Weakest links of ukrainian judiciary

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06.02.2013

A need to reform the Ukrainian judiciary has been subject of discussion both within the country and outside Ukraine. An issue of independence of the judiciary has become one of the most quoted topics during the second cycle of the Universal Periodic Review of Ukraine (UPR) in Geneva at the end of October past year.

“International community identified three weakest links thereof. Firstly, it’s the question of judicature and judge councils, judges’ self-governance bodies, disciplinary commissions, their composition, etc. Secondly, it’s the process of selection of judges, namely the criteria and procedures applied. And thirdly, - courts’ accountability, including independence in passing verdicts” , stated Yuliya Shcherbinina, UNDP Senior Programme Manager.

Specifically, recommendations issued to Ukraine included introduction of fair procedures and criteria of appointment and dismissal of judges (Slovakia, Austria, Poland); ensure more open court procedures (Spain); eliminate instances of selective prosecution (Great Britain, Netherlands, Austria), limit the authority of prosecution (USA), combat corruption in judiciary (Germany), implement the new Criminal and Procedural Code to ensure objectivity and independence of the criminal justice system (Norway, Republic of Korea), and implement decisions of the European Court of Human Rights (Armenia), etc.

Mr. Ihor Koliushko, Head of the Center for Political and Legal Reforms , identifies three areas in relation to independence of judiciary: “Firstly, selection of qualified, fair and honest judges. Secondly, independence of judges to perform their duties, and thirdly, drawbacks with countering the work of incompetent judges. And, while the first issue was addressed, there was no progress with other issues. All appointments to higher posts (where finite decisions are passed) are made based out of personal leniency…”

According to Ms. Kateryna Tarasova, Head of the Ukrainian Court Association “Foundation for Justice”, the recent decision of the European Court of Human Rights regarding the case of Mr. Oleksandr Volkov, the ex-judge of the Supreme Court of Ukraine, identifies three specific deficiencies and obstacles that exist in Ukrainian judiciary.

“The Court issued its opinion regarding the opening of disciplinary proceedings against judges, stating that Ukrainian judiciary is not separated enough from other branches of power. Moreover, judges remain procedurally vulnerable to possible abuse on behalf of disciplinary bodies or related individuals, which undermines judiciary independence”, she said.

Another issue, identified by Mr. Dmytro Groisman, Coordinator of Vinnytsia Human Rights Group, is the fact the judges are very often ex-prosecutors, lawyers, etc. “They continue to relate to their former employers, like prosecutor’s office for instance, and independence is a difficult subject in this regard. I am convinced that lustration to a great extent could contribute to judiciary independence”, he said.

Head of Supreme Specialized Court of Ukraine on Civil and Criminal Cases a.i. , pointed out to individual caseload of each judge which affects the quality of judicature: “We are coping with our principle task of administering justice regardless of all the issues we face. But please take note of the conditions we work in. Every judge of the Supreme Specialized Court of Ukraine is assigned an average of 100 appeals cases, which have to be processed in a due course and within reasonable timeline…”

Mr. Mykhailo Tsurkan, Deputy Head of Supreme Administrative Court concurs: “The judges in our Court handle an average of 1200-1300 cases annually… Would you call it Justice? It’s rather decision-processing machinery. 90% of cases should never get this far. Nobody is willing to admit that a case may be completely resolved in a district or appellate court. There has to be a finite decision by the Supreme Court. We are pushing ourselves toward a dead end…” - stated the judge.

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The press club is organized by the Human Rights Information Center and the United Nations Development Programme with support from the British Embassy in Ukraine.

*Universal Periodic Review (UPR) — is a procedure during which every country has to report within the UN on its situation with human rights, while receiving critical feedback to its National Report. Every state undergoes Universal Periodic Review every 4,5 years. During the review, a state presents its Report on human rights situation in the country and human rights CSOs present their so-called ‘shadow report’. Ukraine underwent the first cycle of the Universal Periodic Review in 2008.