Alexey Kot: Ukraine’s courts aren’t as bad as crit­ics claim

krainian courts are far from per­fect, but the crit­i­cism they face is more than they de­serve. That un­pop­u­lar opinion be­longs to Ukrainian lawyer Alexey Kot, who has spent three years as a mem­ber of the Ju­di­cial Re­form Coun­cil of Ukraine, an ad­vi­sory body f

Kyiv Post Legal Quarterly - - Contents - By Veronika Melkozerova melkozerova@kyivpost.com

Ujudge the re­form un­til the new Supreme Court starts work­ing,” he says.

The Kyiv Post met with Kot on Sept. 19, a few days be­fore the re­sults of the com­pe­ti­tion of judges to the New Supreme Court were of­fi­cially re­leased. How­ever, the names of the top 120 can­di­dates were al­ready known.

The re­sult is a suc­cess, ac­cord­ing to Kot, with 120 "in­ter­est­ing can­di­dates.”

That’s not the way that civil so­ci­ety and Ukraine’s Western part­ners see it. The U.S. Em­bassy in Ukraine said that con­cerns re­main about the in­tegrity of some of the se­lected judges. Some 25 per­cent of the can­di­dates were re­jected by the Pub­lic In­tegrity Coun­cil, a

civil so­ci­ety body that vet­ted judges, be­cause they had made con­tro­ver­sial rul­ings or be­cause of ev­i­dence of cor­rup­tion.

More­over, it’s still not clear when the new Supreme Court will be formed. Just as the in­ter­view with Kot was tak­ing place, par­lia­ment was con­sid­er­ing the 3,000 amend­ments to the Ju­di­cial Code needed for the new Supreme Court to func­tion – and then it failed to ap­prove them.

“It is a long-term process that needs a lot of changes in the leg­is­la­tion. But our so­ci­ety is tired of wait­ing,” Kot says.

Judges dis­cred­ited

The pro­fes­sion is so dis­cred­ited by con­tro­ver­sial rul­ings and per­cep­tions of cor­rup­tion and po­lit­i­cal sub­servience that it dis­cour­ages new peo­ple from en­ter­ing the field, ac­cord­ing to Kot. And Ukrainian judges do in­deed have a bad rep­u­ta­tion. The courts are of­ten sym­pa­thetic, to put it mildly, to top of­fi­cials who are pros­e­cuted for cor­rup­tion, such as ex-state Fis­cal Ser­vice di­rec­tor Ro­man Nasirov or ex-law­maker Mykola Mar­ty­nenko. Such cases are turned down by judges, fall apart in court or are stalled sim­ply be­cause a judge fails to turn up for work.

The pro­fes­sion took the big­gest hit dur­ing the Euromaidan Rev­o­lu­tion, be­fore the over­throw of Pres­i­dent Vik­tor Yanukovych on Feb. 22, 2014, when judges con­victed dozens of pro­test­ers on flimsy ev­i­dence.

The ju­di­cial re­form started af­ter the Euromaidan Rev­o­lu­tion is sup­posed to bring in a new gen­er­a­tion of judges, push out the cor­rupt ones and si­mul­ta­ne­ously restruc­ture the sys­tem.

Kot praised the coun­try’s switch­ing from a four-stage court sys­tem into a three-stage one. Be­fore 2016, Ukraine had first in­stance courts, courts of ap­peal, high spe­cial courts and the Supreme Court. Today, there are only lo­cal courts, courts of ap­peal and the Supreme Court.

The re­vamp­ing of the Supreme Court has been in the spot­light in the past sev­eral months, es­pe­cially when the Pub­lic In­tegrity Coun­cil, 25 per­cent of the 120 win­ners had failed a vetting process but were still se­lected any­way.

When asked about it, Kot says that “one should look at the glass as be­ing half-full, not half-empty.”

“Yes, we in­deed have a lot of can­di­dates who al­ready worked in var­i­ous Ukrainian courts. But we also have a lot of le­gal aca­demics and lawyers, who, if ap­proved, will play an im­por­tant part in the new Supreme Court,” Kot says.

While 120 can­di­dates were se­lected, the High Coun­cil of Jus­tice can choose to not ap­prove all of them: Just 65 judges are enough for the court to func­tion.

As for civil so­ci­ety’s re­ac­tion, Kot thinks that the Pub­lic In­tegrity Coun­cil op­posed the judges not be­cause they found all of them to be cor­rupt, but be­cause the ac­tivists had a dif­fer­ent vi­sion of ju­di­cial re­form. They didn’t want any judges that al­ready worked in Ukrainian courts at all, he says.

Kot says that at first the idea was for rad­i­cal ju­di­cial re­form: fire ev­ery­body, raze the en­tire sys­tem and then cre­ate a new one out of the ashes.

“But this ap­proach isn’t ac­cept­able for var­i­ous rea­sons. So we de­cided to change it. In­stead of fir­ing ev­ery­body we guar­an­teed that there would be a tough com­pe­ti­tion, a fil­ter for the peo­ple who want to be­come new Supreme Court judges,” Kot says.

Too crit­i­cal Kot says that the Ukrainian so­ci­ety and of­fi­cials “have got used to blam­ing judges for ev­ery­thing.”

“I’m not try­ing to pro­tect them. But peo­ple for­get there are sev­eral par­tic­i­pants in the trial process: the de­fender, the pros­e­cu­tor, and the judge,” says Kot.

He says that some­times pros­e­cu­tors are lazy in their prepa­ra­tions for the court and com­mit pro­ce­dural vi­o­la­tions when gath­er­ing ev­i­dence.

“And what is a judge sup­posed to do when he or she un­der­stands that the de­fen­dant is a crim­i­nal, but a pro­fes­sional de­fender points out the pros­e­cu­tor’s mis­takes dur­ing the process? The sim­plest thing to do is to blame the judge,” Kot says.

Farce in­stead An­other fac­tor that discredits today’s jus­tice sys­tem is the un­pro­fes­sion­al­ism of state of­fi­cials, ac­cord­ing to Kot.

Typ­i­cal man­i­fes­ta­tions are the emo­tional yet un­founded pub­lic ac­cu­sa­tions that top of­fi­cials in the jus­tice and law en­force­ment sys­tem make. For ex­am­ple, In­te­rior Min­is­ter Arsen Avakov and Pros­e­cu­tor Gen­eral Yuriy Lut­senko are care­less in their pub­lic state­ments: They of­ten re­fer to ac­cused par­ties as be­ing guilty long be­fore their trial, and make “emo­tional assess­ments about de­fen­dants’ morals.”

Kot says that of­fi­cials do this be­cause it wins them ad­mi­ra­tion from the pub­lic. “Oth­er­wise they wouldn’t show off,” Kot says. “Peo­ple get the lead­er­ship that they de­serve.”

So it is no won­der that when it comes to court pro­ceed­ings, un­pro­fes­sion­al­ism is also rife.

“We see peo­ple hid­ing un­der blan­kets, and de­tec­tives try­ing to is­sue no­tices of sus­pi­cion while the sus­pect pre­tends to be un­con­scious,” Kot says, re­fer­ring to the ar­rest of Nasirov, the for­mer head of the State Fis­cal Ser­vice, in March.

“This farce can hardly be called jus­tice.”

NEWS ITEM: Pres­i­dent Petro Poroshenko asked visi­tors of Yalta Euro­pean Strat­egy an­nual meet­ing in Kyiv on Sept. 15 to raise their hands if their coun­tries had a spe­cial anti-cor­rup­tion court. His point was that no ma­jor Western coun­tries had anti-cor­rup­tion courts, and thus Ukraine can do with­out one as well. “The truth is that in our na­tion, ev­ery court is an anti-cor­rup­tion court,” replied for­mer U.S. Sec­re­tary of State John Kerry, who was present at the meet­ing.

Alexey Kot, An­tika Law Firm man­ag­ing part­ner and the mem­ber of the Ju­di­cal Re­form Coun­cil of Ukraine speaks dur­ing the in­ter­view with the Kyiv Post in his of­fice in Kyiv on Sept.19. (Oleg Pe­tra­siuk)

He is wor­ried that con­stant crit­i­cism could dis­rupt the work of the new Supreme Court. Pros­e­cu­tor Gen­eral Yuriy Lut­senko speaks to jour­nal­ists af­ter read­ing a no­tice of sus­pi­cion for ex-pres­i­dent Vik­tor Yanukovych in a trea­son case on Nov. 28, 2016. (Volodymyr Petrov)

Who knows a coun­try with no anti-cor­rup­tion court and ubiq­ui­tous cor­rup­tion that starts with a “U”?

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