Judiciary of Ukraine

Ukraine
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The judicial system of Ukraine is outlined in the 1996 Constitution of Ukraine.[1] Before this there was no notion of judicial review nor any Supreme Court since 1991's Ukrainian independence.[2] Inherited most of its principles from the court system of the Soviet Union and the Ukrainian SSR, the court system of Ukraine is slowly being restructured.

Although judicial independence exist in principle, in practice there is little separation of juridical and political powers. Judges are subjected to pressure by political and business interests.[3] Ukraine's court system is widely regarded as corrupt.[4]

Although there are still problems with the performance of the system, it is considered to have been much improved since the last judicial reform introduced in 2002. The Supreme Court is regarded as being an independent and impartial body, and has on several occasions ruled against the Ukrainian government.

Courts

Ukrainian courts enjoy legal, financial and constitutional freedom guaranteed by measures adopted in Ukrainian law in 2010.

The judicial system of Ukraine consists of four levels of courts of general jurisdiction, as follows:[5]

Local Courts

Courts of appeal

High courts with specialized jurisdiction

The rulings of the High (sometimes translated as Supreme) Administrative Court of Ukraine can not be appealed.[6]

The Supreme Court of Ukraine

The Klov Palace is home to the Supreme Court of Ukraine.

The Constitutional Court of Ukraine

Officers

Judges

Judges are appointed by presidential decree for a period of five years, after which Ukraine's Supreme Council confirms them for life in an attempt to insulate them from politics. Judges are protected from dismissal (save in instances of gross misconduct). Immunity from prosecution is guaranteed to judges.[7] Ukraine has about 8,000 judges.[8]

Prosecution

Lay assessors

Ukraine has no jury system; most cases are heard by either a single judge or two judges accompanied by assessors.[8]

Administration

The Congress of Judges is the highest body of judicial self-government.[9]

The Council of Judges is responsible for the enforcement of the decisions of the Congress and their implementation in the period between congresses, and decides on the convocation of the Congress.[10]

The State Judicial Administration provides organizational support of the judiciary and represents the judiciary to the Cabinet of Ministers and the Verkhovna Rada.[11]

The High Judicial Qualifications Commission of Ukraine conducts the selection of judicial candidates, submits to the High Council of Justice recommendations on the appointment of a candidate for the subsequent introduction of the submission of the President of Ukraine, makes recommendations on the election of a permanent post, and conducts disciplinary proceedings including dismissal.[12]

The High Council of Justice "is a collective independent body that is responsible for formation of the high-profile judge corpus capable of qualified, honest and impartial exercise of justice on a professional basis; and for making decisions regarding violations by judges and procurators of the requirements concerning their incompatibility and within the scope of their competence of their disciplinary responsibility". Three members of the council are automatically assigned for holding the following positions: Chairman of the Supreme Court, Minister of Justice, and Prosecutor General. The other 17 members are elected for a period of six years. The council consists of 20 members. It was created on January 15, 1998.[13]

Law

The 2010 Judicial System and Status of Judges Act is the legal basis for the organization of the judiciary and the administration of justice in Ukraine.[14]

Procedure

Since January 1, 2010 it is allowed to hold court proceedings in Russian on mutual consent of parties. Citizens, who are unable to talk Ukrainian or Russian are allowed to use their native language or the services of a translator.[15]

Analysis and criticism

Corruption

A Ukrainian Ministry of Justice survey of Ukrainians in 2009 revealed that only 10 percent of respondents trusted the national court system. Less than 30 percent believed that it was possible to receive a fair trial in Ukraine.[16]

Ukrainian politicians and analysts have described the system of justice in Ukraine as "rotten to the core" and have complained about political pressure put on judges and corruption.[16][17][18]

Ukrainian judges have been arrested while taking bribes.[19] Independent lawyers and human rights activists have complained Ukrainian judges regularly come under pressure to hand down a certain verdict.[8]

In 2013, a Transparency International Global Corruption Barometer report showed that 66% of the Ukrainian public considered the judiciary to be the most corrupt institution in the country.[20] Twenty-one percent of Ukrainians admitted they had paid bribes to judicial officials themselves.[20]

Conviction rate

Court judges maintained a 99.5 percent conviction rate from 2005 till 2008, equal to the conviction rate of the Soviet Union.[16] In 2012 this number was 99.83 percent.[21] Suspects are often incarcerated for long periods before trial.[16]

Flaws in the system

Prosecutors in Ukraine have greater powers than in most European countries.[22] According to the European Commission for Democracy through Law "the role and functions of the Prosecutor’s Office is not in accordance with Council of Europe standards".[22]

Ukraine has few relevant corporate and property laws; this hinders corporate governance.[23] Ukrainian companies often use international law to settle conflicts.[1] Ukraine recognizes the verdicts of the European Court of Human Rights.[1]

Council of Europe Commissioner for Human Rights Thomas Hammarberg stated in February 2012 that systemic deficiencies in the functioning of the Ukrainian judicial system seriously threatened human rights.[24]

On July 25, 2012 a mass protest march took place from early morning to about 16:00 across the city of Kiev of about 3,500 participants mostly of whom were sports fans of FC Dynamo Kyiv.[25][26] The event took place soon after a decision was adopted by the Holosiivsky District Court of Kiev City on the 2011-12 nationally renown Pavlichenko criminal case convicting a family of Pavlichenkos (father and son) to long-term sentence for killing a judge of the Shevskivsky District Court of Kiev City Serhiy Zubkov.[27] On 24 February 2014 the Verkhovna Rada (Ukraine's parliament) decided to release all political prisoners, including father and son Pavlichenko.[28]

Reform

Ukraine's judicial system was inherited from that of the Soviet Union and the former Ukrainian SSR. As such, it had many of the problems which marred Soviet justice, most notably a corrupt and politicised judiciary. Lawyers have stated trial results can be unfairly fixed, with judges commonly refusing to hear exculpatory evidence, while calling frequent recesses to confer privately with the prosecutor. Insiders say paying and receiving bribes is a common practice in most Ukrainian courts. Fee amounts depend on jurisdiction, the crime, real or trumped-up, and the financial wherewithal of the individual or company involved.[16][17]

The Prosecutor-General's Office - part of the government - exerted undue influence, with judges often not daring to rule against state prosecutors. Those who did faced disciplinary actions; when a Kiev court ruled for opposition politician Yulia Tymoshenko, the presiding judge was himself prosecuted. The courts were not even independent from each other, and it was commonplace for trial court judges to call the higher courts and ask how to decide a case. Courts were often underfunded, with little money or resources. It was not uncommon for cases to be heard in small, cramped courtrooms with the electricity cut off while prisoners were unable to attend because of lack of transport from jails to courtrooms.

Reformers highlighted the state of the judiciary as a key problem in the early 1990s and established a number of programmes to improve the performance of the judiciary. A Ukraine-Ohio Rule of Law Program was established in 1994 which brought together lawyers and judges from the American state of Ohio, including members of the Ohio Supreme Court, with their Ukrainian counterparts. The United States Agency for International Development supported these and other initiatives, which were also backed by European governments and international organisations.

These efforts proved controversial among some of the judicial old guard, but a band of reformist judges - dubbed the "judicial opposition" - increasingly gained support from reformers in local administrations who pushed for an end to judicial corruption. Judges were indicted en masse in Dnipropetrovsk in the early 1990s, and later on judges from the Mykolayiv city court and the Moskovskyy district court of Kiev were put on trial for corruption.

Major changes were made to the judicial system when the law "On the court system" was passed on 7 February 2002, creating a new level of judiciary and enacting institutional safeguards to insulate judges from political pressure.

President Viktor Yanukovych formed an expert group to make recommendations how to "clean up the current mess and adopt a law on court organization” on March 24, 2010.[16] One day after setting this commission Yanukovych stated “We can no longer disgrace our country with such a court system.”[16]

In December 2011 certain economic crimes where decriminalized.[29][30]

Concrete steps the Azarov Government has proposed are the abolishment pre-trial detention for non-violent crimes, promote experienced judges with strong records and punish bribe-taking and corruption in the judiciary.[8] A law passed in 2010 has already improved the basic salaries of judges, and a more rigorous method of selecting candidates for judges had been introduced.[8] But reforms brought many new problems: The Supreme Court lost almost all of its powers, judges become very dependent from the Supreme Council of Justice, ability to sue government was severely limited.

A new criminal code came into effect on 20 November 2012.[31]

On 8 April 2014 the Ukrainian Parliament adopted the law "On Restoring confidence in the judicial system of Ukraine", this bill established the legal and organizational framework for a special audit of judges of courts of general jurisdiction.[32]

On 26 September 2015 Prime Minister Arseniy Yatsenyuk claimed Ukraine's court system would be reformed following the example of the National Police of Ukraine.[33] Meaning employing new personal en masse.[34]

History

The Cassation Court of Ukraine existed until 2003.[35] Those courts were recognized as unconstitutional by the Constitution Court of Ukraine.[36]

See also

References

  1. 1 2 3 How Ukraine Became a Market Economy and Democracy by Anders Åslund, Peterson Institute for International Economics, 2009, ISBN 978-0-88132-427-3 (page 245)
  2. ↑ State and Institution Building in Ukraine by Taras Kuzio, Robert Kravchuk, and Paul D'Anieri, Palgrave Macmillan, 1999, ISBN 978-0-312-21458-6 (page 105)
  3. ↑ The Ukraine Competitiveness Report 2008 by Margareta Drzeniek Hanouz and Thierry Geiger, World Economic Forum, 2008, ISBN 978-92-95044-05-0 (page 50)
  4. ↑ Battle looming over new law on judiciary and judge status, Kyiv Post (July 4, 2010)
  5. ↑ Ukraine, Magisters
  6. ↑ Ban of Communist Party final: Ukraine’s Supreme Administrative Court, UNIAN (25.01.2016)
  7. ↑ Parliament rejects opposition bill to lift immunity of deputies and judges, Interfax-Ukraine (14 April 2013)
  8. 1 2 3 4 5 In Ukraine, scales of justice often imbalanced, Kyiv Post (10 April 2012)
  9. ↑ Law of Ukraine on the Judicial System and Status of Judges. Article 123.
  10. ↑ Law of Ukraine on the Judicial System and Status of Judges. Article 127.
  11. ↑ Law of Ukraine on the Judicial System and Status of Judges. Articles 145, 146.
  12. ↑ Law of Ukraine on the Judicial System and Status of Judges. Articles 90 et seq.
  13. ↑ The law of the Supreme Council of Justice (Verkhovna Rada website) (Ukrainian)
  14. ↑ LAW OF UKRAINE On the Judicial System and Status of Judges. Law from 07.07.2010 № 2453-VI. Bulletin of the Verkhovna Rada of Ukraine (BVR), 2010, № 41-42, № 43, № 44-45, st.529.
  15. ↑ Constitutional Court rules Russian, other languages can be used in Ukrainian courts, Kyiv Post (15 December 2011)
    (Ukrainian) З подачі "Регіонів" Рада дозволила російську у судах, Ukrayinska Pravda (23 June 2009)
    (Ukrainian) ЗМІ: Російська мова стала офіційною в українських судах, Novynar (29 July 2010)
    (Ukrainian) Російська мова стала офіційною в українських судах, forUm (29 July 2010)
  16. 1 2 3 4 5 6 7 Jackpot, Kyiv Post (March 25, 2010)
  17. 1 2 Moskal: ‘Rotten to the core’, Kyiv Post (March 25, 2010)
  18. ↑ Yanukovych notes political pressure on Ukraine's judicial system, Kyiv Post (March 25, 2010)
    Tymoshenko: Yanukovych entourage aims at recognizing legitimacy of coalition before president's trip to U.S., Kyiv Post (March 29, 2010)
    How Ukraine Became a Market Economy and Democracy by Anders Åslund, Peterson Institute for International Economics, 2009, ISBN 978-0-88132-427-3 (page 219)
    Yanukovych allies: Tymoshenko trying to pressure court, Kyiv Post (March 30, 2010)
    Europe after Enlargement edited by Anders Åslund and Marek Dabrowski, Cambridge University Press, 2007, ISBN 978-0-521-87286-7 (page 149)
    Nations in Transit 2000-2001 edited by Adrian Karatnycky, Alexander Motyl and Amanda Schnetzer, Transaction Publishers, 2001, ISBN 978-0-7658-0897-4 (page 400)
  19. ↑ Kyiv district court judge arrested while taking bribe, Kyiv Post (February 8, 2011)
  20. 1 2 Transparency International Global Corruption Barometer: Ukraine has become more corrupt over the last two years, The Ukrainian Week (9 July 2013)
  21. ↑ (Ukrainian) Українські суди майже не виносять виправдувальних вироків Ukrainian courts almost can not stand the acquittals, Ukrayinska Pravda (8 March 2013)
  22. 1 2 Prosecutors fail to solve biggest criminal cases, Kyiv Post (March 25, 2010)
  23. ↑ How Ukraine Became a Market Economy and Democracy by Anders Åslund, Peterson Institute for International Economics, 2009, ISBN 978-0-88132-427-3 (page 110)
  24. ↑ Council of Europe human rights commissioner: Ukraine's judicial system needs independence, Kyiv Post (23 February 2012)
  25. ↑ Акція на підтримку Павличенків, засуджених за вбивство судді (Actions in support of Palichenkos who were convicted for murdering a judge). Ukrayinska Pravda. 2012-11-25
  26. ↑ У Києві протестували проти вироку за вбивство судді (In Kiev protested against the court decision for murdering a judge). Ukrayinska Pravda. 2012-11-25 (video, JW player format)
  27. ↑ Ivano-Frankivsk City Council joins cause to free father and son convicted of murder, Kyiv Post (4 March 2013)
  28. ↑ Rada decides to release political prisoners, including Pavlychenko family, Interfax-Ukraine (24 February 2014)
  29. ↑ Yanukovych signs law on humanization of responsibility for economic crimes, Kyiv Post (13 December 2011)
  30. ↑ Yanukovych signs law on decriminalizing economic offenses, Kyiv Post (13 December 2011)
  31. ↑ New criminal code a step towards civilization, Kyiv Post (22 November 2012)
  32. ↑ (Ukrainian) Parliament passed a law on lustration judges, Ukrayinska Pravda (8 April 2014)
  33. ↑ New patrol police formation principle to be used in reformation of court, customs systems, other agencies - Yatseniuk, Interfax Ukraine (6 September 2015)
  34. ↑ New-style police have key role in Ukraine, BBC News (25 September 2015)
  35. ↑ Law of Ukraine. About court system of Ukraine. Parliament website.
  36. ↑ Decision of the Constitution Court of Ukraine. Case about the Cassation Court of Ukraine. Parliament website.

Further reading

External links

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