How To Fix Ukraine’s Bro­ken Le­gal Sys­tem

Kyiv Post Legal Quarterly - - Front Page - By Brian Bon­ner [email protected] Kyiv Post chief editor Brian Bon­ner can be reached at [email protected] com

Anum­ber of lawyers and oth­ers who have looked at Ukraine’s ar­chaic and dys­func­tional le­gal sys­tem have come to one in­escapable con­clu­sion: It needs to be re­placed with one that al­lows Ukraine to be­come a rule-of-law democ­racy with a mod­ern econ­omy.

An in­cre­men­tal ap­proach, they say, will not fix the fun­da­men­tal flaws.

Irina Paliashiv­ili, founder of the RULG Le­gal Group, leads a drive among law firms in Ukraine to find so­lu­tions to the le­gal prob­lems, out­lined in pe­ri­odic “white pa­pers,” the next ver­sion of which will be pub­lished in au­tumn. Her con­clu­sion? “Throw ev­ery­thing out, re­place it with some­body else’s laws,” Paliashvili said. “Ukraine’s le­gal sys­tem and ju­di­cial sys­tem need ex­ter­nal man­age­ment. Find the most mod­ern sys­tem in Euro­pean coun­tries. I have no trust in the cur­rent ju­di­cial sys­tem, which is ac­tu­ally be­ing re­in­forced as far as I can see. It’s be­yond fix­ing.”

Paliashvili, who also chairs the le­gal com­mit­tee of the U.s.-ukraine Busi­ness Coun­cil, said that Ukraine is stuck in Soviet times in the le­gal sphere.

“What we have is a Soviet-based sys­tem and, on top of that piles and piles of spe­cial in­ter­est leg­is­la­tion of very bad qual­ity. Over 20-some­thing years, there have been piles and piles of these cor­rupt schemes in­cor­po­rated in the le­gal sys­tem with zero care to­wards the peo­ple, to­wards the busi­nesses,” Paliashvili said. “That also ex­plains the in­com­pre­hen­si­ble lan­guage of the leg­is­la­tion. When you find out why it’s writ­ten so, you un­der­stand it’s just another smoke­screen be­hind another cor­rup­tion scheme.”

Daniel Bi­lak, man­ag­ing part­ner of the CMS Cameron Mckenna law firm in Kyiv, also said that he doesn’t think Ukraine’s gov­ern­ment is ca­pa­ble of re­form­ing from within.

“We keep frag­ment­ing the is­sues,” Bi­lak said. “Some­body is talk­ing about ju­di­cial re­form, some­one else is talk­ing about re­form of the pros­e­cu­tor. No­body is talk­ing about re­form of le­gal ed­u­ca­tion. All of it is one ac­tual unit.”

Bi­lak said that Pres­i­dent Petro Poroshenko’s ju­di­cial re­form strat­egy, out­lined on his of­fi­cial web­site on May 27, will only per­pet­u­ate the ex­ist­ing sys­tem.

“The latest de­cree of the pres­i­dent plays around the edges of re­form,” Bi­lak said. “It keeps the ex­ist­ing struc­ture and just makes the ex­ist­ing sys­tem more trans­par­ent. This is not the whole­sale in­sti­tu­tional re­form Ukraine needs.”

Ju­di­cial re­form is cru­cial to the econ­omy. “You can­not have a mar­ket econ­omy un­less you have pro­tec­tion of prop­erty rights. Oth­er­wise you will al­ways have cor­rup­tion. These rights are the only lever­age that busi­ness has against the ad­min­is­tra­tive re­sources of the state. It pro­vides a check on gov­ern­ment,” Bi­lak said.

Mykola Stet­senko, man­ag­ing part­ner at Avel­lum Part­ners in Kyiv, fa­vors a more in­cre­men­tal ap­proach.

“It’s not that we need to can­cel all the laws in Ukraine and start over,” Stet­senko said. “It’s im­pos­si­ble and we don’t need to do it.” Stet­senko cited im­prove­ments in tax­a­tion,

dereg­u­la­tion and steps to­wards “cleans­ing the ju­di­ciary and fir­ing those judges who were ab­so­lutely cor­rupt” as signs of progress.

While Paliashvili, Bi­lak and Stet­senko are fo­cused on civil law, the crim­i­nal jus­tice sys­tem is also a mess, said Va­len­tyna Te­ly­chenko, a Kyiv lawyer who has rep­re­sented My­roslava Gon­gadze, the widow of slain jour­nal­ist Ge­orgiy Gon­gadze, and ex-prime Min­is­ter Yu­lia Ty­moshenko.

“The whole so­ci­ety is sick,” Te­ly­chenko said. “We have pros­e­cu­tors who had un­lim­ited au­thor­ity and judges who worked with pros­e­cu­tors and who also had un­lim­ited au­thor­ity. It’s very deep in our blood.”

Paliashvili agreed, con­clud­ing: “Dur­ing the Soviet pe­riod, what­ever real jus­tice peo­ple had in their men­tal­ity was elim­i­nated the hard way, by throw­ing mil­lions of peo­ple in the gu­lag and by us­ing fake in­sti­tu­tions and fake pre­tenses. In ev­ery per­son, there’s com­mon sense and in­tel­li­gence, but this is not trans­lated into leg­is­la­tion and the le­gal sys­tem. What we have now is to­tally im­posed on the peo­ple. It’s all the same clique. They are try­ing to save the sys­tem.”

Here’s their break­down of some of the hot-but­ton is­sues and pos­si­ble so­lu­tions:

Es­to­nia and Ge­or­gia as mod­els: “Es­to­nia did e-gov­ern­ment. What they have in Es­to­nia is much more ad­vanced. Why not take some­thing which is sev­eral steps for­ward? What Ge­or­gia can of­fer is an ex­am­ple of a suc­cess­ful anti-cor­rup­tion fight and en­force­ment as well. If you com­bine those two ex­am­ples, you will throw Ukraine into the strato­sphere. It’s now in the stone age,” Paliashvili said.

Fewer but bet­ter – and en­forced – laws are needed: “When the sys­tem doesn’t want to do some­thing, it be­comes ex­tremely le­gal­is­tic and ex­tremely tech­ni­cal. The sys­tem serves (politi­cians) very well. It lets them do it. ‘The tapes must be orig­i­nal’ and ‘on this doc­u­ment, the cor­po­rate seal should be on the right side and not on the left side.’ Then when the sys­tem doesn’t want to see in­fringe­ments, it ig­nores them,” Paliashvili said.

Can­celling the com­mer­cial code: Bi­lak and Paliashvili are among the lawyers crit­i­cal of con­flict­ing codes – civil and com­mer­cial – that reg­u­late eco­nomic ac­tiv­ity. They want the Soviet-style com­mer­cial code scrapped and the more pro­gres­sive civil one kept.

“The sim­ple thing is to can­cel the com­mer­cial code. It’s use­less,” Paliashvili said. “For cor­rupt judges, it’s a dream come true. If they can­not make a de­ci­sion based on the civil code, they can is­sue one based on the com­mer­cial code. For busi­ness, , it’s a night­mare. You have two funda- men­tally con­flictin con­flict­ing doc­u­ments reg­u­lat­ing the ba­sis of en­tre­pre­neur­ial ac­tiv­i­ties.”

Pros­e­cu­tors:Pros­e­cu­tors Pros­e­cu­tors have too much power. “What Ukra Ukraine needs is a state pros­e­cu­tion ser­vice that re rep­re­sents the in­ter­ests of the state in crim­i­nal ma mat­ters,” Bi­lak said. “What we have is very broad inves in­ves­tiga­tive and over­sight pow­ers that go way be be­yond what a proper pros­e­cu­tion ser­vice in a democ­racy has,” Bi­lak said. Im­punity:Im Ukraine’s politi­cized sys­tem means in­no­cent peo­ple go to jail

an and the guilty go free. “Un­til we see ac­tu­ally crim­i­nal in­ves­ti­ga­tions that re­sult in tri­als and con­vic­tions, not much will change,” Stet­senko said.

Judges: “The cur­rent judges are ba­si­cally black­mail­ing so­ci­ety, say­ing only they are ex­pe­ri­enced and only they know how to op­er­ate this le­gal sys­tem,” Paliashvili said. “If you throw out the old sys­tem, they are no longer rel­e­vant. They can­not back­mail any­body. A mod­ern sys­tem will re­quire new mod­ern judges. You can­not re­place one with­out re­plac­ing the other. Both have to go.”

On ab­sence of jury tri­als: Politi­cians, through ap­pointed pros­e­cu­tors and oth­ers in the le­gal sys­tem, don’t want to give up con­trol of who goes to jail and who goes free, ir­re­spec­tive of ev­i­dence. Te­ly­chenko said that Gen­eral Pros­e­cu­tor Vik­tor Shokin, while more com­pe­tent than pre­de­ces­sors who staffed the pros­e­cu­tion ser­vice with po­lit­i­cal cronies, re­mains Soviet at core. And that doesn’t bode well for jury tri­als in the fu­ture. “He is ab­so­lutely sure that a judge should de­cide as the pros­e­cu­tor says,” Te­ly­chenko said.

At left, lawyer Va­len­tyna Te­ly­chenko speaks with Euge­nia Ty­moshenko, daugh­ter of ex-prime Min­is­ter Yu­lia Ty­mochenko, and lawyer Ser­hiy Vlasenko in in the court­room of the Euro­pean Court of Hu­man Rights in Stras­bourg, France, on Aug. 28, 2012. (UNIAN)

Lawyer Irina Paliashvili says Ukraine should adopt the best laws from other na­tions to re­place its cor­rupt Soviet sys­tem.

Mykola Stet­senko

Daniel Bi­lak

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