BY
8th September witnessed the Verkhovna
Rada complete the bureaucracy to allow more than 500
Ukrainian judges to leave behind their judicial
mandates.
That number however, has little directly to do with
any anti-corruption efforts, and much more to do with bureaucratic bottlenecks.
(Indirectly – some may have jumped knowing that they would otherwise be
pushed and/or jailed, or would otherwise have had to account for ill-gotten
wealth under the new e-declaration system, therefore deciding to bail out while
they could without having to complete any declarations.)
How did it reach the
point where 500 (plus) judges are released on the same day when almost all
leaving office are due to resignations and/or retirements?
In Ukraine, a judge
submitting his/her resignation is simply insufficient to relieve them of their
judicial mandate. The current (until 30th September 2016 when new
legislation takes effect) system makes resignation a particularly drawn out
affair.
In summary, currently, a
judge may resign for whatever reason (including reaching 65 years of age and
compulsory retirement) and that resignation must then be considered by the High
Council of Justice. Legislation prescribes that the HCJ has one month to
consider that resignation and then make their proposals to the parliament
and/or president to accept or deny. The law however, does not place any
timescale upon legislators or the executive to then complete the bureaucratic
necessities required by law to release those wishing to resign and/or retire,
and thus timely consideration simply does not occur.
The formal conclusion to
a resignation can – and often has – dragged on for several years.
To complicate matters,
should disciplinary matters arise during this time, the HRC has a duty to
investigate them – which may delay retirement and/or resignation whilst the
possibility of dismissal via disciplinary procedures remains unresolved.
Being a judge is Ukraine has been a little like
staying at the Hotel California – a judge can check out any time they like, but
they can never hardly ever leave swiftly.
The new law entering
into force with effect from 1st October lays down that resignations will be
accepted or refused within a calendar month of submission and without the need
for parliamentary and/or presidential functions in most cases – though this may
not be as seamless as it appears with some resignations and disciplinary
matters occurring before 30th September and thus under the current laws, but
being dealt with after 1st October and thus under the new laws. Minor
procedural hiccups may occur.
Nevertheless, a reader
is now aware that bureaucratic bottlenecks and backlogs there clearly have
been/are – but can more than 500 accrue between ad hoc procedural completion by the legislature and/or
executive?
The answer is clearly
yes – and there is an underlying political reason for it.
Very few judges have
been “allowed” to retire – or more precisely the bureaucracy has (deliberately)
not been completed since the “Revolution of Dignity” and the coming to power of
the current authorities. Thus such a large number were eventually
relieved of their mandates on 8th September in one administrative/bureaucratic
act. More than 2 years worth of retirements and resignations had built up
(with a few exceptions that have been dealt with more expeditiously).
The reason for not
completing the administrative functions over so many judges resignations and/or
retirements is obviously political. Perhaps even unofficial policy.
With the public
demanding judicial reform and lustration, why not release those wanting to
leave sooner and appease the constituency? The reason for retaining so many
judges against their will was presumably to allow for any disciplinary matters
to arise (or be instigated in homo
sovieticus style – here
is my offender, find me their crime) and throw the occasional judge to the
baying media and/or public if and when politically expedient whilst retaining
political power/influence over those that were retained despite wanting to
leave.
Indeed, the mass release
of 500 plus judges may not have occurred as it did if not for the rapidly
approaching new legislation coming into force in a few weeks that would enable
judicial releases without parliamentary and/or executive involvement
whatsoever.
An opportunity, albeit
forced, for some political grandstanding presented itself that could not be
wasted.
A political gesture of
publicly tossing out 500 plus judges (irrespective of the fact that the vast
majority had been trying to leave for a long time and their departure could no
longer be prevented from the month end anyway going unmentioned).
Of the 500 plus now
relieved of their judicial mandate, it is perhaps worthy of mentioning several
retirements and/or resignations. For example there were 7 retirements
from the Supreme Court. 21 from the Higher Administrative Court. 4
retirees from the Supreme Economic Court. 9 retirements from the Higher
Specialised Court for Civil and Criminal cases. 1 judge was relieved of
his post as he is currently in jail (and has been for a while) having been
found guilty of murder. A least 4 retiring judges were of an age that
they may indeed have started their learned careers when Adam was a boy.
Quite how lopsided so
many retirements and resignations have left the judicial system is unclear –
both by way of regional vacancies, and also whether any particular judicial
branch/specialism suffered more than others. Is it easier to fill
judicial vacancies in one specialisation than another? Or in one oblast
than another?
Cometh 1st October and
the ability to arrest judges without immunity preventing it, then further
judicial vacancies seem more than likely.
Whatever the case, a
brief explanation regarding 500 plus judges being relieved of their mandate on
the same day was probably necessary – and if not, then an explanation there is now
anyway. A last political grandstanding hoorah and huzzah regarding the
judiciary and an inferred (and generally unwarranted) perception of
“cleansing”.
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