, leading to systematic non-execution of court decisions and violation of court order.The importance of judiciary independence is so significant that the Ukrainian legislator provides for criminal prosecution for the intervention and activities of judicial authorities (Art.376 of the Criminal Code of Ukraine).Interference in the activities of judicial bodies is influence on the judge in any form: request, demand, instruction, threat, bribery, violence, criticism of the judge in the media before the decision of the case in connection with its consideration, etc., carried out to prevent the judge from performing his official duties or force him to make an unfair decision.21Reznik et al.International Journal for Court Administration DOI: 10.36745/ijca.400Another significant obstacle to corruption overcoming in the judicial system is the incompleteness of judicial reform.The analysis of Transparency International's recommendations for Ukraine shows a negative trend of annual non-fulfilment of one condition -the formation of an independent and professional judiciary.This recommendation, as emphasised by Transparency International experts, is extremely high priority.Besides, there have been no actual changes over the years of judicial reform.Even though people's deputies adopted the first Law of the President in 2019, the Constitutional Court of Ukraine recognised the main provisions of this Law as unconstitutional.The President of Ukraine initiated the next attempt to implement the reform through draft law 3711 on amendments to the Law of Ukraine "On the Judiciary and the Status of the Judges" and some laws of Ukraine regarding the activities of the Supreme Court and judicial governance authorities.However, it has been criticised by the Venice Commission and the expert community and is awaiting a conclusion and a second reading.The virtuous composition of the High Council of Justice, chosen with the participation of the international community and public experts, remains a valid requirement of the International Monetary Fund, a recommendation of the Venice Commission and the public.However, this did not affect the steps to restart this body.The composition of the High Qualification Commission 3 of the Constitution of Ukraine), where the principle of the Rule of Law applies (Art.8 of the Constitution of Ukraine).Justice in Ukraine is administered exclusively by courts.Delegation of court functions and the appropriation of these functions by other bodies or officials are not allowed.The jurisdiction of the courts extends to any legal dispute and criminal prosecution.In cases provided for by Law, courts consider other issues as well.The people directly participate in the administration of justice through the jury (Art.129 of the Constitution of Ukraine). 25 Amendments have been made to the Law of Ukraine "on the Judiciary and the Status of Judges": transition to a three-tier court system: local courts, appellate courts, and the Supreme Court.Establish a new Supreme Court by liquidating the Supreme Court of Ukraine, which will consider cases as a court of cassation, and in cases provided by procedural Law -as a court of first and appellate instance.The Supreme Court will consist of no more than 200 judges.This Court will have the Grand Chamber, the Administrative Court of Cassation, the Commercial Court of Cassation, the Criminal Court of Cassation, and the Civil Court of Cassation.The Supreme Court shall be constituted within six months from the date of entry into force of the Law.It shall begin its work Reznik et al.International Journal for Court Administration DOI: 10.36745/ijca.400subject to the appointment of at least sixty-five judges, termination of activity and liquidation of higher specialised courts from the date of the beginning of work of the Supreme Court in a new composition.The next step is the establishment of new higher specialised courts in the judiciary: the High Court of Intellectual Property and the High Anti-Corruption Court, which will act as courts of the first instance to hear statutory categories of cases, introduce new mechanisms to encourage the fair conduct of judges with the involvement of the public.In particular, to assist the High Qualifications Commission of Judges of Ukraine in establishing the compliance of a judge (candidate for the position of a judge) with the criteria of professional ethics and integrity, a Public Integrity Council is formed; consolidation of the duty of a judge (candidate for the position of a judge) to submit, in particular, a declaration of family ties, a declaration of integrity; introduction of open competitions for the part of judges of appellate, higher specialised courts and the Supreme Court with admission to them of persons who do not have judicial experience; redistribution of powers between the High Qualifications Commission of Judges of Ukraine and the High Council of Justice. 26Unfortunately, de jure Law provides for practical measures in Ukraine, while de facto, they are either openly ignored or reluctant to be implemented.The achievements in judicial reform include the launch of the Supreme Anti-Corruption Court of Ukraine (since September 2019). 27Another important initiative of the previous Government is that the courts are gradually being taken over by the Judicial Protection Service, a new militarised service in the judiciary (previously, court protection was the responsibility of the Ministry of Internal Affairs of Ukraine). 28The human rights environment welcomes the preliminary approval of amendments to the Constitution of Ukraine regarding waiving the lawyer's monopoly on court representation (introduced gradually in 2017). 29However, this does not mean a final abandonment of it, as the relevant provisions are implemented in the procedural codes.NGOs support the Government's initiatives to introduce a classical jury trial and develop alternative dispute resolution, including mediation and arbitration.There has been progressing in enforcing court decisions by ending corrupt practices blocking enforcement proceedings.Significant changes in legal education can exhibit this: the evaluation of entrants to the master's degree is based on the technology of external independent evaluation, the results of which depend on the training funding.However, a vast state order is still received by specialised educational institutions in the system of militarised executive bodies, which do not provide adequate training for lawyers.Changes in the prosecutor's office are perceived ambiguously.On the one hand, experts criticise the excessive concentration of executive powers in the hands of the new Prosecutor General.Thus, the Law, from September 19, 2019, to September 2021, suspended the activities of the Qualification and Disciplinary Reznik et al.International Journal for Court Administration DOI: 10.36745/ijca.400 should be no undue or unauthorised interference with the process of justice, and judicial decisions made by judges are not subject to review.This principle does not preclude due process of law judicial review or commutation of sentences handed down by judicial authorities.11Atthe same time, Recommendation CM/Rec (2010) 12 of the Committee of Ministers of the Council of Europe to member states regarding judges: independence, efficiency and duties (adopted by the Committee of Ministers of the Council of Europe on November 17, 2010, at the 1098th meeting of deputy ministers) establish that the independence of judges and the judiciary powers should be guaranteed by the Constitution or fixed at the highest legal level of the member states.More specific norms should be established at the legislative level.
The above Reznik et al.
Reznik et al.International Journal for Court Administration DOI: 10.36745/ijca.400systemforcombating corruption.47Then,as already noted, the establishment of the Supreme Anti-Corruption Court was provided by the Law of Ukraine "On the Judiciary and the Status of Judges".Based on these documents, on June 7, 2018, the Law of Ukraine, "On the Supreme Anti-Corruption Court", entered into force.Given that the organisational, functional, and other features of this Court were enshrined in a separate piece of legislation, in our opinion, this is evidence of the priority of the High Anti-Corruption Court over the High Court of Intellectual Property.After all, the peculiarities of the latter's activity are contained only in the relevant Law of Ukraine, "On the Judiciary and the Status of Courts".
It is a separate but essential step.The importance of combating corruption for ensuring 47 O. Kosytsia, Organizational and legal grounds for the establishment of an anticorruption court in Ukraine.Judicial and investigative practice in Ukraine Vol. 4. pp.6-10.(2017).(in Ukrainian).48 Law of Ukraine On the Supreme Anti-Corruption Court № 2447-VIII of June 7, 2018 Official Gazette of Ukraine 48 16.Art.1656 (2018).(in Ukrainian).