Perspective Chapter: Judicial Power vs. Political Corruption – National and International Experience

1. Introduction

Historical, political, legal, and international preconditions for establishing the judiciary in an independent Ukraine.

More than three decades after declaring independence, Ukraine has yet to modernize its legal system significantly. This is largely due to the duality of the country’s previous foreign policy and international development strategy, which hindered progress with its two-pronged approach. The confrontation between the pro-European component of Ukrainian society and citizens who continue to view the Soviet era nostalgically has also hindered progress. This primarily affected the formation of central government bodies and local self-government.

Corruption, deliberately cultivated by internal and external opponents of an independent and democratic Ukraine, was deeply entrenched in the public administration system. Overcoming it became crucial to asserting national sovereignty.

All of these trends directly or indirectly influenced the development of the judiciary in independent Ukraine, shaping the context in which the justice system has evolved from its early stages to the present day.

The previous experience of judicial reforms in Ukraine since its independence prompts us to pay attention to the historical, social, political, and legal processes in which the Ukrainian political nation developed. Thus, as it is seen, “the formation of Ukraine as a sovereign state after the collapse of the USSR was a strategically difficult task. In fact, in the early 1990s, there was no mass ‘passionate explosion’ of the Ukrainian people as a political nation, since, at that time, the post-totalitarian Soviet legacy still dominated the national mentality, and the young political nation of independent Ukraine was only beginning to gain weight in society. In fact, Ukraine began a process of economic, political, and historical rejection of a system of government that was already dying but had deep roots. That is why, for quite a long time, our country continued to bear the “label” of a post-Soviet republic with the corresponding traditions and experience of the past, including legal science.

Ukraine’s unique geopolitical position at the crossroads between Europe and Asia has led to each of these regions, represented by the EU and the Russian Federation respectively, seeking to draw it into its sphere of influence. Ukraine’s choice of a specific strategic course did not simply involve joining certain (European or Eurasian) intergovernmental integration structures, but above all was a factor in choosing one of the models (Western or Eastern) of state and legal development with its inherent institutions, principles, system of worldview values, etc. In essence, it was about determining the civilizational vector of Ukraine’s further development in the long term.

For some time, Ukraine managed to adhere to a policy of so-called ‘multi-vector balancing’: on the one hand, European integration was declared a priority in foreign policy, and on the other hand, Ukraine participated in some integration projects in the CIS and built bilateral relations with other former Soviet republics on the basis of good neighborliness, cooperation, and partnership. One of the goals of this balancing act was to obtain political and economic preferences and international financial assistance. At the same time, Ukraine became a strategic corridor for the transit of energy resources from the East (the Russian Federation) to the EU countries, including the states of Eastern Europe, which determined its position on the “political map” for a long time and influenced the course of reforms, in particular in the field of the judiciary.

However, after the Orange Revolution (2004–2005), and especially after the Revolution of Dignity (2013–2014), Ukraine enshrined in its constitution that its priority direction for further development and integration is European [1]. Thus, in 2018, our country renounced its international “neutrality” and constitutionally proclaimed the “European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course” [2]. Due to such fundamental changes in the geopolitical strategy, one of the main ways for our country to implement it is to reform “the justice system (in the direction of democratizing it and increasing its efficiency, while overcoming corruption dependence) to stabilize the internal situation in Ukraine and prevent possible social crises in the future [1, 3].

It should be noted that 2024 was, without exaggeration, a historic year for Ukraine in terms of its European integration course, as it was in that year that the First Intergovernmental Conference in Luxembourg officially opened negotiations on Ukraine’s accession to the EU. Our country made every effort to achieve this goal.

The large-scale update of the provisions of Ukraine’s Basic Law in 2016 was aimed at forming constitutional foundations for the democratization of socio-political life in Ukraine, bringing the national political and legal system closer to European values and principles, and improving the domestic legislative framework. These are changes that have long been on the agenda in the context of constitutional reform in Ukraine. However, these are also the constitutional reforms that the European Union insisted on, considering them a necessary condition for the further development of associative relations with our state and the realization of its European integration aspirations [1].

This approach is directly reflected in the text of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community, and their Member States, on the other hand (hereinafter referred to as the Association Agreement). Thus, Articles 3 and 6 of the Agreement define the aspirations of Ukraine and the EU to cooperate in order to ensure that “their domestic policies are based on principles common to them, in particular, such as the stability and effectiveness of democratic institutions, the rule of law and respect for human rights and fundamental freedoms, good governance, market economy, balanced development, etc.” [4]. Specifying these provisions, Article 14 of Section III “Justice, Freedom and Security” provides that, “within the framework of cooperation in the field of justice, freedom and security, the Parties shall attach particular importance to establishing the rule of law and strengthening institutions at all levels in the field of governance in general and law enforcement and judicial authorities in particular. It is emphasized that, among other things, the Parties’ cooperation will be aimed at strengthening the judiciary, improving its efficiency, ensuring its independence and impartiality, and combating.” [4]

Ukraine has adopted a number of important European integration laws and implemented a series of reforms affecting all areas of Ukrainian society, primarily judicial reform and the fight against corruption.

However, domestic civil society signals that corruption consistently ranks among the three main problems facing the judiciary. Ukrainians consider corruption to be the biggest problem after the war. [5]

Thus, protecting Ukraine’s state sovereignty from external and internal threats, as well as our country’s full-fledged accession to the EU, poses a number of difficult challenges for Ukraine. One of these fundamental tasks is to overcome corruption, which is deeply entrenched in the system of public administration and is destroying it from within. To this end, Ukraine must clean up and reform its judiciary, specifically its corps of judges, to achieve institutional independence and functional capacity. These tasks appear to be interrelated.

This paper focuses primarily on such research topics as the independence of judges (the judiciary), political corruption, and the revolutionary nature [or historicity] of judicial decisions. The aim of this study is to clarify the interdependence and mutual influence that these legal phenomena have on the foundations of national statehood and entry into the civilized legal space.

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2. Political corruption is a key threat to the Independence of the judiciary

Of all the generally recognized manifestations of corruption (bribery of national public officials; bribery of foreign public officials and officials of intergovernmental organizations; money laundering; embezzlement of property in the private sector; bribery in the private sector; illicit enrichment; abuse of office; abuse of influence; embezzlement, misappropriation, or other misuse of property by a public official; concealment or continuous retention of property obtained through corruption) [6], in my opinion, political corruption poses the greatest threat to the state and society.

There is currently no official definition of the concept of “political corruption” at the level of either national or international legislation, but this category has independent legal content and wide application, both in science and practice.

In particular, the international organization Transparency International understands “political corruption – manipulation of policies, institutions, and rules of procedure in the allocation of resources and funding by political decision-makers who abuse their position to maintain power, status, and wealth [7]”. At the same time, the international non-governmental organization ESCWA (operating within the framework of the UN) “defines political corruption as the misuse of public or political office and resources for illegitimate, usually secret, private gain [8]”.

In Ukrainian legal science, political corruption is understood as an informal institution that leads to the unlawful use of power resources by political actors for purposes other than the public interest [9].

At the same time, as Professor Mykola Melnyk rightly points out, any corrupt acts committed by representatives of state power (local self-government) have political content and can be considered political corruption, which is determined by the status of the subject, the focus of their illegal activities, and the nature of their consequences.

Persons who are directly involved in the development and organization of state policy in various spheres and at various levels can be classified as subjects of political corruption.

Political corruption is aimed at abusing power for political purposes, in particular: obtaining power, retaining it, strengthening it, or increasing it (expanding powers).

In fact, this refers to the illegal seizure of state power, its capture through the appointment of “their” people to political and state positions, and the establishment of a system of power based not on democratic and legal principles but on personal loyalty and political affiliation. As a result, a situation is created in which political and state institutions, while formally retaining their social status, are, in fact, exploited in the interests of individuals or certain political forces.

If certain subjects of power corruptly appropriate powers not delegated to them, assume a part of power that cannot naturally belong to them, and concentrate state power in their hands, violating the legal principle of separation of powers, then they are, in fact, usurping power [10].

Unfortunately, Ukraine’s modern history has been marred by large-scale political corruption, including in the formation of the judicial branch of government. The politicization and secrecy of this process created the conditions for political corruption to exert a stronger influence on the formation of the judiciary, resulting in the fatal destabilization of the judicial system and its dependence on the ruling authorities, who were able to usurp state power.

Without a doubt, political corruption seeks to draw as many judges as possible into its orbit and bring them under its control, especially those of the highest courts or those with special judicial specialization, such as administrative judges, turning them into “their own/the right judges”. Such judges potentially become dependent on political patronage or blackmail and, as a result, become accomplices in corruption schemes when making politically expedient decisions.

At the same time, as Diego García-Sayán rightly points out, “corruption undermines the core of the administration of justice, generating a substantial obstacle to the right to an impartial trial and severely undermining the population’s trust in the judiciary.

Corruption has a variety of faces, bribery being only one of them, another being political corruption, much more unattainable and imprecise. Its broad range of action enables it not only to influence the judicial system but also all the sectors of state administration as well [11].

Forms and methods of political corruption have various manifestations. In particular, “corrupt methods of staying in power include fraudulent manipulation and weakening of institutions to create impunity for those in power. “Bribery” of officials from various oversight and control institutions, such as courts, auditors general, members of anti-corruption agencies, etc., is a widely used tool of political corruption.

This selected or purpose-fit allocation of resources makes the political power-holders into active bribers. The initiative is taken by the power-holders, and it is clearly in their personal interest (individual and group benefit) to preserve their power positions. Furthermore, in the same way as the corrupt use of funds distinguishes power-preserving political corruption from other forms of misuse of state power, the corrupt methods of power preservation distinguish it from a democratic distribution of favors (and burdens), as the decisions are made by the few and for the benefit of the few [12].

Political corruption actors often use various tools to manipulate public opinion through controlled media to discredit judicial and anti-corruption bodies that are not subject to political “bribery”. Loud public accusations of inefficiency in the judicial system are one of the ways to weaken the judiciary.

According to A. Aydin-Cakir and E. I. Akarçay, when faced with “corruption scandals, governments often resort to a blame-shifting strategy in an attempt to divert public attention from the allegations.

However, these attacks can have lasting consequences, gradually weakening judicial authority and legitimacy. At this critical juncture, the media plays a key role as the primary conduit between the public and the government. By shaping public perception, media coverage can amplify or mitigate the negative effects of verbal attacks on the judiciary [13].

Another instrument of political corruption, often used to weaken the justice system, is the unsystematic and permanent changes to legislation regulating the organization of the judiciary, the status of judges, legal guarantees of their immunity and irremovability, funding of the judiciary, and remuneration of judges and judicial officers, etc.

It is believed that the ruling political forces, which have received a mandate of trust from the voters to implement the relevant legislative reforms in the field of justice, should strictly adhere to them without the right to go beyond such election programs. The boundaries of the judiciary reform should be clearly regulated to prevent political manipulation of the judiciary.

In such a confrontation, the judiciary either actively resists unlawful interference with its independence or becomes part of the “system of political corruption”, serving its interests.

In this context, the Opinion № 21 (2018) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on preventing corruption among judges “rightly pointed out that corruption among judges is one of the main threats to society and the functioning of a democratic state. It undermines judicial integrity, which is a fundamental principle of the rule of law and a core value of the Council of Europe. Judicial integrity is the most important prerequisite for effective, efficient, and impartial national justice systems. It is closely linked to the concept of judicial independence: the latter ensures integrity, and integrity reinforces independence [14]”.

At the same time, the CCJE rightly emphasizes that whenever there is a prolonged structural imbalance or violation between the three branches of government, and where the system of checks and balances is weak or ignored, there is a serious threat to the independence, impartiality, and integrity of the judicial system.

At the same time, “effective prevention of corruption in the judicial system largely depends on the political will in the country concerned to genuinely and sincerely provide institutional, infrastructural, and other organizational guarantees for an independent, transparent, and impartial court. The state must implement the necessary legislative and regulatory frameworks to prevent corruption within its specific judicial system. It must also take all necessary measures to guarantee and promote a culture of judicial integrity, a culture of zero tolerance for corruption at all levels of the judiciary, including court staff, and the development of a culture of respect for the specific role of the judiciary [14]”.

In our view, political corruption poses the greatest threat to the rule of law and the affirmation of judicial independence.

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3. Countering political corruption through the Justice System: National and Supranational (International) levels

One way to combat political corruption is to establish an independent, competent, and impartial court. Such a court is the main means and guarantee of the democratic development of societies and the establishment of the rule of law. At the same time, it is an extremely effective and efficient anti-corruption tool, as it is capable of legally correcting any political distortion, stopping specific manifestations of political corruption, and restoring law and order in the political and legal sphere [10].

It is judges who bear the burden of ensuring and upholding the ideals of the rule of law. In doing so, they face various challenges and threats.

As Professor Hans Petter Graver rightly points out: “The institutional organization of the judiciary is not sufficient to ensure the rule of law. Experience shows that the rule of law requires the presence of people who are able, capable, and willing to defend it when necessary.

The rule of law is an attractive ideal. However, it loses its popularity when it seems to interfere with necessary policies aimed at achieving important goals, such as defeating communism or Islamic terrorism, protecting the welfare of a socially oriented state, or preserving national values. In such cases, it is very easy to mobilize the necessary support to circumvent the rule of law.

It is in such cases that the rule of law needs heroes capable of defending its ideals, which are threatened with extinction because the authorities or the masses resort to illegal measures.

Judges have a duty to defend the rule of law as a last resort, and it is judges who must determine whether the measures taken by the authorities are based on the law and whether their decisions are made within the law. Courts are independent of the legislative and executive branches, and for this reason, judges must not show allegiance to them.

Research into the activities of judges reveals the essence of the relationship between power, law, and morality. Civic courage and a desire to uphold the rule of law are very important in all public offices, but the work of judges requires more.

Both law and morality require judges to form a barrier to resist demands from either the government or citizens to violate the law.

However, there are many other cases in history that prove the opposite. When demands relate to social processes, judges bend. In other cases, the law may be in significant conflict with fundamental moral values. What do we expect from judges when the law is completely evil? Must they still abide by it regardless? Judges tend to position themselves as champions and defenders of the rule of law, but when they have to choose between the law and the ideals of justice, they somehow tend to choose the law, even if it is completely unjust [15].

Speaking in a historical context, I propose to focus on court decisions and judges who have changed and continue to change the course of history. In this regard, it is appropriate to speak of the “revolutionary nature of a court decision,” which can be imbued with both positive and negative connotations.

In a positive sense, a “revolutionary court decision” is a decision that, contrary to an unlawful legal norm or contrary to an established unlawful tradition, embodies the rule of law. Such a decision effectively annuls an unlawful norm or, within the framework of judicial law-making, introduces a new legal norm in a legal vacuum. This is known as judicial law-making.

In a negative sense, an unlawful judicial decision becomes a catalyst for social upheaval and can lead to civil disobedience, revolution, and war.

Both variants of such “revolutionary” judicial decisions are known in the recent history of Ukraine.

In the context of this work, we will provide three illustrations from domestic and international judicial practice which, in our opinion, were decisive in the formation and affirmation of the rule of law and its key element – the independence of the court.

Cases heard by courts of general jurisdiction are traditionally much further removed from politics. However, even these cases are now often taking on a political dimension. This is particularly true of cases involving administrative justice. Among these, cases concerning the prohibition of citizens’ associations, compliance with electoral law, etc., are particularly politicized. Court decisions in such cases take on political significance beyond the will of their authors, significantly influencing political processes.

Moreover, courts are forced to become involved in this process during periods of acute political crisis. At such historical moments, they find themselves at the epicenter of politics, becoming active participants in it. It is the courts that often decide the fate of the country in these situations.

The Supreme Court of Ukraine was forced to carry out such a mission when it issued decisions on 3 December 2004 and 20 January 2005 in cases involving complaints by the authorized representatives of the candidates for the office of President of Ukraine, V. Yushchenko and V. Yanukovych, regarding the inaction, actions, and decisions of the Central Election Commission [16].

During the 2004 presidential election campaign, dirty tricks, compromising information, bribing voters, pressure from various criminal-oligarchic groups and clans, forceful persecution, and large-scale use of the so-called administrative resources were all used to secure victory for certain candidates.

This could not help but cause a negative reaction in civil society. Therefore, the civil protest resulted in mass demonstrations, which are commonly referred to as the “Orange Revolution” [16].

Thus, in 2004–2005, in addition to the political opponents in the election race, civil society and the state entered into an open confrontation. The procedure and method of resolving this socio-political conflict were of crucial historical importance for Ukraine.

Of course, the political events taking place in the country could not help but affect the course of the court proceedings regarding the above complaints. The Supreme Court of Ukraine found itself in a particularly difficult political situation when considering the first case after the second round of voting on 21 November 2004. In fact, it was given a function that is generally the prerogative of political authorities: to control the political situation, which was becoming increasingly aggravated and explosive. In this regard, the Supreme Court of Ukraine had to look for ways to expedite the consideration of the case and the adoption of a decision, while adhering to complex legal procedures that are inherently prone to slowness.

The Supreme Court of Ukraine also could not ignore the political consequences of its decision. After all, one of the main purposes of justice is to resolve a conflict, not to preserve it, let alone inflame it.

Finally, and most importantly, judges should resolve any political conflicts, even the most acute ones, exclusively by legal means, within the law and through the law, blocking their own political sympathies and beliefs. Otherwise, there is a danger that the court will become an appendage of other branches of power, an instrument for executing orders dictated by the political situation [16].

Summing up the analysis of the socio-political events of 2004–2005, which changed both the course of national history and the consciousness of every Ukrainian, Professor Mykola Kozyubra rightly notes that we have witnessed a not-quite-usual manifestation of the true independence of the judiciary and its transformation of the rule of law from the abstraction it was perceived as before into reality [16].

It is believed that it was thanks to the position of the judges of the Supreme Court of Ukraine in these historic court cases related to the 2004 election process that Ukraine managed to postpone for one decade the socio-political breakdown and war into which our country was forced to plunge at the end of 2013.

Another striking example of a historic judgment that was of revolutionary importance for Ukraine and became a prerequisite for reforming the Ukrainian judiciary and establishing standards of an independent judiciary is the ECHR judgment of 9 January 2013 in the case of Oleksandr Volkov v. Ukraine [17]. In this judgment, the international court revealed systemic flaws in the politicization of the judicial system and the corresponding impact on the independence of judges in Ukraine.

In our opinion, this judgment clearly establishes the standard by which judicial independence should be protected from political interference, including potentially corrupt ones.

Thus, in its judgment, the ECtHR stated that, in order to establish whether a court can be considered “independent” within the meaning of Article 6(1) of the Convention, attention should be paid to the manner of appointment of its members and the term of their powers, the existence of guarantees against external pressure, and the question of whether the body creates the appearance of independence.

The ECtHR also openly pointed to obvious conflicts of interest and risks of political corruption arising from the judicial legislation in force at the time of the judgment.

In particular, the court stated that, according to Article 19 of the Law on the High Council of Justice (1998), only four members of the High Council of Justice (hereinafter referred to as the HCJ) worked there on a permanent basis. The other members worked and received their salaries outside the HCJ, which inevitably meant that they were financially, hierarchically, and administratively dependent on their main employers, thereby threatening both their independence and impartiality [17].

The third example, which is closely related to international judicial practice in combating political corruption and the usurpation of power, stems from the activities of the Court of Justice of the European Union (hereinafter – the EU Court).

The legal dispute between the EU and Poland over the judicial reform that the latter carried out in 2017 has gained significant international resonance. The reason for the dispute was Poland’s apparent deviation from the standard of ‘judicial protection sufficient to ensure an effective remedy’ in the adopted amendments to the judiciary legislation. Thus, certain changes to the organization of the judiciary in Poland have sparked a large-scale confrontation both within the country and with key EU and Council of Europe institutions.

It all started when, in 2017, the European Commission asked the Council of the EU to determine whether there was a “clear risk of a serious breach of the rule of law” by Poland, in accordance with Article 7 of the TEU. According to the Commission, the judicial reform has subjected the courts to the political control of the ruling majority, and “the lack of judicial independence has raised serious doubts about the effective application of EU law”. The EU Commission recommended that Poland respect the rule of law by amending the Law on the National Council of Justice and the Law on the System of General Courts, restoring the independence and legitimacy of the Constitutional Tribunal, and amending the Law on the Supreme Court so that the lower retirement age does not apply to sitting judges, abolishing the President’s discretionary powers to extend the term of office of Supreme Court judges [18].

In this regard, in 2019, the EU Court of Justice ruled in Case C-619/18 (European Commission v Poland), in which it stated that Polish legislation that reduced the retirement age of Supreme Court judges violated the principle of irremovability of judges and independence of the judiciary [19].

As Professor John Moraine rightly noted in this regard, analyzing the judgment of the Court of Justice in the above case (619/18, CJEU, 2019), the requirement of judicial independence that Member States must ensure in relation to national courts, which are called upon to decide on issues related to the interpretation and application of EU law, has two aspects.

The first aspect (external) requires that the court concerned exercise its functions in a fully autonomous manner, without any hierarchical restrictions or subordination to any other body, and without receiving orders or instructions from any source. It should be protected from external interference or pressure that could affect the independent judgment of its members and influence their decisions.

The second aspect (internal) is related to impartiality and is aimed at ensuring that an equal distance is maintained between the parties to the proceedings and their respective interests in relation to the subject matter of the proceedings. This aspect requires objectivity and the absence of any interest in the outcome of the proceedings, except for strict adherence to the rule of law.

In particular, the freedom of judges from any external interference or pressure, which is important, requires certain guarantees necessary to protect those entrusted with the task of adjudicating a dispute, such as guarantees against removal from office [20].

Almost simultaneously with the previous judgment, the EU Court of Justice delivered judgments in the joint cases C-585/18, C-624/18, and C-625/18 concerning the National Council of Justice (hereinafter – NCJ) and the Supreme Court (SC), noting that it is the SC that should verify the independence of the new Disciplinary Chamber of the SC to determine whether it can consider disputes regarding judges. It also noted that the NCJ, which makes recommendations to the President on the appointment of a judge to the position, will be able to do so objectively, but only if it is sufficiently independent from the legislative and executive branches and from the President himself [19].

Subsequently, in 2020, the EU Court of Justice ordered Poland to immediately suspend the application of national provisions regarding the jurisdiction of the Disciplinary Chamber of the Supreme Court.

The European Commission’s request for interim measures was the result of the ruling Polish authorities’ disregard for the decisions of their own Supreme Court of 05.12.2019 and 15.01.2020, which stated that “the Disciplinary Chamber, due to the circumstances of its establishment, the scope of its powers, composition, and participation of the newly appointed HCJ in its establishment, cannot be considered a court either in the sense of EU law or Polish law”.

It is worth noting that, in its confrontation with the Polish government, the EU has resorted to the use of economic leverage to ensure that Poland complies with the judgments of the EU Court of Justice. In particular, in 2022, the CJEU dismissed Poland’s complaint against EU Regulation 2020/2092 on the general regime for the protection of the EU budget, under which the Council of the EU was granted the right to reduce or even stop the allocation of funds through EU Member States’ funding programs if they were found to be in breach of the rule of law.

In 2021, the EU Court of Justice issued an interim judgment ordering Poland to immediately suspend national legislation relating to the powers of the Disciplinary Chamber of the Supreme Court. As Poland failed to do so, the CJEU imposed a continuing fine of EUR 1 million per day for refusing to suspend the controversial judicial reform provisions. Due to the continued failure to comply with this judgment of the EU Court of Justice, the European Commission, as of 27 October 2022, deducted seven tranches of fines from Poland, totaling EUR 267 million.

In 2023, the Grand Chamber of the Court of Justice of the European Union issued Judgment C-204/21, which reaffirmed the position that the legal order of the Member State concerned must include safeguards capable of preventing any risk of political control over the content of judgments, or pressure and intimidation of judges, which could, inter alia, lead to a lack of independence or impartiality on their part that could damage the confidence that justice in a democratic society governed by the rule of law must inspire in the people.

In this regard, the Court recalled that the fundamental right to a fair trial means, inter alia, that whenever serious doubts arise in this regard, every court is obliged to check whether it has a proper composition. Domestic courts may, in various other circumstances, be required to review compliance with the above requirements, and such review may relate, in particular, to whether a breach of the procedure for appointing a judge may lead to a violation of this fundamental right. In such circumstances, the fact that a national court performs the tasks assigned to it by the Treaties and complies with its obligations under those Treaties by giving effect to provisions such as Article 19(1) of the EU Treaty and Article 47 of the Charter cannot, by definition, be regarded as a disciplinary offense without violating these provisions of EU law [21].

It is worth noting that on 29 February 2024, the European Commission decided to unblock Poland’s access to €137 billion from various EU funds, which Poland had previously been unable to receive due to issues with the judiciary and the rule of law.

On 6 May 2024, the European Commission announced that it had completed its analysis of the rule of law situation in Poland and considered that there was no longer a clear risk of a serious breach of the rule of law within the meaning of Article 7(1) of the EU Treaty [22].

Commenting on the situation regarding the interaction between national courts and the CJEU, John Moraine notes that “courts in the EU are responsible for the proper implementation of EU law in their country. Given that courts in different countries may interpret EU laws differently, and if a judge of a national court of any instance has doubts about the interpretation or legal force of an EU law, he or she may, and sometimes must, seek advice from the Court of Justice [20]”.

These illustrations from the case law of national and international courts clearly show that courts are active participants in political processes, and their decisions can have both progressive and regressive impacts on the historical development of not only individual nations or countries but also far beyond their borders.

The independent position of the judiciary, based on the rule of law, is an effective tool in combating political corruption and the usurpation of state power.

Therefore, active defense of the independence of the courts is a requirement of the present. It is believed that in today’s realities, the requirement for judicial impartiality and neutrality should not limit the ability of judges to be active defenders of their independence, especially in relation to political processes of reforming judicial systems, the status of judges, guarantees of judicial independence and immunity, etc.

At certain historical moments, when communication between the judiciary and the political authorities comes to a standstill, it may be necessary to use more radical or effective forms and ways of being heard than the conventional ones. It seems that, in order to defend judicial independence and to be heard, judges have the right to political protest. Of course, such a protest by judges attracts attention not only from political opponents but also from wide sections of both national society and foreign or international political actors.

What are the limits of political protest by judges?

The International Commission of Jurists, analyzing the issue of “Freedom of expression, unions and associations of judges and prosecutors, peaceful assembly”, stated that: “International law and standards recognize the particular importance for judges (and prosecutors) to be able to exercise their freedoms of expression, association, and assembly in order to address threats to the independence of the judiciary; threats to judicial integrity; fundamental aspects of the administration of justice; or to otherwise promote and protect universally recognized human rights and fundamental freedoms and the rule of law. As such, there is very limited scope for any authority to restrict the exercise of these freedoms for these purposes, or to impose disciplinary or other consequences for having done so. This is true whether or not the matter is otherwise seen as politically controversial [23]”.

In this regard, the UN Special Rapporteur’s view is also correct, as he supports the possibility of “judges and prosecutors engaging in peaceful demonstrations to protect their professional interests (e.g., to improve and protect their conditions of service and remuneration) or to protest against justice system reforms that may undermine the independence of the judiciary and the separation of powers [24]”.

I would like to point out that, in Ukraine, judges are prohibited by law from participating in any political actions, rallies, or strikes.

At the same time, judges in many countries (the USA, Mexico, France, Spain, Italy, Poland, Slovenia, Greece, etc.) have already had experience with political protests and strikes in defense of their independence.

However, the issue of political protest by judges as a means of combating political corruption requires special attention and further research. In particular, it is necessary to develop a clear ethical and legal framework that defines the limits and procedures of “institutional protection” for the judiciary. Such a framework should serve as a guide for judges, providing them with a legitimate tool to protect the rule of law without compromising their independence.

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4. Conclusions

1. Political corruption carries the greatest risks of destabilizing the national legal system and the democratic order in the country. While at the national level, the worst consequences of political corruption are the usurpation of state power, legal anarchy, and the introduction of authoritarian or totalitarian regimes, the worst consequences of international political corruption are international conflicts and wars.

2. Overcoming corrupt influences on the processes of organization of the judiciary is a crucial goal on the way to establishing an independent judiciary in the country. Just as an independent judiciary cannot exist in conditions and under the influence of political corruption, political corruption cannot actively develop in the space of an independent judiciary. “Independent judiciary” and “political corruption” are antagonistic to each other.

3. National and international judicial practice, through relevant “revolutionary (historical) decisions,” creates exemplary standards of the rule of law and judicial justice, which require mandatory study and application by courts and public authorities.

4. International courts within the Council of Europe and the European Union have developed effective practices and legal positions on the compliance of the judicial systems of member states with the laws of the Council of Europe and the EU. This judicial practice is a separate source for implementing international standards on judicial independence and access to justice. It is believed that Ukraine should take into account the practices of the ECtHR and the CJEU when adapting national legislation to EU law in the field of the judiciary, particularly in terms of ensuring the right to effective and impartial judicial protection and preventing legal regulation mechanisms that may endanger the independence of judges and the judiciary through political corruption.

5. At the same time, as the national judiciary is in the process of transformation, this process is conditioned by the need for a constitutional transformation of the foundations of national sovereignty in the direction of “shared/pooled sovereignty”. Ukraine’s conscious choice of pro-European worldview values in the form of relevant standards requires our country to “weaken” national sovereignty by “transferring powers” or “jointly exercising sovereign rights” in order to inculcate supranational institutions and legal forms.

   Finally, the European integration transformation of Ukraine’s judiciary in the context of a full-scale war is a colossal and unprecedented challenge for the Ukrainian people, who are forced to simultaneously defend their sovereignty from external threats, destroy internal corruption structures that undermine statehood from within, and reform their legal system for EU integration.

6. Permanent reform of the judicial system and legal regulation of the status of judges can be a significant tool for political corruption in terms of subordinating judicial independence to political influence. The “suspended” status of judges, due to such ongoing reforms, is a significant lever of influence on the independence of the judiciary.

   It is believed that, in a state governed by the rule of law, there should be reasonable limits to the reform of the judiciary. The judicial system needs stability in its development, as well as organizational and institutional certainty. Legal reforms should be planned in advance, primarily in response to public demand, and their results should be predictable and clear, legitimized by public support and recognized by the judiciary itself.

7. It seems that judicial disobedience, in the form of political protest, can be a distinct form of legal counteraction to the abuse of undue political influence (political corruption), as well as a manifestation of judicial activity in defending the independence of the judiciary. However, such measures, in my opinion, should be a last resort in communication with the political authorities and should be used only after all other forms of negotiated communication have been exhausted, and as an immediate response to a gross violation of the judiciary’s independence by the ruling elites seeking to usurp power.