Chairman of the DEJURE Foundation: Rule of law, anti-corruption reforms and democracy building under missiles flying in Ukraine

Brian Bonner: Welcome out there, everybody. This is Brian Bonner, the host for Ukraine Calling on Hromadske Radio, coming to you from our beautiful studio in downtown Kyiv, on Main Khreschatyk Street. We have an interesting topic today. Every country needs the rule of law and justice, to ensure that it has an independent judiciary that punishes the guilty, protects the innocent, and delivers justice in a fair and equitable way.

Unfortunately, we haven’t had that for most of our existence as an independent nation in Ukraine. We’ve had something that my next guest likened to a criminal syndicate, more like the Sopranos, up until things started moving after the Euromaidan Revolution, and Viktor Yanukovych fled to his Russian patrons. So, in the studio, Mykhailo Zhernakov, one of the leading experts on judicial reform in Ukraine.

Mykhailo Zhernakov: Thank you, Brian. Very happy to be here.

Brian Bonner: We have a lot to talk about today. You are, of course, the co-founder and chair of the DEJURE Foundation: Democracy, Justice, Reform.

Mykhailo Zhernakov: That’s the acronym. That’s where it comes from.

Brian Bonner: And he was a former judge himself in Vinnytsia District Court for three years.

Mykhailo Zhernakov: Yes, that’s also true. For three or four years.

The state of judicial reforms in Ukraine

Brian Bonner: His importance to our judicial reform efforts is clear. And that’s never been made more so than the recent visit this week by U.S. Secretary of State Anthony Blinken. Mykhailo was one of the three civil society members chosen for a meeting with the Secretary of State. The others are Hanna Hopko and Vitaly Shabunin.

You likened it to a criminal syndicate only four years ago. Have we come a long way since then?

Mykhailo Zhernakov: Well, we definitely did make steps, that’s for sure. The EU integration process helped and is still helping, even though there are things that the EU might do differently to make it even better. But also, of course, it wouldn’t be possible without the help of international partners, including the U.S., the EU, and the G7 countries.

Ninety-five percent of what we have achieved so far in the rule of law and anti-corruption reforms would not be possible without international cooperation. So that’s why this visit, this cooperation, talking to these people, having a common agenda, and common understanding on where we should go, and how we should do it, is of utmost importance.

Brian Bonner: Obviously, we’d be remiss to say, that Ukraine is supposed to reform in the midst of a full-scale war. So I have to ask you, how has the war affected the ability to drive judicial reform in all of its components, from the courts to “watchdogs” on the courts, to attorneys, to legal education? I imagine it’s changed a lot, but maybe that’s not the case.

Mykhailo Zhernakov: You know, it’s like driving a car through a minefield that you simultaneously have to rebuild on the way while driving it. And you cannot stop, you cannot turn the wrong way. It’s a task, and it’s quite a difficult task. On one hand, the context of the war helped to foster, to speed up the EU integration process, and that brought dynamics in terms of changing the laws, changing the policies, trying to cleanse the judiciary, all that.

On the other hand, there are so many things that could be better if it were not for the war. So many instruments of democracy are limited: you cannot have peaceful assemblies, and many things are closed, such as the Rada committee meetings and plenary meetings, and this and that. So there are things that are limited. If we had the arsenal, the instruments that we used to have before the full-scale invasion, I think that the result might have been even better.

Brian Bonner: Don’t we also need high-level buy-in, like a president with the intent to help drive this reform? And President Zelensky is way too busy for that. So I don’t know if you have a real advocate in the administration or enough advocates in parliament.

Mykhailo Zhernakov: That’s a very good question. Yes, it’s no secret that a lot of power is concentrated in the president’s office. Currently, we have a very unique situation. It was like this before when a lot of power was concentrated in the presidential office, but the parliament and the cabinet were also quite strong players. Now almost everything is in Bankova (presidential office – ed.).

So that’s difficult sometimes. At the same time, there has been a change in leadership, in some parts, on Bankova. Specifically, a person who’s responsible for justice reform issues has been changed. And I personally think that’s a change for the better. At the same time, there are still people inside the office of the president who have not been changed and who are linked to corruption, and who have been investigated. Generally, in the whole power setup, there are still people who are not exactly very pro-reform-minded.

Brian Bonner: In other words, they don’t want an independent tradition.

Mykhailo Zhernakov: They don’t want that happening.

Brian Bonner: They want it to be controlled.

Mykhailo Zhernakov: And there’s a vested interest, there’s huge resistance from the system itself, from the judiciary, from law enforcement, from many things surrounding it. Again, there are partners in this struggle, such as the newly established anti-corruption bodies: the NABU, the Anti-Corruption Bureau, the Anti-Corruption Prosecution, the Anti-Corruption Court, and the Corruption Prevention Agency. There are things and institutions that help to do that; it’s not homogenous. So you still have to navigate it. And of course, you’re absolutely right, you have to have this strong political will, so to say, in order to push things.

Who stands in the way of reforms in Ukraine?

Brian Bonner: Yeah, you’ve always said that, that’s one thing from my Kyiv Post days. That stuck in my mind: you can do an independent judicial system in many ways, it’s a process, but the question is intent. Does the government have the intent? So can you name names who are obstructing the administration?

Mykhailo Zhernakov: Well, there are names, those names are quite known to a variety of stakeholders. There are no secrets.

Brian Bonner: Oleh Tatarov?

Mykhailo Zhernakov: Yeah. In all honesty, this person was indicted. There was a criminal case about corruption that he was the suspect in. He served Yanukovych in very high ranks in the Ministry of Internal Affairs, and he said that the Maidan protestors shot themselves in the back of their heads. So there are a lot of things that are incompatible, necessarily, with what is going on.

Brian Bonner: And he’s deputy head of administration in charge of law enforcement, right?

Mykhailo Zhernakov: Yes, and there are other people who are also inside the judiciary, who are not helping. So there are all kinds of interests around. You know, even if they were not there, it’s physics: an object in motion stays in motion, and an object at rest stays at rest. And you have a big object; you need to have tremendous energy to move it at least somewhere, even if nobody’s resistant.

So you have to have this impetus; it has to be there. And if it’s not there, it has to be generated from the outside; there’s no other way. I can’t say it’s not there. The power of the people is tremendous. The request for change, the desire—all these kinds of things, especially now—they’re very acute with the full-scale invasion.

But again, there have to be decisions made on the political level to make things happen. So that’s where the international part is important. That’s where our partners will say: “Listen, we are supporting you, of course, we see you’re a democracy, but you know, we have to make steps in order to ensure you are a democracy.” As Blinken said, and I think it’s very well put: “Ukraine has to be successful on the battlefield to not become Russia, and it has to be successful in combating corruption to not become like Russia.” And I think it’s a very good formula.

Brian Bonner: Did you write part of that speech for him?

Mykhailo Zhernakov: No, I have not. But I like to say that I think some of the things that Secretary Blinken voiced out in his speech at the Polytechnic University had a connection to what we discussed.

Brian Bonner: I think so because there are many players here, as you said, but you’re one of the driving forces. And thank God, because it takes a lot of stamina and persistence to make headway in this very frustrating struggle we’re under. And yeah, we were both there to watch Blinken’s speech, and I’m actually glad he did that.

Should the West help Ukraine less?

Brian Bonner: You also recently wrote a provocative op-ed saying the West should tie aid to reform progress. I assume you’re talking about non-military aid.

Mykhailo Zhernakov: Non-military, sure.

Brian Bonner: Non-military aid to progress. Because you think now is the time to use the West’s leverage. To finally eliminate the scourge of corruption in the judiciary.

Mykhailo Zhernakov: Absolutely, yes. Again, we can talk all we want about certain names, but essentially you got to create this power, this movement towards rule of law reforms. You have to push things very hard. I sincerely think President Zelensky really wants the country to progress and these things to happen. But then there are all kinds of people around.

In our experience, big successful reforms in the last 10 years since the Revolution of Dignity only happened when there was direct international involvement. In most cases, very strict conditionalities, are tied to certain concrete reforms. Again, it’s very hard for any political power, good or bad, to let go of things. Control over here, power, it’s all about this.

If you’re talking about an independent judiciary, that means you can no longer control the judiciary. If we’re talking about independent law enforcement agencies, that means you can no longer control law enforcement agencies, including those like you. You literally give them the possibility to investigate yourself and your people. So it’s not easy to do this; that is why this external help is very much needed.

Brian Bonner: So “carrot-stick”?

Mykhailo Zhernakov: Of course, yes. I also sometimes say, we’re still quite a young democracy. Even though there are a lot of good qualities that we can describe Ukraine with right now, still, as a democracy, we’re very young. And sometimes we say, when you talk to a child, you don’t describe to them the necessity of good nutrition and all that. You go eat your porridge, and then you can go play or have your sweets.

Ukraine is achieving amazing results on the battlefield and protecting the rest of Europe, the world order, and many other things. At the same time, in terms of democracy, we still need to have this little push, this sort of help from the outside to get where we need to be, even though it might not be very comfortable.

Rule of law in Ukraine before the reforms

Brian Bonner: We’re a work in progress. I’m going to quickly summarize our history as I understand it. And you can tell me if I’ve gotten it wrong. Until the EuroMaidan Revolution, until 2014, and you came onto the scene the next year, in this area, we had courts that were basically subservient to either the presidential administration or parliament. They could appoint judges and take care of that. We had oligarch control, and oligarch influence on some of the judges.

We had many verdicts, a lot of obstruction of corruption investigations, and a lot of harassment of political foes. We consistently had the lowest public opinion and trust. Is that fair?

Mykhailo Zhernakov: It’s either the lowest or one of the lowest levels of trust in public institutions in Ukraine, so that’s true. Consistently for about 10 years since we started doing this, we see that, yes, Ukraine’s judiciary, is either the lowest or one of the bottom three lowest levels of trust.

Brian Bonner: Is it still there today?

Mykhailo Zhernakov: Yeah, unfortunately, even though we made steps. Sometimes, and that’s where it gets really important, there’s this feeling, especially inside the EU. Sometimes, we hear it from EU bureaucrats who know Ukraine, and we’re surprised to hear that. We did these seven points that were necessary to get the candidacy for the EU and open any negotiations. The first two were about judicial reform, the Constitutional Court, and judicial governance bodies, and we did them. We did this benchmark step forward.

But it’s not like we did all the judicial reform in Ukraine, and now we can do all the other things. No, we made some steps; there were steps forward, and they helped. But we’re only at the beginning of the way; there’s still so much to do. That is why it’s not the right approach to things, saying: “Oh, we did this, we’re good.” No. Obviously, if you look at sociology and many other things, we’re not there yet.

Brian Bonner: It’s a complex system.

Mykhailo Zhernakov: Absolutely. It takes time; it takes a lot of effort.

Brian Bonner: You pointed out areas in which we’re doing well and areas in which we’re not doing well. But let’s just go through history again. From 2014 to 2019, I think you said “largely failure” during the Poroshenko administration. Why is that? And yet, it wasn’t a complete failure.

Mykhailo Zhernakov: There are at least two ways to answer that. One is political: the administration at the time didn’t want to let go of the courts. But they wanted to show progress and tick the boxes and do the window dressing, saying: “Look, we’re doing something,” but in reality still keeping manual control over what’s happening in the courts. That’s the political part.

The societal part is that we were still learning. We looked at what was working and what was not working, and we made mistakes, honestly. Back in 2014-15, we thought that judicial self-governance, for example, was a good recipe, which it is in other countries. It’s a very good recipe to preserve the system and keep the status quo. But it’s a terrible recipe if you want to reform the system because any self-governance essentially reproduces the system.

Brian Bonner: They take care of each other.

Mykhailo Zhernakov: Yes, they make more of themselves.

Brian Bonner: So success was taking appointments and firing out of the hands of the politicians. That was a success, right?

Mykhailo Zhernakov: Yes, that’s true.

Brian Bonner: But it didn’t work well because the judicial-governance bodies weren’t ready for it?

Mykhailo Zhernakov: They just gave it back to the bad judiciary. The bad judges select bad judges, and it just goes on forever.

Brian Bonner: They can’t clean themselves.

Mykhailo Zhernakov: No. We learned that the hard way, and we know it very well. By the way, that happened before in other Central-Eastern European countries that are mostly Ukrainian neighbors. So we know these things. For some reason, the EU and others, they come and they make the same mistakes, unfortunately. And of course, we also made these mistakes, but now we have learned.

By the way, back in 2014-2019, the one thing that was very good about judicial reform was the creation of the Anti-Corruption Court. During Poroshenko’s time. Even though he didn’t want it, he resisted. We insisted, the IMF insisted, and the other international partners insisted. And we have the beautiful Anti-Corruption Court. Why? We invited international experts to help us select the Ukrainian judges. And that’s the recipe that we’re still using. And that’s the best one that we have.

Corruption in the courts of Ukraine

Brian Bonner: Okay, so we had some progress there. It was slow and painful because I lived through it. When we’re talking about disciplining bad judges, we’re talking about the High Council of Justice, right? Are they working well now in your view?

Mykhailo Zhernakov: They’re working better than their predecessors. However, they’re still not working well enough to ensure we are on the right track towards a clear, non-corrupt, independent, capable judiciary. Again, that was rock bottom. It was really a hard task being worse than these guys, Yanukovych and later Poroshenko.

Now these guys are better, but again, they’re not good enough yet. So that is why we have to keep working with them. We have to keep renewing this body; we have to do many more things. We must renew other parts of the judiciary, such as the Supreme Court. To remind everybody, the National Anticorruption Bureau caught the head of the Supreme Court, the president of the Supreme Court, red-handed with a $2.7 million bribe in one of the commercial cases.

Brian Bonner: This is not an ordinary member of the Supreme Court.

Mykhailo Zhernakov: Not at all. This is the president of the Supreme Court, who, by the way, was in the US just about a week or two before that happened; he had a huge tour. We were all fooled; we also thought that he looked progressive. He was quite young; he had progressive ideas, but at the same time, it appeared that he also had shady deals. Which is bad news, of course. It shows the real state of play inside the Supreme Court and the Ukraine judiciary. But at the same time, there is good news about Ukrainian law enforcement and anti-corruption agencies.

Brian Bonner: Well, NABU is understaffed; imagine how many people they’d catch if they had the resources.

Mykhailo Zhernakov: Exactly. But even with current resources, it was unimaginable several years ago to get the head of the Supreme Court. Ministers, deputy ministers, members of the parliament, judges, prosecutors, and the people they are after. There are dozens of people, maybe hundreds already now, who are behind bars, who would be untouchable before NABU was created.

Brian Bonner: So that’s good news, we’ve lost the untouchables. But what’s the status of his case? Another recurring feature of our judicial system is people get arrested, charged, and then years later?

Mykhailo Zhernakov: It’s catch and release, yes. That happened to Vsevolod Knyazev, the former head of the Supreme Court, who got caught. There were weird things with lowering the bail. It’s not going well, but again, there are at least two tracks. One is the criminal case, prosecuting him and his associates, that’s one thing. But another thing is to cleanse the Supreme Court. That’s not one case; there are 152 judges in the Supreme Court.

Brian Bonner: Which makes you wonder if the head is corrupt.

Mykhailo Zhernakov: Well, that’s in the case that at least four other judges who got the money, the same money. The numbers of the banknotes match. And 13 others allegedly are involved in this case. And then there are dozens of others who, by the decision of the Public Integrity Council, do not correspond to the integrity criteria.

So, there are many challenges in the Supreme Court, and we have to deal with them. By the way, the EU says, in black and white, in its accession report of November last year, that we have to address these corruption issues.

Brian Bonner: And one thing was that judges were poorly paid before one of the post-revolutionary reforms. So, can you call this a corruption of choice, not of necessity? Because the Supreme Court justices make more than $10,000 a month.

Mykhailo Zhernakov: Something like this. In Ukraine, it is more than enough ($10,000 per month – ed.). So you don’t lack money, it is a choice, you want it. Of course, you have to do both, at least. You have to have a decent salary, a market salary. But you also have to have good selection procedures, integrity checks, and ongoing mechanisms to ensure that these things don’t happen or the possibility is minimized. Because if you just hope that if you get them big salaries, they won’t get bribes, it is not a strategy. You need to have the infrastructure in place.

Hierarchy of the courts

Brian Bonner: Now, one small thing. Is the Supreme Court the highest authority?

Mykhailo Zhernakov: Yes.

Brian Bonner: So even the Constitutional Court answers to the Supreme Court, or they are separate?

Mykhailo Zhernakov: No, The Constitutional Court is united in the United States, but here it’s different. The Constitutional Court decides on the laws and regulations and whether they’re constitutional. And the Supreme Court just does the cases on the cassation level. The cases are civil, commercial, criminal, and administrative.

Brian Bonner: They will be the final word?

Mykhailo Zhernakov: Yeah. There’s also this relatively new thing, it’s called individual claim. You can file an individual claim to the Constitutional Court if you think you have been treated unconstitutionally and if you exhaust all the other possibilities inside the court system of Ukraine. It’s like the US Supreme Court, but it’s divided in two.

Brian Bonner: Can the Supreme Court overrule the High Anti-Corruption Court?

Mykhailo Zhernakov: Yes.

Brian Bonner: So they’re not completely independent?

Mykhailo Zhernakov: No. There was a discussion about whether we have to, and we still think we do, have a separate chamber inside the Supreme Court that would deal with anti-corruption issues, but it’s still not there. There are some good and fair decisions of the anti-corruption court that were sadly overruled by the Supreme Court.

On the necessary reforms in Ukrainian courts

Brian Bonner: Correct me if I got it wrong, but we need a new Supreme Court; we need a new administrative court to remove Pavlo Vovk (former head of now dissolved District Administrative Court of Kyiv – ed.), who destroyed the court. He’s the architect of a lot of corruption, allegedly.

Mykhailo Zhernakov: Oh, and just outright anti-Ukrainian decisions. There were so many: attacking the reforms in the army, attacking reformers in the government, reversing the decommunization. There’s the whole register that we made of the anti-Ukrainian decisions.

Brian Bonner: Is he facing criminal charges somewhere?

Mykhailo Zhernakov: Because of corruption, it’s not enough. Again, it’s a structural thing. So it’s the individual case, even if we get a sentence there, which is still challenging because he’s a good lawyer and has good lawyers. There are challenges there. But we have to answer systematically. We have to have a structural answer, which is creating a court that would not have judges like this and those practices.

Brian Bonner: Who has been doing that work since that court was demolished (District Administrative Court of Kyiv – ed.)?

Mykhailo Zhernakov: Their sister court. So, there was the district administrative court of Kyiv city, and there was the Kyiv district administrative court. It’s about the Kyiv region.

Brian Bonner: So they transferred it?

Mykhailo Zhernakov: They transferred it to that court for a while before the new one is created.

Brian Bonner: Okay. So the new administrative court. You talked about the need for legal education reform.

Mykhailo Zhernakov: Oh, yes, absolutely; thanks for bringing this up.

Brian Bonner: Bar reform. And we’re still looking for a new Constitutional Court?

Mykhailo Zhernakov: Now we’re in the process of hiring judges under the new procedure for the Constitutional Court, which is good and a huge step forward. Is it good enough? We’ll see when we have the appointments, but so far, we see that the selection process is nothing like we had before. So it’s a really big step forward.

Brian Bonner: You can have a good process, but you don’t know until they start issuing rulings. Let’s talk about the Supreme Court, the new administrative court, legal education reform, bar reform, whatever’s on your mind. Forgive me if I think like this: Didn’t we just do this? You know, a few years ago?

Mykhailo Zhernakov: Well, we did. We tried to do the Supreme Court several years ago; that’s the challenge. And now the Supreme Court judges go, “You know, we’re already past that, we’re already reformed. What do you want from us?” No, you’re actually not. We tried to do that. We rebooted and created the one from scratch with a new competition, but the competition was rigged. We actually didn’t do it, so now we have to redo it. We have to redo it as many times as needed until we get it right. So, some things you have to redo, some things you have to improve, but again, lots of work.

Legal education—let’s start with that. We’re still not entirely there. We’re still not 100% there yet in terms of opening these social lifts for lawyers, but we’re almost there because now the hiring procedures are transparent, and the commission is so much better than it was before. So now, basically, if you’re a good lawyer and you want to become a judge, it’s possible.

The problem now is that we’re running out of good lawyers. We have them in necessity only in higher courts, like the Supreme Court, in this newly established administrative court, and others. The overall need for new judges is more than 2000 in the system. And I severely doubt that we have 2000 lawyers in the country ready to become good judges. Even though we have hundreds of thousands of people with law diplomas. And that’s the twist.

Brian Bonner: Problem with education. It’s still outdated and Soviet.

Mykhailo Zhernakov: It’s outdated, commercialized, and low quality. Not all of it, but there are very few universities that do this thing right. And then there are all kinds of aviation, agricultural, veterinary, and other universities or schools with legal faculties. There ar almost 300 legal schools for 40 million. It’s way too much.

That’s because it was fashionable, like a “road to success,” sort of. Not in a good way. If you become a lawyer, you could become a prosecutor or investigator or somebody like that and earn corrupt money. That was very much about that. So that is why all kinds of universities suddenly started having law faculties. And, of course, overall, the level of education is quite poor. So it’s also about standards.

It’s about the delineation of legal education and law enforcement education. Basically, now police academies, for example, are training lawyers in Ukraine as well, which is strange. It doesn’t happen anywhere except in a couple of other countries that unfortunately, were part of the Soviet Union. That happens because, again, these students, these cadets, are living in barracks, marching, and following orders for years. And then they suddenly become judges.

Brian Bonner: So we got a lot of work. How many judges overall, under all levels? 9,000?

Mykhailo Zhernakov: It used to be like 8,000 or something. The judiciary calculates that they need 7,000, and we are lower than 5,000.. So, the lack of judges is critical. Especially in the frontline areas, especially at the appellate level, both territorial and structural parts are suffering.

Brian Bonner: You agree justice delayed is justice denied? Will we get to a point where we have speedy trials?

Mykhailo Zhernakov: Generally, even though the biggest problem we’re facing is still integrity, I would rather have justice later than injustice tomorrow. There’s this discussion about the judges. They go like: “Oh, but we need all the judges right now. Why do we need so complicated selection procedures and integrity checks? We just need more judges and more resources.”

No. And we’re doing this for decades to come, that’s the thing. If we do it badly now, if you hire 2,000 or 3,000 new judges, we will not be able to get rid of them for the next thirty or something years before they retire.

Brian Bonner: Because they have strong protections now.

Mykhailo Zhernakov: Absolutely, yes. So that is why it’s critical to do it now. And it’s a great possibility to hire in the new generation. We can change the face of the judiciary for better and for good, or we can cement what we have now, again for the future generation. So that is why what is happening now is supercritical.

Brian Bonner: Is it true their pay can’t be cut constitutionally?

Mykhailo Zhernakov: Well, it is subject to interpretation. The Constitutional Court ruled that you cannot lower the remuneration for the judges, which I think is going a little over the top. On the one hand, it is an important guarantee of independence. On the other hand, if the country doesn’t have resources, how are they better than the military, the teachers, or anybody else?

Russian influence on Ukrainian judiciary

Brian Bonner: Fair enough. I want to ask you about where you see evidence of Russian influence. I believe in the Supreme Court and the National Bar Association, or the attorneys? Tell me how serious Russian influence is still in what you see.

Mykhailo Zhernakov: Very serious still. Well, It doesn’t just miraculously disappear overnight, does it? So one could think, we’re at a state of de facto full-scale war with Russia. How worse can it be? But again, these agents don’t disappear overnight or in the blink of an eye. You have to get rid of them, that’s the thing.

Brian Bonner: Who are the most prominent examples you think?

Mykhailo Zhernakov: Well, out of all the rule of law setups, the bar is the least reformed. There weren’t any changes since 2012

Brian Bonner: This is the association of the lawyers, right?

Mykhailo Zhernakov: Yes. It’s different from what they have in the US or in the Anglo-Saxon system, but it’s still similar. They have certified lawyers. They can represent (clients – ed.) in court; that’s what they are. And they have links to Viktor Medvedchuk (Ukrainian pro-Russian collaborator and former politician – ed.), who is the relative of Vladimir Putin and who also used to be a member of this organization just until recently.

Brian Bonner: Viktor Medvedchuk was the gray cardinal running the court system for many years, right?

Mykhailo Zhernakov: Well, yes, he was, together with another couple of guys. The bar association still has connections, and they have this weird stance on lawyers in the Russian-occupied territories. In their official communication, they never use words like “victory of Ukraine” and they never condemned Russian aggression openly.

And they’re a part of the state, practically. On one hand, they’re self-governed, but simultaneously, they fulfill a very important state function. And they’re pretty much either borderline or right away Russian sympathizers, which is insane to me. So there’s a lot that has to be changed there as well. Let me not even start with all the hiring, firing, disciplining, and all that. It’s very much about that.

Brian Bonner: What about the Supreme Court? Didn’t they elect somebody high up? Was there someone in the Supreme Court with integrity issues involving Russian citizenship?

Mykhailo Zhernakov: Oh, yeah, Bohdan Lvov, that’s an interesting thing. So when we had this first, most successful attempt at reform in the Supreme Court, there was this competition. Again, it was rigged. As the Public Integrity Council, I was also a member of it; we are an official body, but from civil society, that advises on judicial appointments. And we said, listen, there is this mountain of evidence that this person is involved in corruption and integrity issues. And they still got him through. We didn’t yet know about the Russian passport then.

This person became the deputy head of the Supreme Court. And he had access to state secrets, all that. Then, the journalists found out that he had a Russian passport. And, of course, he’s then kicked out by Knazev, who is still head of the Supreme Court. And he was kicked out of the court in a very logically done way because according to the constitution if you have citizenship of any other country, you’re not a judge anymore since that date.

The SBU, Ukraine’s security service, officially confirmed that he had a Russian passport, so he was kicked out. Now, he’s challenged that in the courts, and it looks like he might be winning and returning. We might have a unique situation where a Russian citizen is coming back as a judge of the Supreme Court.

Brian Bonner: As a judge or head?

Mykhailo Zhernakov: As a judge of the Supreme Court. He will never become head or even deputy head. Even having a Russian citizen as a judge would be weird enough. But as a judge of the Supreme Court, it’s just beyond dangerous.

Are Ukrainian courts fair?

Brian Bonner: You often deal with high cases. And I’ve talked to other people who have been in the court system, and they say it’s not all monolithic. Well, some are good judges, some not good judges. What are my chances, Joe Citizen, the average person with no influence, to get a fair hearing and swift adjudication of whether I’m guilty or not based on evidence? Are my chances good or still pretty bad?

Mykhailo Zhernakov: If you’re just a regular citizen, and that’s the argument that the judges bring up, and that is factually true, they say, look, what’s wrong? I don’t know, everybody’s happy, 99 out of 100 or 999 out of 1000 cases we’re dealing with. I owe you $1,000. I will bring the case to court, and it will be settled. You know, if it’s black and white, if it’s not too complicated, if it’s not too political, it will come out as right.

However, it is not the 99 that matters most for society. It is the one about the presidential election we had in 2004 (the court overruled the rigged election results in favor of the pro-Russian candidate Viktor Yanukovych – ed.)

Brian Bonner: That decides the reputation.

Mykhailo Zhernakov: Sure, and it has a tremendous influence on society. That’s because the court system doesn’t only work for the parties; it works for the society, checks and balances, and all this democracy. Unfortunately, there we have problems where one case may weigh as much as a thousand others if it’s about removing the minister or deciding the presidential election, or all these kinds of things. And this is where we’re not yet there.

Brian Bonner: Oligarchy influence?

Mykhailo Zhernakov: Of course. In courts, it’s like “a chicken and the egg”, because oligarchs will not be oligarchs without the courts. It’s the courts who give them benefits, who will remove competition from the market, who exempt them from taxation, who give them other benefits illegally, who put them in a privileged position as opposed to the rest. So you don’t have equality before the law, right?

And on the other hand, the oligarchs make the judiciary because they need it. The bad judiciary, the way it is right now in Ukraine, mostly because they need this instrument to become oligarchs. So judicial reform is not only about you defending your rights in the courts. It’s about the whole redistribution of power in the country. It’s about shedding the rest of these neo-feudal things and becoming a democratic state. So that’s why it’s so important, and that’s why it’s so hard.

Brian Bonner: Mykhailo, we could talk for hours, but I’m glad Ukraine, and I think Ukraine is glad that we have such a young, strong, dynamic, knowledgeable person helping us achieve the day when we can have a real, independent, trustworthy judicial system.

Mykhailo Zhernakov: We absolutely will. That’s one message I want to convey: Even though we have this problem, we are on the right track. The civil society and the Ukrainian people are very strong. We are very grateful for all the support we’re getting, and we will win this.