Olena Halushka
On June 2,
the Verkhovna Rada adopted the amendments to the Constitution of Ukraine
regarding the judiciary.
Ukraine has never had an independent, honest judiciary in its first 25 years of existence. The consequences include no rule of law and deep public mistrust of the nation's 9,000 judges, who are seen as protecting corruption rather than punishing it. Foto by Courtesy
The
amendments were positively evaluated by both the Venice Commission and the
Council of Europe, laying the groundwork for comprehensive judicial
reform.
These
amendments represent merely a first step though, and to truly revolutionize
Ukraine’s graft-ridden judiciary it is required to pass detailed implementing
legislation, first piece of which – Law 4734 “On the Judiciary and the Status
of Judges” – was adopted simultaneously with Constitutional amendments.
Among the
positive changes provided for by the passed legislation, judicial expert at the
Centre for Policy and Legal Reform Roman Kuybida, mentions:
1. Simplification
of the administrative structure of the court system: transition from the
current four levels of courts to a three-tier judicial system composed of first
instance courts, courts of appeal and a newly established Supreme Court. Judges
of the latter shall be selected on a competitive basis. Moreover, once the
system is simplified, the cases will be considered more quickly.
2.
Bringing of fresh blood into the judiciary by opening competition for all
positions in the new Supreme Court to lawyers without previous judicial
experience.
3.
Increasing salaries of the judges to reduce the incentive for corruption and
attract lawyers from outside the current judicial system.
4.
Dismissing of the judges unable to pass a competency and ethics test or unable
to prove the legitimate origin of their assets.
5. Having
the judges declare any family members holding high-ranking civil service
positions and/or employed by courts, public defenders or prosecutors’ offices
to minimize conflicts of interest.
6.
Eliminating of judges’ immunity from criminal prosecution for corruption and
any other grave crimes.
7.
De-monopolization of the field of execution of court rulings by allowing
private enforcers to work alongside the governmental public enforcement
service.
8. Reduction
of political influence on the judges by barring the parliament and the
president from handling the issues of judges’ careers.
However,
at the same time the adopted legislation contains numerous shortcomings. Civil
society activists therefore believe thatthe Rada must quickly amend law 4734 to
correct a number of problems.
First, law
4734 did not allocate sufficient power to the new Public Council for
Professional Integrity. The Council is designed to allow legal experts outside
judiciary andcivil society to evaluate the ethics of judges on an ongoing basis
by gathering information about judges’ professional integrity submitting these
findings and the council’s opinion to the High Qualification Commission of
Judges.
Unfortunately
however, law 4734 only allocates the Public Council an advisory role, leaving
the HQCJ without any legal obligation to the findings and recommendations of
outside experts.
Given that
the HQCJ recently re-qualified eight out of 10 judges, whom members the new
National Anti-Corruption Bureau of Ukraine reasonably suspect of corruption,
activists fear the Public Council’sl ack of power creates an open loophole for
the old guard to protect corrupt judges.
In
addition, Law 4734 also created no mechanism for ensuring that the selection process
for appointing judges to the new Supreme Court is impartial and trusted by the
public.
The HQCJ
and the High Council of Justice – the bodies responsible for selection of
potential Supreme Court appointees – contain no representatives of the public while
also continuing to retain two members subject to lustration. Law 4734 must
therefore be amended to providethe Public Council with a legally binding role
into both the evaluation of existing judges’ ethics as well as input into the
selection of the Supreme Court and local judges.
Besides,
law 4734 permits the heads and the deputy heads of courts appointed during the
presidency of former President Victor Yanukovych to keep their offices for
another six years.
Although
the Constitution does not provide the president with decision-making power over
the selection of court heads and deputies, the bill allows the president to
sign certificates either directly or by proxy to fillthese positions. This
creates a risk that the old system of politicalinterference in the management
of the court system will be preserved. Eliminating this risk requires amending
law 4734 to remove any presidentialpower or influence over court heads and
deputy heads.
Finally,
to ensure irreversibility of punishment of grand corruption crimes it is
important to establish the Specialized Anti-Corruption Court, creation of which
is not properly addressed by the law.
According
to Anastasiya Krasnosilska, Anti-Corruption Action Center advocacy manager,
there are high chances that courts will fail to punish top officials following
NABU investigations.
If new
anti-corruption institutions are thus left fruitless, political leadership will
receive much wanted pretext to intervene or even close down NABU and
Specialized Anti-Corruption Prosecution.
Moreover,
the most important guarantee for fair trial in grand corruption cases is
political independence of anti-corruption judges, which can be achieved through
transparent selection process, conducted by a special independent panel with
members, nominated by international partners of Ukraine, having the right of
bloc voting.
Although
amending 4734 is critical, it is just a first step. After the Rada amends it,
additional implementing legislation remains needed to ensure the following
changes:
- Allow
attorneys to choose attorneys’ associations at their own discretion so as to
de-monopolize attorneys’ self-government.
- Empower
Ukraine’s citizens by significantly limiting the category of cases requiring an
attorney act as a representative.
- Regulate
the issues of legal education and access to the legal profession in line with
the European standards.
-
Determine the procedure of competitive selection of the prosecutor general and
the judges of the Constitutional Court, and change the procedure of
consideration of the constitutional complaints.
-
Introduce an effective model of the trial jury in criminal cases and introduce
this institute in commercial cases.
Clearly
this is an ambitious agenda, and even implementation of the adopted legislation
can meet a number of obstacles.
Activists
expect significant resistance to these changes within the judiciary itself,
which two years after Euromaidan contains small number of judges untainted by
corruption.
Despite
the scope of the challenge though, civil society reformers remain committed to
creating a fair and independent judiciary – Ukraine’s European ambitions
require nothing less.
Olena Halushka is the international relations manager at the Reanimation Package of Reforms, and can be followed on Twitter at @OlenaHalushka
No comments:
Post a Comment