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-Salkom International Association 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.
Kyiv Post’s legal affairs reporter can be reached at [email protected]
