An­ders As­lund: How to re­form pros­e­cu­tors and ju­di­cial sys­tem

Kyiv Post Legal Quarterly - - Contents - An­ders As­lund

Ukraine’s ju­di­cial sys­tem, in­clud­ing the pros­e­cu­tor’s of­fice, is in dire need of re­form. Since the fall of Pres­i­dent Vik­tor Yanukovych on Feb. 22, 2014, the mal­func­tion­ing of the pros­e­cu­tor’s of­fice has been noth­ing but baf­fling. No ac­tion has been taken on the many bil­lion-dol­lar em­bez­zle­ment cases that have been ex­posed in the media. The worst of­fend­ers have fled to Rus­sia. The pop­u­lar ex­pla­na­tion is that they have paid pros­e­cu­tors to close their cases, which ap­pears all too plau­si­ble. Only on Jan. 12 were Yanukovych and a score of his top ac­com­plices fi­nally de­clared wanted for or­ga­nized crime by In­ter­pol.

Pros­e­cu­tors and judges are both ex­ces­sively le­nient, rais­ing ques­tions about whom they may be pro­tect­ing. At present, Ukraine has 10,279 judges and 20,367 pros­e­cu­tors. The al­most unan­i­mous pop­u­lar view is that they are all cor­rupt.

An ex­am­ple il­lus­trates the cor­rup­tion in the sys­tem: In 2007 a Con­sti­tu­tional Court judge was caught red-handed ac­cept­ing a bribe of $12 mil­lion (of­fi­cially a “con­sul­tancy fee” to her re­tired mother). Pres­i­dent Vik­tor Yushchenko sacked her, but Prime Min­is­ter Vik­tor Yanukovych re­in­stated her, claim­ing that the pres­i­dent had ex­ceeded his le­gal au­thor­ity.

Ukraine has an in­de­pen­dent High Coun­cil of Jus­tice that ap­points judges, but sev­eral in­sti­tu­tions that ap­point its mem­bers are con­sid­ered per­va­sively cor­rupt, such as those rep­re­sent­ing judges, lawyers and le­gal scholars, which each ap­point three of its 20 mem­bers. Cor­rupt lawyers and judges should not be al­lowed to reap­point one another. In­sti­tu­tions that ap­point mem­bers of the High Coun­cil of Jus­tice should be ei­ther purged or pre­vented from ap­point­ing judges.

On Oct. 14, the par­lia­ment adopted a new law on pros­e­cu­tion, which was an im­por­tant first step and one of the Euro­pean Union con­di­tions that Yanukovych re­fused to ful­fill. It sought to re­duce the power of the pros­e­cu­tors to the norm in de­vel­oped so­ci­eties. It took away the pros­e­cu­tors’ gen­eral over­sight func­tion, which was a Soviet in­her­i­tance that ren­dered them su­pe­rior to judg- es. It elim­i­nated their right to in­ter­fere in the lives of Ukrainian cit­i­zens and busi­nesses. Pros­e­cu­tors can no longer con­duct pre­trial in­ves­ti­ga­tions, which are now sup­posed to be han­dled by a state in­ves­ti­ga­tion bureau yet to be cre­ated. The qual­i­fi­ca­tions to be­come a pros­e­cu­tor are sup­posed to be­come rig­or­ous and re­cruit­ment trans­par­ent. This law amended no fewer than 51 laws and 10 le­gal codes.

In the pre­ced­ing week, the Par­lia­ment adopted amend­ments to the Crim­i­nal Code and the Crim­i­nal Pro­ce­dural Code to bring to jus­tice the na­tion’s for­mer lead­ers, who have fled the coun­try and to con­fis­cate their prop­erty. In a next step, Poroshenko signed a de­cree to form a coun­cil for ju­di­cial re­form.

To ac­com­plish these goals, Ukraine needs as­sis­tance, which the Euro­pean Union, the Coun­cil of Europe, Canada or the United States should con­sider pro­vid­ing.

Ini­tially the High Coun­cil of Jus­tice could be made up ex­clu­sively of qual­i­fied Ukrainian-speak­ing lawyers, judges and le­gal scholars fom abroad, for ex­am­ple, Canada, the United States and Europe. They should ap­point new judges from the top down, draw­ing on younger Ukrainian lawyers. Af­ter the corps of judges has been built, the High Coun­cil of Jus­tice could be com­posed anew on the lines of the cur­rent Con­sti­tu­tion.

An­ders As­lund is the au­thor of “Ukraine: What went wrong and how to fix it.” The book is pub­lished by the Peter­son In­sti­tute for In­ter­na­tional Eco­nom­ics.

Ukraine has 10,279 judges and 20,367 pros­e­cu­tors. The al­most unan­i­mous pop­u­lar view is that they are all cor­rupt.

Ac­tivists on June 17 hold ban­ners out­side Par­lia­ment to protest the pro­posed sub­servience of the Na­tional Anti-cor­rup­tion Bureau to the gen­eral pros­e­cu­tor.

Newspapers in English

Newspapers from Ukraine

© PressReader. All rights reserved.