Judicial system of 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 practise 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] A Ukrainian Justice Ministry 2009 survey revealed that only 10 percent of respondents trusted the nation’s court system. Less than 30 percent believed that it’s still possible to get a fair trial.[5] Ukrainian politicians and analyst have described the system of justice in Ukraine as "rotten to the core"[5][6] and have complained about political pressure put on judges and corruption.[7][8][9][10][11][12] Ukrainian judges have been arrested while taking bribe.[13]

Court judges maintained a 99.5 percent conviction rate from 2005 till 2008, equal to the conviction rate of the Soviet Union.[5] In the year 2012 this number was 99.83 percent.[14] Suspects are often incarcerated for long periods before trial.[5]

Contents

Outline of the Court system [edit]

Schematic representation of the Court system in Ukraine (split into general jurisdiction and constitutional jurisdiction)
See also: Corruption in Ukraine#Juridical corruption

Ukrainian courts enjoy legal, financial and constitutional freedom guaranteed by measures adopted in Ukrainian law in 2010. Immunity from prosecution is guaranteed to judges.[15]

Although there are still problems with the performance of the system, it is considered to have been much improved since the last juddicial 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.

Ukraine has no jury system; most cases are heard by either a single judge or two judges accompanied by assessors.[16] Ukraine has about 8,000 judges.[16] Independent lawyers and human rights activists have complained Ukrainian judges regularly come under pressure to hand down a certain verdict.[16]

The judicial system of Ukraine consists of four levels of courts of general jurisdiction, as follows:[17]

Local Courts [edit]

  • Local "general" courts (combining criminal and civil jurisdiction) consisting of:
    • district, urban district and town courts;
    • city courts in Kiev and Sevastopol.
  • Local specialized courts (either commercial or administrative jurisdiction) consisting of:
    • regional courts;
    • commercial and administrative courts of the capital of Autonomous Republic of Crimea;
    • city courts in Kiev and Sevastopol.

Courts of appeal [edit]

  • Courts of Appeal (combining criminal and civil jurisdiction), consisting of:
    • regional courts of appeal;
    • court of appeal of the capital of Autonomous Republic of Crimea;
    • courts of appeal of the cities of Kiev and Sevastopol.
  • Specialized Courts of Appeal (either commercial or administrative jurisdiction) consisting of:
    • commercial courts of appeal;
    • administrative courts of appeal.

Courts of cassation [edit]

Cassation Court of Ukraine existed until 2003.[18] Those courts were recognized as unconstitutional by the Constitution Court of Ukraine.[19]

High courts with specialized jurisdiction [edit]

  • The High Specialized Court on Civil and Criminal Cases, covering civil and criminal cases;
  • The High Administrative Court of Ukraine, covering administrative cases;
  • The High Commercial Court of Ukraine, covering economic and commercial cases.

The Supreme Court of Ukraine [edit]

  • Supreme Court is the highest court within the system of courts of general jurisdiction, conducting the review re unequal application of the rules of substantive law by the cassation courts and subject to cases when international judicial institution the jurisdiction of which is recognized by Ukraine has established the violation of international obligations by Ukraine.

Judges [edit]

The Constitutional Court of Ukraine [edit]

  • The Constitutional Court of Ukraine is a special body with authority to assess whether legislative acts of the Parliament, President, Cabinet or Crimean Parliament are in line with the Constitution of Ukraine. This Court also gives commentaries to certain norms of the Constitution or laws of Ukraine (superior acts of Parliament).

Prosecution [edit]

Prosecutors in Ukraine have greater powers then in most European countries. 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".[20]

Supreme Council of Justice [edit]

Main article: Supreme Council of Justice (Ukraine)

Beside everything above-mentioned there also is the Supreme Council of Justice which was legalized on January 15, 1998.[21] This council "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.

Flaws in the system [edit]

Ukraine has few relevant corporate and property laws; this hinders corporate governance.[22] 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.[23]

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.[24][25] 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.[26]

Appointment and regulation of judges [edit]

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).

Language used in Court [edit]

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.[27]

Reform efforts [edit]

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.[5][6]

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.[5] One day after setting this commission Yanukovych stated “We can no longer disgrace our country with such a court system.”[5]

In December 2011 certain economic crimes where decriminalized.[28][29]

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.[16] 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.[16] But reforms bringed 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.[30]

See also [edit]

References [edit]

  1. ^ a b c 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. ^ a b c d e f g Jackpot, Kyiv Post (March 25, 2010)
  6. ^ a b Moskal: ‘Rotten to the core’, Kyiv Post (March 25, 2010)
  7. ^ Yanukovych notes political pressure on Ukraine's judicial system, Kyiv Post (March 25, 2010)
  8. ^ Tymoshenko: Yanukovych entourage aims at recognizing legitimacy of coalition before president's trip to U.S., Kyiv Post (March 29, 2010)
  9. ^ 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)
  10. ^ Yanukovych allies: Tymoshenko trying to pressure court, Kyiv Post (March 30, 2010)
  11. ^ Europe after Enlargement edited by Anders Åslund and Marek Dabrowski, Cambridge University Press, 2007, ISBN 978-0-521-87286-7 (page 149)
  12. ^ 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)
  13. ^ Kyiv district court judge arrested while taking bribe, Kyiv Post (February 8, 2011)
  14. ^ (Ukrainian) Українські суди майже не виносять виправдувальних вироків Ukrainian courts almost can not stand the acquittals, Ukrayinska Pravda (8 March 2013)
  15. ^ Parliament rejects opposition bill to lift immunity of deputies and judges, Interfax-Ukraine (14 April 2013)
  16. ^ a b c d e In Ukraine, scales of justice often imbalanced, Kyiv Post (10 April 2012)
  17. ^ Ukraine, Magisters
  18. ^ Law of Ukraine. About court system of Ukraine. Parliament website.
  19. ^ Decision of the Constitution Court of Ukraine. Case about the Cassation Court of Ukraine. Parliament website.
  20. ^ Prosecutors fail to solve biggest criminal cases, Kyiv Post (March 25, 2010)
  21. ^ The law of the Supreme Council of Justice (Verkhovna Rada website) (Ukrainian)
  22. ^ 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)
  23. ^ Council of Europe human rights commissioner: Ukraine's judicial system needs independence, Kyiv Post (23 February 2012)
  24. ^ 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
  25. ^ 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)
  26. ^ Ivano-Frankivsk City Council joins cause to free father and son convicted of murder, Kyiv Post (4 March 2013)
  27. ^ 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)
  28. ^ Yanukovych signs law on humanization of responsibility for economic crimes, Kyiv Post (13 December 2011)
  29. ^ Yanukovych signs law on decriminalizing economic offenses, Kyiv Post (13 December 2011)
  30. ^ New criminal code a step towards civilization, Kyiv Post (22 November 2012)
  • "Reform of Ukrainian justice system gives cause for optimism", Vlada i Polityka, Kiev, 9 August 2002
  • "Ukrainian judge describes flaws in national judicial system", Ukrayina Moloda, Kiev, 19 October 2001

External links [edit]


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