Only baby steps are be­ing tak­ing to­ward cre­at­ing in­de­pen­dent, im­par­tial judges in Ukraine

Judges in Ukraine have his­tor­i­cally ruled the way that pros­e­cu­tors have told them to do. And pros­e­cu­tors have his­tor­i­cally fol­lowed politi­cians or­ders. How to undo this vi­cious cy­cle while pay­ing judges so poorly?

Kyiv Post Legal Quarterly - - Contents - By Mariana Antonovych [email protected]

Ukraine has un­der­es­ti­mated the im­por­tance of cre­at­ing an in­de­pen­dent ju­di­ciary since its very in­de­pen­dence. “In Soviet times, there was no sep­a­ra­tion of pow­ers,” Va­syl Kisil, se­nior part­ner at Vasil Kisil & Part­ners told the Kyiv Post. While cul­ti­va­tion of ex­ec­u­tive and leg­isla­tive branches took six years, hav­ing a ju­di­ciary based on rule of law never made it on the agenda.

As a re­sult, Ukraine’s Con­sti­tu­tion has no men­tion on the right to fair trial by an in­de­pen­dent and im­par­tial tri­bunal, while judges still de­fer to pros­e­cu­tors, es­pe­cially in crim­i­nal cases.

Sergiy Smirnov from Sayenko Kharenko law firm be­lieves the law on fair trial, in force since March 29, fi­nally launched some pro­gres­sive nov­el­ties.

The law in­tro­duces a public pro­file of a judge to in­clude all pro­fes­sional in­for­ma­tion. It obliges judges to de­clare their prop­erty, rev­enues and ex­penses. It also ex­pands grounds for dis­ci­pline, ac­cord­ing to Kostyan­tyn krasovsky, sec­re­tary of the pres­i­den­tial ju­di­cial re­form coun­cil.

In ad­di­tion, judges must re­port any crim­i­nal in­tru­sion to in­flu­ence or pres­sure them to law en­force­ment and other mem­bers of the ju­di­ciary. But these changes are not enough. At least four groups are in­volved in ap­point­ing judges – High Qual­i­fi­ca­tion Com­mis­sion of Judges, High Coun­cil of Jus­tice, the pres­i­dent and Par­lia­ment.

Af­ter a can­di­date suc­cess­fully com­pletes a com­pe­ti­tion, a qual­i­fi­ca­tion com­mis­sion rec­om­mends him/her to High Coun­cil of Jus­tice. Un­less the coun­cil finds a vi­o­la­tion of pro­ce­dure, it in­tro­duces a can­di­date to the pres­i­dent, who ap­points judges for five-year term.

The Verkhovna Rada ap­points judges for life, with the High Coun­cil of Jus­tice be­com­ing a trustee of ju­di­cial in­de­pen­dence and pro­fes­sion­al­ism with dis­ci­plinary pow­ers.

But pol­i­tics in­trudes too of­ten and too deeply with so many out­side bod­ies pick­ing the coun­cil’s mem­bers.

The Par­lia­ment may al­ter the com­po­si­tion of the High Coun­cil of Jus­tice in au­tumn, a need un­der­scored by the coun­cil’s in­abil­ity to do its job from April 11, 2014, un­til June 9 of this year.

As early as 2012, two years be­fore be­com­ing

prime min­is­ter, Arseniy Yat­senyuk wanted to cut out the Gen­eral Pros­e­cu­tor’s Of­fice and the pres­i­dency from the se­lec­tion.

Some fa­vor re­plac­ing the mul­ti­ple ju­di­cial bod­ies with one ad­min­is­tra­tive en­tity.

Va­len­tyna Sy­mo­nenko, head of the Coun­cil of Judges, says Ukraine needs a sin­gle au­ton­o­mous au­thor­ity to rep­re­sent the ju­di­cial branch and pro­vide ac­count­abil­ity to the gov­ern­ment.

Con­tro­ver­sial pow­ers of the pres­i­dent to liq­ui­date courts and trans­fer judges to another court is the other side of a coin.

David Vaughn, the chief of party of the USAID Ukraine Fair Jus­tice Pro­ject wants to elim­i­nate pres­i­den­tial pow­ers to liq­ui­date court and trans­fer judges. “This is some­thing Ukraine has to get rid of by amend­ing the Con­sti­tu­tion,” Vaughn said.

Volodymyr Kravchuk, a judge of the Lviv Dis­trict Ad­min­is­tra­tive Court, said the le­gal rea­sons for re­mov­ing judges are too vague, al­low­ing for the dis­missal of “al­most any po­lit­i­cally un­de­sir­able judge.”

But per­haps noth­ing will im­prove un­til judges are paid ad­e­quately and shielded from po­lit­i­cal pres­sure with life­time ap­point­ments.

“These are the guar­an­tees which give judge an in­de­pen­dence to de­cide the case ac­cord­ing to law and Con­sti­tu­tion, re­gard­less of Par­lia­ment, gov­ern­ment or pres­i­dent’s pref­er­ences,” Bo­hdan Futey, a se­nior fed­eral judge for the United States Court of Fed­eral Claims told the Kyiv Post.

There are many other ar­eas that re­quire im­prove­ment, in­clud­ing avoid­ing ex-parte com­mu­ni­ca­tion. In Ukraine, “judges have meet­ings with one party in ab­sence of another one. This should never be a case,” Futey added.

What’s needed, how­ever, is a com­pre­hen­sive ap­proach rather than patch­ing holes, Ev­gen Kubko from Squire Pat­ton Boggs said. “The ju­di­cial re­form must be ac­com­pa­nied by the re­form of law en­force­ment and ad­vo­cacy and based on the prin­ci­ple of checks and bal­ances,” Kubko said.

Judges his­tor­i­cally do what pros­e­cu­tors want in crim­i­nal cases and have the rep­u­ta­tion of selling their rul­ing to the high­est or most po­lit­i­cally well-con­nected bid­der in civil cases. Hopes for im­prove­ment are not high, con­sid­er­ing the av­er­age judge's salary is Hr 18,000, or $830, a month.

The av­er­age monthly salary for most judges is more than Hr 18,000, or roughly $830, but it’s not high enough to elim­i­nate cor­rup­tion within the ju­di­ciary. “You can keep it. I just re­ceived a bribe – no con­sult­ing fee – that is 1,000 times...

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