The value of all fine words about reform is assessed in their application – or lack of action. In Ukraine any reform must involve serious changes to the judicial system. There was a great deal of optimism in 2005-2006 that real progress was being made. In 2008 it is difficult to feel positive at all, or even entirely confident that when we use certain apparently clear terms – like “reform”, “”freedom of speech” and “democracy” that we all mean the same thing. Not only are we seeing politicians riding roughshod over the rule of law dragging the courts into their political struggle, but an attempt in an apparently reputable newspaper to analyze the progress with judicial reform has ended in allegations from the authors of censorship and counter accusations, or more accurately insinuations, from the newspaper about some supposedly questionable motives.
On Monday 20 October a number of media outlets published an open letter to the newspaper “Dzerkalo tyzhnya” [“Weekly Mirror”] from Ihor Koliushko, Head of the Centre for Political and Legal Reform accusing the newspaper of applying censorship. Mr Koliushko explained that he and Roman Kujbyda had felt compelled to respond to an article entitled “Justice.net?” [a play on words, but basically suggesting there is no justice] by two employees of the Supreme Court, M. Melnyk and M. Khavronyuk. Since their article is devoted to criticizing a draft law “On the Judicial System and the Status of Judges” which Ihor Koliushko and Roman Kuibyda were directly involved in at earlier stages, they decided to respond.
The open letter states: “Great was our surprise when with the publication of our article (№38 (717), 2008 р. - http://www.dt.ua/1000/1050/64336/ ), we discovered that the majority of places where our point of view did not coincide with the management of the Supreme Court had been removed”. Even the fact that the authors of the first article work in the Supreme Court was taken out.
In their response on Monday evening, ““Dzerkalo tyzhnya” make vague insinuations about some person who supposedly “commissioned” the article and who the authors are allegedly trying to appease through their “defamatory words”. I will not speculate as to who they have in mind. I know they dont mean human rights defenders although it is frustrating that they forgot them. The latter, after all, played a direct role in the first stages of drawing up the Conceptual Framework on court reform and the relevant draft laws, and the strange obstacles and delays now being encountered cause bemusement and concern. There are many in Europe who have been following the haltering attempts at court reform and who are baffled as to what is happening – or not happening – in Ukraine. The newspapers decision therefore to remove a major chunk devoted to tracking the bumpy road which has led to the present draft law while not cutting most other sections of the article of, shall we say, much narrower interest, is at very least startling.
It turns out that even apparently quite uncontroversial terms like “shorten” can be understood in different ways. When you have one text with a clear position, and end up, by removing major elements of this position, with an effectively altered message, can we really say that it has been merely shortened? At very least the authors should have been informed. They might well have decided not to allow publication and to seek a media outlet without such restrictions.
The fate of the efforts of recent years is well worth telling. In the following extracts from the uncensored article, in the tradition we all hoped had been consigned to history, the parts which had been removed are given in italic.
The authors quote the original title, but add “Yet the people have the right to justice”, and begin as follows:
“At present there is no fair and independent trial in Ukraine”. This was stated by employees of the Supreme Court apparatus, doctors of law M. Melnyk and M. Khavronyuk in their article ““Justice.net?” (Dzerkalo tyzhnya, №32 (711) 2008). If this is stated by high-ranking officials of the highest court in the system of courts of ordinary jurisdiction, then there is clearly truth in these words. As they say, its clearer from within.
We are surprised by something else: the authors do not offer anything which could make the courts fair and independent, and have confined themselves to strong criticism of the “Yushchenko – Kivalov” draft law “On the Judicial System and the Status of Judges” which does indeed “envisage radical reform of the court system and status of judges” and suggests “carrying out “major” judicial reform in Ukraine”. Only for some reason the authors of the article reduced this to a list of five comments about the draft law, clearly considering judicial reform to be unnecessary. Yet it is specifically unsystematic cosmetic repairs, patching up holes and flinging cases from one court to another which have led to this situation which in their article they call “justice.net”.
The “Yushchenko – Kivalov” draft law?
Perhaps calling the draft law “On the Judicial System and the Status of Judges” (№ 0916, 0917) the Yushchenko – Kivalov” draft law” can mislead the uninitiated reader since this draft law is not essentially a “creation” of the Presidents Secretariat and the Parliamentary Committee on the Justice System, but has its own background.
Back in 2005, for the purpose of preparing judicial reform, the President created a special consultative and advisory body – the National Commission for the Strengthening of Democracy and the Rule of Law. This was formed on purely professional, not political principles. Having assimilated previous Ukrainian experience and studied other countries experience, it prepared a draft Conceptual Framework for improving the court system in order to ensure fair trial in Ukraine meeting European standards.
The members of the National Commission included Viktor Shishkin, presently judge of the Constitutional Court and for many years Head of the Supreme Court, who has over many years fought for judicial reform and is a specialist on this issue; Vitaly Boiko, Head of the Profile Committee of the Verkhovna Rada of the IV term, the current Head of the Supreme Court Vasyl Onopenko, and many other specialists. Members of the Council of Judges of Ukraine always took part in the National Commission sessions. The Conceptual Framework was specially discussed with all the then management of the Supreme Court and in the Presidents Secretariat and underwent numerous international assessments. Its draft was sent to all Ukrainian courts and almost all suggestions which did not clash with its doctrinal approach were taken into account.
With regard to doctrinal approaches, the Conceptual Framework was based on the task of ensuring that qualified and honest lawyers take up posts as judges via transparent competition. It aimed to create the conditions for judges independence when exercising justice and efficient procedure for bringing disciplinary proceedings against those judges who violate legislation and the principles of just court proceedings, and to reform the system of courts to meet the needs of court proceedings.
An alternative doctrinal position which was consistently endorsed by the then management of the Supreme Court was to strengthen the administrative – command mechanisms in the judiciary from higher courts with regard to lower courts, and as well as those of the heads of courts over judges of those courts. Unfortunately, the present management of the Supreme Court has not moved far from this position. In the view of the absolute majority of Ukrainian and foreign experiences this is a dead end road which makes the subjective factor absolute and does not bring us closer to European standards for the justice system
. The Conceptual Framework for improving the Judicial System was passed by Presidential Decree on 10 May 2005. That the President was then a supporter of the judicial reform is seen just in the fact that according to the Conceptual Framework which he approved the powers of the President with respect to the judiciary were significantly reduced. In implementation of the Conceptual Framework, the National Commission prepared the relevant draft laws – new versions of the laws on the judiciary and on the status of judges which were tabled in the Verkhovna Rada as a legislative initiative from the President at the end of 2006. During the same period the draft laws were discussed and supported at theoretical-practical conferences in Kyiv, Odessa and Kharkiv.
Participant in drawing up the Conceptual Framework, initiator of the draft law on the creation of Higher civil and criminal courts in the Verkhovna Rada of the fourth term, Vasyl Onopenko, having taken up the post of Head of the Supreme Court unexpectedly became the main opponent of judicial reform as envisaged by the Conceptual Framework and the relevant drat laws. He even managed to persuade the President to withdraw the draft laws he had submitted.
Yet despite this, the Verkhovna Rada passed the draft laws in their first reading on 3 April 2007 and instructed the profile committee to merge the draft laws on the judiciary and on the status of judges into one. 3 April was the first day after the President issued his decree dissolving the Verkhovna Rada. This gave grounds for doubts as to the legitimacy of the draft laws adopted. In fact however, the President later annulled that decree, passing another one dissolving parliament instead.
In June this year the President asked the Verkhovna Rada to accelerate adoption of the relevant draft laws. The Parliamentary Committee on Justice Issues swiftly revised it, merging the documents into one draft law, and recommended that it be passed in its second reading (it was supported by the representatives from the Party of the Regions and Our Ukraine – Peoples Self-Defence and opposed by the deputies from the Bloc of Yulia Tymoshenko. The latter is not surprising since the current Head of the Supreme Court up till his return to his role as a judge was one of the leaders of the bloc and headed a party which was and is in the bloc). At the same time, one must agree with M. Melnyk and M. Khavronyuk that some of the new features which appeared in the draft law while being reworked by the Parliamentary Committee on Justice Issues do not comply with the Constitution and the Conceptual Framework for improving the Judicial System”
The end result of censorship – and it is difficult to find another word since the text above was seriously altered and reduced without the authors knowledge – is that one pays attention not only to what was removed, but what was allowed, and why.
It is not so difficult to fathom if we look at the next – uncut - section on staff appointments and judges independence. The authors statement about judicial reform being a hostage to political struggles is repeated without change. They assert that this struggle often boils down to a battle for power over the judiciary in order to use it for their own narrow political and personal aims. The text then mentions a new feature added to the original draft law, this being that judges are appointed to and dismissed from administrative positions by the President on the submission of the Higher Council of Justice. The authors demonstrate that this does not comply with the Constitution and a number of judgments passed by the Constitutional Court. There is a marked difference in the readers general understanding of the situation with judicial reform in Ukraine depending on whether s/he reads only section 2 or both sections 1 or 2 as submitted by the authors.
The newspaper asserts its right to edit texts, and who indeed could deny this? Yet references to the need to shorten the article would sound more convincing if this had been done somewhat more consistently – there are too many sections so you remove one, for example. Here we have another situation since not all of the entire first section was removed. And why, after all, take out all reference to where the authors of the original article work?
The question becomes more rhetorical when we compare the full and well, not so full versions of the section on the Role of the Supreme Court. The first four paragraphs are roughly the same and state that the Supreme Court is not coping with the duties vested in it. Even within one court chamber opposite rulings are often handed down on analogous cases, this hardly providing a positive example for courts at lower level. A second problem is that in civil and criminal cases it is empowered to examine appeals against its own rulings meaning that it is effectively acting as two court levels on one case.
The authors mention that the draft law designates the Supreme Court the role of highest court considering cases under exceptional circumstances, mainly where discrepancies have been found in court practice, as well as providing clarification. Cassation functions will be transferred to the higher courts (as is done at present in administrative and economic jurisdiction.
The last (short!) paragraph was mislaid or deemed too unworthy of space on the page. It reads as follows:
“Suggestions on increasing the role of the Supreme Court for court practice are labelled by its management as disastrous. Instead it is suggested that the Supreme Court be left as it is – with only the right to cassation in civil cases restricted, keeping this right only in the most money-packed cases – the cost of a law suit constituting more than 100 times the minimum wage, that is, more than 50 thousand UAH. Such a price for a law suit however is most often encountered in cases where the parties are fairly affluent and for them this money may often not have the same vital significance as several thousand UAH for the majority of citizens. The approach suggested by the Supreme Court will thus lead to the majority of citizens not having the right of access to cassation appeals.”
We would note with some relief that the section on overcoming corruption, which is one of the main objectives of the draft law, has not been tampered with! Nor, on the whole, has the last paragraph of the article which concludes that in order to make judicial reform benefit ordinary people and not specific politicians, the draft law needs to be brought into line with the Constitution and Conceptual Framework for improving the Judicial System. It is suggested that the draft law either be returned for a first reading, or passed in the second reading with the version approved at first reading stage. “The adoption of the Law “On the Judicial System and the Status of Judges” will make it possible to begin wide-reaching court reform without which there can be no hope of improving judicial defence.
There is one small omission in the last paragraph: the National Commission for the Strengthening of Democracy and the Rule of Law is not there. The name is not perhaps the most elegantly succinct however the National Commissions role in drawing up the original draft law cannot be overstated. More importantly, however, its omission is entirely in keeping with the removal of the other parts of somebody elses article without the authors knowledge. It would, regrettably, seem to confirm that this was no accident. It certainly happens that texts are simply too long, however from the above, it strains credulity to believe that any copy-editor could have chosen the deleted sections as being somehow expendable. .
I dont wish to make any guesses as to why this happened. The reader can see what the authors wished to publish. I can only hope that in future “Dzerkalo Tyzhnya” and indeed all other publications will provide warning when they “shorten” other peoples texts. It would be desirable if they also gave some indication where the text can be found without parts removed. There is surely enough space on the Internet for a few extra words, and for freedom of speech.