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Citizens into Judges — Reforming Ukraine’s Legal System

08 October 2016 - 00:01 341
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Bohdan Nahaylo spoke to two legal experts about the recent Constitutional Amendments and how they will affect Ukraine’s Judicial System

Hello this is Ukraine Calling. A weekly roundup of what’s been happening in Ukraine, with a focus on a main story. I’m Bohdan Nahaylo for Hromadske Radio in Kyiv, and here are the some of the main stories from Ukraine. 

Headlines

Judicial Reform Set To Move Forward

A new law came into force on 30 September that moves judicial reform forward. It’s the Law on Submitting Amendments to the Constitution of Ukraine Regarding Justice. There are a number of key points in the law. The Constitutional Court has become more accessible to ordinary Ukrainians. The jurisdiction of all courts has been expanded – they now have the authority to review cases on the basis of any legal argument. The Supreme Council of Justice will be replaced with a Supreme Council of Public Justice, and its mandate will increase. The new body will be able to suspend and dismiss judges. Ukraine Calling listeners will remember previous reports about corrupt judges being dismissed, but there is public pressure to investigate many more. Another important change is that some restrictions have been placed on the Prosecutor General. Parliament had approved the bill back on June 2, President Poroshenko signed it into law on June 24, and on 30 September it came into effect. We’ll bring you in depth commentary about this law and its implications later in the show.

Ex-Riot Police Officer Admits Guilt in Court for His Actions during the Euromaidan Protest

Victor Shapovalov was once a commander in the now disbanded Berkut special police force. He now faces charges for his role during the Euromaidan protests, for exceeding his authority. The court is hearing evidence that his unit, from Kharkiv, was responsible for assaulting 110 protesters. Shapovalov admitted that he watched the assaults and did nothing to stop them. He also admitted to seeing his colleagues receive lethal weapons that were used to shoot protesters, described the details of the special operation, and named names. Also interesting testimony was that he described how to identify Berkut members who were actually responsible for the killings, by the markings on the backs of their helmets. 

Ukrainian Journalist Detained in Moscow Denies Charges of Espionage

Roman Sushchenko was detained by Russian Secret Service officers on Moscow on September 30th on charges of espionage.Sushchenko is a Ukrainian journalist who works for the Ukrainian News Agency Ukrinform. He’s been their Paris correspondent since 2010, and was in Moscow during his vacation on private business. His wife, Anthelia, learned of the detention only two days after the fact. She and Ukrinformhired the Russian defence lawyer Mark Feygin, the man who defended Ukrainian pilot-politician Nadia Savchenko when she was in a Russian prison. Feygin was allowed to meet with his new client for 15 minutes, during which time the journalist said he was innocent and ready to prove this in court.

War

Shelling continues in the war zone in the Donbass, but casualties were relatively low over the past week. Only 1 Ukrainian soldier was killed and 5 were wounded.

Former Dissident Receives Metropolitan Sheptyts’kyi Award 2016

Ivan Dziuba was honoured with yet another award last week. The writer, former Soviet dissident and Ukrainian Minister received this year’s Metropolitan Sheptyts’kyi Award. It is bestowed out annually by the Jewish Confederation of Ukraine to an individual for her/his contributions to fostering understanding Ukrainian-Jewish cooperation. 50 years ago Dziuba was one of a few intellectuals who gathered in Baby Yar to remember Jewish victims massacred there. During the then Soviet era, the Holocaust and victimization of Jews was not publically discussed. This year, during the grand 75th anniversary commemoration, Dziuba was rewarded for his bravery. Among other things, he is internationally known for his book, “Internationalism or Russification,” (1965) a piece that protested against repression of Ukrainian intellectuals. It is still required reading for students today. 

Culture

A new movie will soon appear in Ukraine. It’s called, “War Chimeras” and is being filmed by a mother and daughter team Maria and Anastasia Storozhits’ki. It’s a drama based on the real life events surrounding the bloody and controversial August 2014 Battle of Ilovaisk. It includes phone recorded video footage shot by soldiers who were there and survived. Maria had published a book and play about those events in 2015, and hopes to have the film ready for the Docudays UA International Film Festival in December. We’ll post a link to the book on our webpage. 

FOCUS

Bohdan Nahalyo spoke to two legal experts about the recent Constitutional Amendments and how they will affect Ukraine’s Judicial System. Here’s the interview with Andriy Kozlov, Senior Legal Analyst for Democracy Reporting International and the adviser/observer of the Constitutional Commission, and Oleksandr Vodyannykov, National Legal Advisor to OSCE project in Ukraine. 

Nahaylo:One of the key issues highlighted during the recent EuroMaidan and Revolution of Dignity was the corrupt nature of the legal system in Ukraine, especially the judiciary, and that they had lost all credibility in the eyes of society. The struggle against corruption and to democratize the country through, inter alia, constitutional reforms and an overhaul of the legal system and judiciary has proved difficult and many would say far too slow. But, at least as far as revamping the judiciary, there has recently been a breakthrough paving the way for change. A few days ago, on 30 September, a long-awaited reform of the judiciary approved earlier in June by an overwhelming majority of MPs, took effect. Constitutional amendments and the newly adopted Law on the Judiciary and Legal Status of Judges should contribute to the establishment of a credible and professional judiciary by drastically reducing political interference in judicial matters, limiting immunities, introducing anti-corruption safeguards, as well as open competitive selection procedures for judges. The constitutional amendments are backed by European and international partners of Ukraine and should bring the country in line with European standards and values.

To discuss these changes, their implications and the challenges of implementing them, I’m very pleased to have with me here in the Hromadske Radio studio two leading local experts: AndriyKozlov, Senior Legal Analyst for Democracy Reporting International, therefore my colleague, and advisor-observer at the Constitutional Committee, and Oleksandr Vodyannikov, National Legal Advisor to the OSCE Project Coordinator in Ukraine.

Kozlov: Thank you for the invitation.

Nahaylo:Let’s begin by asking you to briefly explain to non-specialists what, in your view, is the significance of the recent constitutional changes. Andriy, would you go first?

Kozlov: Probably there is a great demand for justice in [our] society, which was deprived of it for a very long time. Reforms aim to restore at least some feeling of justice in the country. To do this there are several ways, like de-politization of the judiciary, fighting against corruption, of course, as well the corrupt judiciary is a reflection of the face of the whole of society, and introduction of new legal instruments, which are really interesting and may give better opportunities for ordinary people to defend themselves.

Nahaylo:Oleksandre, what would you say?

Vodyannikov: Thank you for inviting us. I would like to point out that this is not the first attempt to reform the judiciary here in Ukraine. Since Ukraine gained independence in the early 1990s there was a huge problem with the judiciary. Before we had the Soviet style judiciary inherited from the former Soviet Union. As many from our audience may remember, there was such an institution as democratic centralism introduced by Stalin, which made the judiciary completely dependent on the party structures and afterwards on state institutions as such. Therefore, this particular reform that was introduced in June this year we hope we allow us to get rid of the Soviet style heritage. First of all, many things in the Constitution are being introduced to ensure de-politization, as Andriy said, but also independence: independence of the judicial profession. This is a key problem here, because never before (perhaps only for a short period during the Orange Revolution) was the judiciary independent from the political forces, and from the government as such. This is the key idea behind the current reform — to have a Europeanized post-Soviet judiciary independent and compliant with all European democratic standards. The challenge, because the reform is not so straight forward, as I would rather say, [is that] there are some minor issues still to be overcome…

Nahaylo: We will discuss this in a second. Let’s not jump ahead. In essence, what you are saying is that it is aimed also at providing the right balance in a democratic society between judiciary, executive, and legislature?

Vodyannikov: Exactly. If Andriy recalls that when we first gathered at the Constitutional Commission we developed terms of reference for the Constitutional Commission. And the key priority was to reallocate power between the so-called power triangle – the president, the judiciary, and the parliament so as to ensure the viable and sustainable democratic development of this country. Not all our expectations or plans have been implemented, but still the breakthrough from June of this year gives us hope that the work will be continued.

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Андрій Козлов //
Андрій Козлов

Nahaylo: Was this is the first major change to the Constitution?

Vodyannikov:Not the first. But this is the first change in the Constitution that was impeccably, procedurally, validly, done, I would say. The major reform of 2004, which was a political compromise to solve the Orange Revolution, was executed in quite a dubious way. This time the Parliament complied with all the requirements mandated by Constitution concerning constitutional amendments. I would say this is the first precedent in the Ukrainian history when such impeccable…

Kozlov: I would like to also note that the public discussion was unprecedented because so many experts and civil society activists were invited to have their say and provide the Constitutional Commission with their version of the amendments. Actually, some of these ideas were in fact implemented.  At the very beginning there were two different drafts, which were amalgamated into a single one. This [resulting] one is relatively better than each one of those before.

Nahaylo: Were you surprised that it was possible at this stage to get sufficient votes, a constitutional majority, to pass these amendments?

Vodyannikov: Well, I know it’ just not possible to torpedo every reform which is brought on the stage. The decentralisation reform did not go through though…

Nahaylo: Probably too controversial at this stage because of its connection to Eastern Ukraine …

Vodyannikov: Yes, sure.  But unfortunately some reformist factions did not give a single vote for this reform [of the judiciary]. This was quite strange.

Nahaylo: But these changes in the Constitution and the legislation that is connected with them, affect primarily the judiciary. But we also talk about the Prosecutor General’s Office, for example, and others: surely there are other changes that are pending that are connected in order to make this overhaul of the legal system viable and credible?

Vodyannikov: It is not quite correct to say that the amendments affect only the judiciary. In the Constitutional Commission we had a proposal that the President completely eradicates a chapter of the Constitution devoted to the Prosecutor General’s Office.

Kozlov: And this was done.

Vodyannikov: This was done. Also amendments concern such legal institutions as the bar, and the Constitutional Court. We also introduced the [instrument of the] Constitutional Complaint which is very important for this country. I hope it will enhance human rights protection here.

Nahaylo: Before you proceed, could you explain in two words what is the importance of the Prosecutor General’s Office in this post-Soviet system.

Vodyannikov: We should start by looking at the historical background of the development of the Prosecutor‘s branch of the government as it appears in the post-Soviet time. Because, indeed, we have quite an awkward situation here when we do not have three brunches of the government but four. The Prosecutor‘s Office has been a completely independent and self-contained institution, uncontrolled and with no one conducting an oversight over its activities. This goes back to Russian Imperial times when a Prosecutor, [Pavel] Yaguzhinsky, was first appointed during Peter the Great’s time to develop this institution. Afterwards this institution was inherited by the Soviet Union and it was a very effective instrument of social suppression here. The peculiarity of the Ukrainian Prosecutor’s Office is that we still cannot get rid of those remnants of the Soviet-style Prosecutor’s office or even the Russian Imperial style of a Prosecutor’s Office. These include the quite unprecedented power of general oversight, that is now being eradicated from the Constitution completely. That includes those functions exercised by the Prosecutor’s Office outside the ordinary criminal justice procedure. We are now limiting the functions of the Prosecutor’s Office to only the criminal justice system. We are making the Prosecutor’s Office an equal part of the justice system jointly with the Bar and the Courts. We are eradicating this misbalance that had existed, I hope, until now. 

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Олександр Водянников //
Олександр Водянников

Kozlov: Just to be brief, in the criminal justice system, they [Prosecutor’s Office] have the authority to investigate, to prosecute and to oversee how the judges have behaved in the same case. Then to investigate against those judges and to prosecute them. So enormous power.  In civil cases they have the power to get into almost any case if they see there is a state interest there…

Vodyannikov: Or social interest.

Kozlov: They could just get into them…

Nahaylo:Andriy, thank you. Oleksandr, could finish off the answer before I interrupted you, explaining what is pending in terms of other changes that are in the pipeline.

Kozlov: There many bills developed by the Judicial Reforms Council. One of them has been already submitted to the Parliament. I mean the Bill on High Council of Justice. The second bill that will be submitted within the nearest days is the Constitutional Court Bill that would effectively reform the Constitutional Court and the Constitutional Court procedures. That will be a breakthrough in the reform as well. But also a number of the procedural laws will be amended that will affect constitutional changes as well as the new law on prosecution being developed. To complement the answer, I would rather point to the development of the High Anti-Corruption Court (which is also a very interesting part of the reform) that would also entail review of legislation concerning investigations and other procedures. I hope that will be completed by the end of the year. Perhaps Andriy will complement with other things that should be done for the purging of the judiciary and the election of the new corps of the judiciary.

Kozlov: Do not forget about the law on the Bar. There are many problems…

Nahaylo: This all sounds very encouraging and of course only to be welcomed. But what is the reality? Andriy, how ready is the legal profession, the judiciary, for this? Is there the political will? A question to both of you. Do you sense that there is a political will to actually push through, persevere and to make sure that these changes are effected?

Kozlov:Every system tends for stability, of course, whatever the stability is. There are some signs from the judiciary that they are being supressed,there is an inner position within the judiciary especially…

Nahaylo: That is, resistance? [Because of] their jobs, their money, and influence that they had?

Kozlov:There is resistance that is mostly visible, for example, in the High Administrative Court, I would say. Legal professionals and civil society for so many years have been following the lifestyle that was comparable with the corrupt judiciary. Which was feeding it…the corrupt judiciary, unfortunately so. Probably there will be some circles [wanting] resurrection of bad practices even in the new system. We hope that since there is a reform, of course, this is not an endpoint, that it’s just a beginning. It means there is a political will and even if something is not being done right now it would be possible to change it after all because the framework of the constitutional changes is such that it allows to make further, better, changes. So many things will depend on how the assessment procedures and open [appointment] contests will go.

Nahaylo: Do you feel there will a lot of resistance from the old guard within the judiciary to bring new people, new professionals? People, let’s say, with high ethical standards?

Kozlov: One of the problems was that only professional values were measured during those contests before. Those professional values mostly relied on good memory. You knew the codes well. You know some laws well. You remember them and just reproduce them, not even creatively. Now there are attempts which I hope will succeed in introducing some general achievement or psychological tests which will help to find the proper people from the very beginning and compare them in terms of their professional knowledge. This will help to ensure better quality of the judiciary. At least we hope so.

Nahaylo: Oleksandr, what practical problems could there be in the implementation? If we are getting rid of, or lustrating some of the old guard that proved to be simply in the pay of the politicians, and before we are able to find the younger, the newer, blood to fill their place? Is there going to be a gap? Is the system not in danger of collapsing in the mean time?  

Vodyannikov: Yes, you are perfectly right. A few weeks ago I read an article here in Ukraine anticipating collapse specifically devoted to current issues. As far as I can see here in Kyiv many people in civil society groups and governmental authorities are more preoccupied with electing judges to the Supreme Court but paying little attention to what is going on in first instance courts. A dire situation is there. There are already a number of district courts that are not operable [functioning] completely. Therefore, the situation with the judiciary is such that it’s not a case of someone sabotaging, protesting. Or opposing reforms. Those who opposed have already resigned. Right now maybe just less than a half of the judiciary have resigned

Nahaylo: Could you just explain for our listeners how does this work? As I understand this: judges have been given the option of coming clean with their record, with their earnings or resigning.

Kozlov: Until now, before the reform came into force this September, judges had only one opportunity — just to resign. Because the option either to face a competition [go through a new hiring procedure] or to resign appeared only during the implementation of the reform, that has been effectuated only recently. Therefore, even before the reform was put into effect, many judges decided to leave the judicial system. Therefore, there are many vacancies in the judiciary that I hope will be filled with new blood. When it will happen, I do not know, frankly speaking. It is quite hard to anticipate what will be the reaction of society and the Bar to the offer of the government to go to the courts and serve as judges because it is one thing to serve in the Supreme Court, and another to serve in the district court with all the problems and issues pertaining with the first instance jurisdiction here.

Nahaylo: We know that the primary reason why in recent years or last decades people went into judiciary was because of it as a source of wealth, money, of becoming rich quickly without any particular limits. In the new system that has been created are there some sort of parameters for earnings? What would make it attractive for younger people other than status, prestige, I guess, to go into that profession?

Vodyannikov: Status, prestige, good wages.

Nahaylo:Remuneration will be good enough to prevent corruption?

Kozlov: At least in higher courts the pay will be decent. Unfortunately, for lower courts it will be not that good so as to attract people to serve somewhere in faraway regions of the country, I’m afraid.  Especially as there is not so much cultural life there. Probably it would be hard for a person from a big city to go to a semi-rural area, with all due respect to rural areas of course. This is the truth. We cannot make people change their lives so drastically. Probably there will be some pioneers, enthusiasts, who would like to try it. Giving an example, and this is a positive example, to become a person respected by the community for his/her honesty, and for his/her other virtues. Why not? Maybe it will set a new standard.

Nahaylo: Let me put a slightly different spin on this discussion. We focused on what’s in it for the country, the system, the judges themselves. Now for an ordinary citizen, what positive changes other than greater belief in the system could it bring? Would it bring a better opportunity to influence the workings of the system, to monitor it? What could they realistically expect at the end of the road if the implementation is successful?

Vodyannikov: I would like to split your question into two parts. First, how society will perceive the opportunity offered by the reform, and how this opportunity is reflected in the reform. The other is how the general population can feel the results of the reform. As for the first part, the law provides an array of instruments to monitor the justice [system], administration to monitor the behaviour of judges. It ensured transparency and accountability of the judiciary. If some civil society activist wants to monitor, to check the judiciary, he/she has a legally binding opportunity to do this. As it concerns the ordinary population, ordinary people, I would say that they will feel the results of the reform not tomorrow, not the next year. The judicial reform is not that type of reform that can be called a “wow” reform like the reform of the police when one day people go on the streets and they encounter new police in new uniforms, in new cars.

Nahaylo: A kind of quick fix?

Vodyannikov: Yes. This aspect of the reform is a long-term one. It will take years for the ordinary population to feel the results of the reform. For me an indicator would be the number of appeals to Strasbourg court, whether they diminish or not. If not, then it is an indication of failure. If yes, then …

Nahaylo: What is the Strasbourg court for our American listeners?

Vodyannikov: It is European Human Rights Court that receives appeals for the human rights violations from the member of states of the Council of Europe of which Ukraine is a member and participating member of the Strasbourg Court since 1997. Ukraine leads the record of the appeals received from citizens at this international judicial institution.

Kozlov: For those who care about the judiciary and have particular concern in it there will be a tremendous opportunity to fight the corruption yourself. There are grounds for dismissal of a judge, such as failure to explain the legality of his assets, and not only his personal assets but also the assets of his relatives and other connected people. If you see your judge driving a Maybach, unless you know he had inherited it from his German great grandfather you go to the High Council of Justice and file a complaint. There will be a disciplinary proceeding and probably this judge will be fired. Many other cases will lead to the same scene. Besides general trust, I hope, the decisions themselves will be written much more clearly and so people would understand why this judge decided so because as I said there will be test that would include ability to express himself. Sometimes it is just judicial mumbling and people do not understand it.

Nahaylo: Gentlemen, we are coming to an end of a very interesting discussion. In two words or more. Do you remain optimistic as to this implementation process given it is not an easy one and is fraught with political and other considerations. Looking down the road, three years or so, will we get there?

Vodyannikov: Thank you for the question. I am optimistic in this respect. Indeed the pace of the reforms is quite difficult here. There is no black and white. As they say, there are 50 shades of grey.  As far as I see there is a strong political consensus on the Pechersk hills [in Kyiv where government is situated] and within society that the reform is needed, that the reform should be done in this or other way. There are some disputes on ways of implementation but there is no dispute on rolling it back. And this gives hope.

Kozlov: Probably it can’t be completely swift, but it should decisive. Yes, I am optimistic because otherwise I would quit doing anything in that direction.

Nahaylo: Gentlemen, thank you very much.

Music

Here’s a song by the Ternopil Band, Rozdorizhzhia, which means Crossroads. It was performed live this week in another Hromadske Radio show hosted by AndriyKulykov called Pora Roku. Every Sunday night he plays contemporary music from Ukraine. We’ll post a link to the show on Ukraine Calling’s website, but for now, here’s “My ne sami,” which means, We Are Not Alone. 

Looking Forward

We will continue to watch all the stories in Ukraine. Tune in next weekend for a new episode of Ukraine Calling. If you have any suggestions or comments, please write to the show at: [email protected]. I’m Bohdan Nahaylo in Kyiv. Thanks for listening.

Interview transcribed by Larysa Iarovenko; Headlines, Culture, and Music, Sections prepared by Marta Dyczok; Sound Engineer Andriy Izdryk.

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