Date of publication: 31 March 2014
Roman Marchenko, Attorney at Law, Senior Partner
With previous administration replaced and 2004 Constitution (bringing back the parliamentary-presidential republic) restored, politicians in Ukraine demonstrate willingness to embrace reforms, the judicial system being affected as well. Although MPs have already managed to restore parliament’s authority to appoint judges, a comprehensive judicial reform would require a number of laws to be passed by the Parliament, not all of which may be consistent with the interests of the new government.
First of all, judicial reform does not necessarily require the abolishment of all legislative novelties put in place by the previous administration. So, for example, introducing mandatory and transparent examinations for judicial candidates was an absolutely proper and progressive step. I personally know a number of incidents where these tests were failed by close relatives of government officials and political figures, who under the presidency of Leonid Kuchma would easily come to wear the judicial robe. This is definitely ac credit to the previous administration that should be preserved and further developed.
There are several focus areas in the framework of judicial reform as I see it. The mechanism for the appointment of judicial executives is first thing that has to be dealt with. As we know, previously presidents of court (chief judges) and their deputies were appointed by the President. Later on, this authority was encroached by the Judicial Panel, ending in the hands of the Superior Panel of Justice. Importantly, none of these mechanisms is consistent with the declared principles of judicial self-governance, since the very nature of appointment means that Themis servants were obliged to their appointers. The Superior Panel of Justice and the Executive Office of the President were the most recent powerhouses which the majority of court presidents had to count with. The only exception has been the mechanism of the Supreme Court where the president of the court is elected by judges. A similar mechanism was initially applied to Commercial Courts of Appeal, but after a while the government decided to strip the judges of these powers – after all, it is much harder to squeeze those who you don’t appoint or dismiss. I believe that today the appointment of presidents of court and their deputies should be effectively replaced with elections at all levels. Secondly, it is important to cut down the tenure of office or judicial executives to 1, tops 2 years. In this case, presidents of court will be unable to put pressure on judges in fear of not being re-elected.
Constitutional amendments are in question, too. Importantly, provisions relating to the Superior Panel of Justice should be reviewed in terms of its formation. Today, Panel members are nominated by the Supreme Council, the President, the Convention of Judges, the Convention of Defense Lawyers and the Public Prosecutions Service. In effect, the majority of Panel members have a stake in these or those judgments, while the principal task of the Panel is to address claims against judges. Hence, no surprise that in some instances judges are forced to rule in accordance with the Panel’s position or that of its members. So who are the “cold-minded, warm-hearted and clean-handed” professionals to man the Superior Panel of Justice? I believe these professionals should be sought among scholars, law professors and simply respected and decent lawyers who have retired from practice – no to be tempted into taking advantage of the appointment.
Today, calls are heard for the abolishment of commercial courts and other specialized tribunals. Although there is a utter need to clean up the system, mere liquidation of commercial courts does no promise anything good. One option is to establish commercial and other relevant divisions, or chambers, in the courts of general jurisdiction. I am sure that it is advisable to retain the specialization of judges who try disputes. For it is effectively impossible for one judge to try criminal, administrative and commercial disputes equally good.
In the wake of recent events, politicians call for lustration of the court system by dismissing all judges and appointing new ones. I agree that the judicial system is far from being ideal. But steps like these may end in a collapse. I stick to the evolutionary approach, i.e. allowing the system to cleanse itself. To achieve this, we need to adopt, for example, the Georgian experience. In Georgia, to eradicate corruption, the judiciary was offered «carrot and stick». A «carrot» is the increased wages and social benefits. In turn, law enforcement authorities were officially allowed to incite bribes for judges, while judges were obliged to report all offers of illegal benefits to the relevant agencies. If for some reasons, a judge would simply fail to report an offer of a bribe, law enforcers will have that Themis servant automatically dismissed from his post. This strategy has proved effective in Georgia, where the corruption of judges and government officials was legendary. I believe that there should be an effective punishment for crooked judges in Ukraine. The only thing required to make these mechanisms work is political will. And after these mechanisms are introduced, the judiciary will cleanse itself. Corrupt judges will start to be afraid and will be forced to leave. In the end, only those servants of Themis will remain who are ready to work honestly for governmental salaries only.
Qualification requirements for judicial candidates should be tightened, too. A candidate judge should have the necessary knowledge and life experience. With all respect, a 25-year-old judge is not one who should do justice and determine the fates of people. In this matter, Ukraine could be guided by the experience of the United Kingdom, as British system of justice is recognized one of the best in the world. There is no such notion as a “promoted judge”. Here at Ilyashev and Partners we run many cases in England, and our British colleagues just find it difficult to understand how a yesterday’s student could ever be allowed to decide the fates of people. There, judges are usually drawn from barristers of many years’ experience and good financial standing who for some reason decided to be robed and to work for public benefit. As a rule, these people are 50-60 years of age and have a solid life experience and a moral right to rule the destinies of their compatriots.
In Ukraine, it is not uncommon to see a yesterday’s student with no practical knowledge and competency appointed a judge – typically, a child, a close relative or even a mistress of an official or a political figure. In a few years, these “rulers of the destinies” become judges of high courts. I believe that under present conditions, a candidate judge must have been practicing law not less than 15 to 20 years in order to be appointed.
The new edition of the Criminal Procedure Rules passed by the previous administration is certainly a positive and requisite step forward. One of the most inspiring things is the requirement that only a licensed attorney can defend a suspects or the accused. The logic is obvious: where the freedom of a man is at stake, he should get high-quality defense. Law license offers at least some guarantee that the defendant will be represented by a knowledgeable and skilled counsel. Attorney-client privilege is no bad thing, too. However, we need to go further. So, for example, claims to specialized high courts and to the Supreme Court must be submitted – on behalf of the clients, of course – only by licensed lawyers or at least by someone with a degree in law. The logic is simple – these courts review the rulings made by the courts of original jurisdiction in terms of compliance with substantive and procedural law. Laymen are unable to prepare good claims on these matters.
I know I may be criticized over calls for restricted right to appeal to court. However, please remember that only trained and licensed drivers are allowed to drive – we have no problems with that. Assessments are done only by licensed professionals – no problem. Deeds certified by public notaries – no problem again. So why should we encourage those who produce to the court their true “masterpieces” not worth the paper they are written on? Besides, chances to success of self-qualified applicants are significantly less than if they retained a professional lawyer. So here it is: this legislative innovation would be a better guarantee of fair trial rather than a restriction of access to justice.
Now we have to understand one thing – whether those men of consequence are ready to go on with the implementation of this reform. And it is at this point that I become skeptical about it, because we are still talking about the same bureaucratic elite. Their goal is to keep the power and secure their status quo. Red tape is both a pillar of all existing governments and a layer hostile to any reforms. For MPs and government officials ingrown in their chairs, real changes in the judiciary are a true nightmare compromising their long-lasting plans for a comfortable future. Say, MPs are offer to adopt a set of measures which would deprive them of the customary benefit of using a hand-fed judge to send a journalist about his business or to make a popular opponent opt out of running for elections. “What for?” they ask and vote against. At the same time, no serious changes in the courts means no future for the country. I hope that protests in Kyiv’s Independence Square, Maidan, that led to the overthrow of the previous administration, will change the attitudes of the bureaucrats prompting them to embrace a more professional approach to lawmaking.