Archive for June 27th, 2010

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Ukrainian Justice System

June 27, 2010

Well dear readers, His Excellency Leigh Turner, UK Ambassador to Ukraine, paints a fairly accurate picture of the Ukrainian judicial system here……..

Problems with the operation of the courts and the judicial system are one of the biggest problems facing Ukraine today.
 

The judicial system has been criticised for its inefficiency (it can takes ages for courts to issue rulings), its lack of transparency (including allegations of corruption) and its lack of credibility (many court decisions are never enforced). The fact that the courts are not perceived as independent or unbiased is a deterrent to long-term political stability, inward investment and the development of the rule of law. So I’m pleased to have an opportunity to meet Oleksandr Lavrynovych, the Ukrainian Minister of Justice, and discuss with him the Ukrainian Government’s plans for judicial reform. I don’t comment on the substance of the proposed reforms, which are the subject of active political debate, but I do emphasise the importance which we attach to improving the system, including for Ukraine’s membership of the EU.

When I meet Mr Lavrynovych I also applaud the fact that the government has already been consulting the Venice Commision, the Council of Europe’s advisory body on legal and constitutional matters, on the proposed changes. It is important that this dialogue continues. The Venice Commission is justifiably regarded as an unrivalled and impartial source of knowledge and advice. It is therefore essential that the government makes full use of its expertise to help improve the functioning of Ukraine’s judicial system. Without such improvement, there is a risk that the judicial system will continue to act as a brake on Ukraine’s economic and political development.

.(Link to Leigh’s blog in my blog roll to the right)

Nothing in what Leigh says is untrue. 

However, there are further points to consider in the attempted rectification of this issue over the years.

The European Union (and member States bilaterally) have all been poushing Ukraine to reform its judicial system, which as Leigh indicates, is slow, politicised, open to corruption and opaque in many circumstances.

It is further hindered by a Constitution that every single Presidential Candidate in the Ukrainian elections (all 20 something of them in the first round) stated was in serious need of revision/re-writing as it is contradictory in many places, blurs lines of authority between President and Parliament and has gaps where it seems nobody is responsible in others.

Some, but not all, is a legacy of hastily written and passed amendments to the Constitution to allow Yushenko to “seamlessly” take over as President in 2005.  As we all know, very rarely does a document scrippled at speed on the back of a cigarette packet become a solid working document to base a power structure to run a nation upon work out without flaw.

Anyway, the collective EU, by way of grants, placements, exchanges, lectures et al ploughed Euro tens of millions into Ukrainian “rule of law” and “judicial reform”……achieveing, thus far…..very little that is visible to the average Ukrainian, over the past 5 or 6 years alone.

Let us not ask where th money went, as no doubt the EU will not have the faintest idea…..which is something of a schoolboy error when ploughing money into a scheme to fight, amongst other things, corruption, within the legal system.

Let us not ask, what, if anything, was learned by Ukrainian judges on their funded “jollies” to the EU to observe.  Ukrainian judges are quite well aware how an uncorruptable  judicial system should work after all.

Let us ask why, when the EU was ploughing in all this cash for “judicial reform” and “rule of law”, that PACE in 2007 wrote to then President Yushenko expressing its concern for his interference in the courts system…..but then continued to plough in money?  This is but one example.

We can also ask why, when the EU is ploughing in such large sums of money, that European Courts of Human Rights decisions are still unactioned to this day from judgements they made several years ago against Ukraine?

How soon will the Venice Commsion and Council of Europe provide feedback and suggestions to the current government regarding their proposed changes……considering Ukraine assumes the Presidency of the Council of Europe in 2011.

Surely it would be far more transparent to have the Venice Commision’s report on the proposed changes published well before Ukraine assumes the CoE Presidency to avoid any potential accusations by certain politicians in Ukraine that after assuming the Presidency of the CoE, Ukraine effectively recommended their own recommendations through fear, favour or influence…….regardless of whether it is possible or not…….it will surely be an inference they will spread through the media immediately undermining anything forthcoming from the Venice Commision. 

Has the EU, over the past 5 or 6 years, by continually ploughing tens of millions of Euro into a system that has not noticeably changed at all, simply been rewarding failure?

What has been gained from this money?  What results have been seen?

Like a smoker who wants to stop smoking, if Ukraine really wanted to reform its judicial system (and all the issues within) it would do so for its own benefit, without the need for financial carrots and despite the sickness and cravings of withdrawl.

Maybe financial carrots from the EU would assist more if they were given on accomplishment in a specific area…..for example 85% of all cases heard within 2 months…..or 80% of all rulings carried out (as accounted for and monitored by the EU and not Ukrainian statisticians) making speedy hearing and rulings being carried out the norm and failures the notable exceptions……instead of the other way around as it is now.

How best does the EU incentivise a Ukrainian judicial reform (from which the EU will ultimately benefit)?

For sure, their current course of action has produced very, very little by way of visible results and changes way down here amongst the hoy-poloy…….regardless of what they may have been told by those upon high over salmon sandwiches and a glass of Pimms.

Would following, for example, 200 randomly picked cases from across the whole of Ukraine (not just Kyiv) from start to finish and of varying importants push matters along far better?

Would “lay people” monitoring courts around the nation be the answer, similar to the lay person scheme of monitoring police stations in the UK make a difference?  I would happily volunteer as a neutral lay person to mintor the courts in Odessa for example.

Would videoing all trials and court sessions be appropriate and the videos chosen at random by the Vennice Commision or EU to view and see if “rule of law” is actually occuring on a daily basis (together with follow-up with the “victim” as to whether the ruling was carried out)?

Would individual court websites be the answer, publishing court lists and results on a daily basis for public scrutiny?

A jury system that actually finds a defendent guilty/not guilty instead of the judge, demoting the jury to nothing more than spectators maybe?

There is no need to ask why every contract I have been involved in has nominated London or Stockholm as the court of arbitration.  No Ukrainian would ever nominate a court in Ukraine for such a purpose.

Admittedly, judges in Ukraine are underpaid, like all people employed in the organs of the State administration but will giving them substantil pay raises stop them from taking a backhander…….or the tax inspoector…..or the Zhek official…….or the OVIR official……or the Customs official……or the police?  The answer is probably not unless there is also severe and substantial prison sentences to go along side them for those involved.

Unfortunately the nepotism in Ukrainian society would insure such sentences did not come about unless they too, were jailed for perverting the course of justice and/or conspiracy to do the same.

So, just how is this cycle broken and even if there is a way, is throwing EU money at it (without any accountability or staged payments for success) going to help?

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