Patronal politics, judicial networks and collective judicial autonomy in post-Soviet Ukraine
| Date | 01 November 2018 |
| Published date | 01 November 2018 |
| DOI | 10.1177/0192512118802943 |
| Subject Matter | Articles |
https://doi.org/10.1177/0192512118802943
International Political Science Review
2018, Vol. 39(5) 662 –678
© The Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0192512118802943
journals.sagepub.com/home/ips
Patronal politics, judicial
networks and collective judicial
autonomy in post-Soviet Ukraine
Alexei Trochev
Nazarbayev University, Kazakhstan
Abstract
How and why do networks of judges make a difference in judicial politics in patronage-based systems?
Judicial networks provide important benefits to both patrons and judges by sharing information about
the exchange of concrete rewards and sanctions, generating expectations about the staying power of the
patrons and mobilizing judges when needed. These informational and mobilizing practices are at the heart of
collective judicial autonomy. Yet judges exercise this autonomy in different ways depending on the presence
of a dominant patronage network, the rigidity of the judicial hierarchy with the supreme court on top,
and the intensity of intra-judicial conflict. I explore the informational and mobilizing practices of judicial
associations – the most visible judicial networks – in post-Soviet Ukraine, a country with a large number of
these associations, varying numbers of ruling patronage networks and two attempts at the abolition of the
supreme court. Lessons from Ukraine’s judicial clientelism may help explain why competitive politics with
vibrant judicial associationalism fail to entrench judicial independence.
Keywords
Judicial autonomy, clientelism, judicial networks, supreme courts, Ukraine, judicial politics
Introduction
Every president of post-Soviet Ukraine has complained about the corporate solidarity of judges.
President Kuchma was caught saying in private that judges ‘in general, are bastards,’ according to
wiretaps of him available on the internet. In December 2004, 20 Supreme Court judges ruled
against Kuchma’s wishes and paved the way for the Orange Revolution. President Yushchenko
repeatedly complained in public that judges serve as a ‘brake’ to the country’s democratic develop-
ment (Trochev, 2010) after the Council of Judges of Ukraine had taken away his judicial appoint-
ment powers, and judges in several courts across the country had defied his orders (Trochev, 2010).
Corresponding author:
Alexei Trochev, School of Humanities and Social Sciences, Nazarbayev University, 53 Kabanbay Batyra Avenue, Astana,
010000, Kazakhstan.
Email: atrochev@hotmail.com
802943IPS0010.1177/0192512118802943International Political Science ReviewTrochev
research-article2018
Article
Trochev 663
President Yanukovych told the nation that its judges ‘disgraced the country’ (TSN News, 25 March
2010) and had to drastically reduce the powers of the Supreme Court and the Council of Judges to
overcome the collective resistance of judicial chiefs. Meanwhile, Poroshenko – the current presi-
dent – repeatedly called the 8700-strong judiciary a ‘mafia of judges’ (Tyzhden.Ua, 10 April 2015)
and a ‘caste of judges’ that hid behind the fence from the people (Korrespondent.Net, 4 June 2015;
BBC News, 3 June 2016; 5.Ua, 22 March 2017). Indeed, judges collectively sabotaged his two-year
long lustration – the screening and purging of corrupt government officials and those loyal to
Yanukovych – ‘because of both professional solidarity and the conflict of interests in courts’
(Telegraf, 14 May 2016). By the end of 2016, only 3% of judges (7 out of 246) had been lustrated
in contrast to 98% of other government officials (Novoe Vremya, 21 November 2016).
This repeated collective judicial recalcitrance surprises experts who argue that judicial corporat-
ism serves rather than resists the interests of powerful patrons in Ukraine (see, for example
D’Anieri, 2007; Kyselova 2014; Popova 2012, 2016a, 2016b, 2017). Many do not expect any col-
lective resistance because judges are too demoralized, afraid of assaults and distrusted. Indeed,
every third judge has quit or retired from the bench, and the public applauds shaming of judges by
holding them hostage in courthouses, placing them in garbage bins, and setting their cars on fire
(Hromadske Radio, 8 October 2016; Hromadske Radio, 27 May 2017). This elite and grassroots
shaming of judges also surprises those who expect that more political competition should lead to
more judicial independence (Helmke and Rosenbluth, 2009). Ukraine’s highly competitive system,
in which incumbents have been losing elections since 2004, has failed to produce an independent
judiciary. Yet, unexpectedly, by 2018, Ukraine held the highest number (15) of nationwide meet-
ings of judges among the post-Soviet countries and had 14 functioning associations of judges – the
same as the total number of associations of judges in the rest of the post-Soviet countries taken
together. In short, the dynamics of Ukraine’s judicial associationalism go against the theoretical
expectations of those who study Ukrainian politics and those who ignore the agency of judicial
networks. Therefore, exploring the growth and nature of judicial networks in Ukraine as a ‘deviant’
case study is essential for building a more complete theory of judicial clientelism.
Beers (2016) argues that some of these judicial networks have the potential to bring Ukraine
closer to the rule of law. Yet we know very little about how judicial networks protect their members
and resist the wishes of those at the top (Bakiner, 2016; Basabe-Serrano, 2015; Trochev and Ellett,
2014; Dressel et al., 2017) because existing studies of judicial politics in clientelist regimes rarely
place collective judicial autonomy outside the courthouse at the center of scholarly inquiry. What
are the nature and dynamics of collective judicial autonomy, defined as the judges’ collective abil-
ity to defend their interests through organizations, in clientelist regimes?
To address this question, I argue that networks of judges provide important political, financial
and symbolic benefits to rulers, judicial chiefs and ordinary judges in the context of clientelist
exchanges of concrete rewards and punishments. These networks tend to reflect power relations
within the judiciary: hierarchically organized networks make judicial chiefs even more powerful
while non-hierarchical networks may reduce the power of judicial chiefs and their political patrons
over rank-and-file judges. In broader patronal politics (Hale, 2015) more autonomous judicial
chiefs tend to either create their own patronal networks or join already existing ones instead of
championing the rule of law through integrity and impartiality. This may explain why competitive
clientelist regimes may feature one type of intra-judicial conflict (Bakiner, 2016), the one among
patronage-based networks of judges, yet fail to entrench judicial independence (Basabe-Serrano,
2015). Yet, under certain conditions, judicial chiefs as patrons of a clientelist judiciary (Basabe-
Serrano, 2015) may face another type of intra-judicial conflict, the one with rival non-hierarchical
judicial networks built on reputation rather than on the clientelist exchange of threats and favors.
Either of these intra-judicial conflicts may reconfigure power relations within the judiciary
To continue reading
Request your trial