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500+ judges leave office – Ukraine

September 9, 2016

8th September witnessed the Verkhovna Rada complete the bureaucracy to allow more than 500 Ukrainian judges to leave behind their judicial mandates.

judge

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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