"THE ACTION UKRAINE REPORT"
An International Newsletter
In-Depth Ukrainian News, Analysis, and Commentary
"The Art of Ukrainian History, Culture, Arts, Business, Religion,
Sports, Government, and Politics, in Ukraine and Around the World"
"JUDICIAL INDEPENDENCE IN UKRAINE"
"The Law also guarantees the independence of courts and judges by
furnishing special procedures to elect/appoint judges. The above
principles, however, remain seemingly just "a declaration on paper."
Only time will tell whether these provisions will be carried out in
"Voters' trust and confidence are of great significance. If citizens
cannot be assured of a fair and honest election process, they will have
no faith in other components of the political process. Social stability
rests on the individual's confidence in the electoral process to function
correctly in every respect. Courts must ensure that the process is
implemented in a proper way and must guarantee fair elections.....
"In other words, to strengthen their independence, the courts must
receive proper funding under a separate budgetary authority and judges
must receive adequate salaries. Judges in Ukraine are under-compen-
sated: (1) lower court judges are paid $100 to $200 per month; (2)
appellate judges receive several hundred dollars per month; and (3)
Supreme Court justices receive approximately $1000 per month."
"THE ACTION UKRAINE REPORT" Year 04, Number 167
The Action Ukraine Coalition (AUC), Washington, D.C.
Ukrainian Federation of America (UFA), Huntingdon Valley, PA
email@example.com, ArtUkraine.firstname.lastname@example.org (ARTUIS)
Washington, D.C.; Kyiv, Ukraine, SUNDAY, September 19, 2004
-----INDEX OF ARTICLES-----
"Major International News Headlines and Articles"
1. " JUDICIAL INDEPENDENCE IN UKRAINE"
By Bohdan A. Futey
Ukraine's Quest for Mature Statehood - Round Table V:
"Ukraine's Transition to a More Stable Democracy"
Library of Congress, Washington, D.C. Mon, September 13, 2004
ACTION UKRAINE REPORT-04, No.167: ARTICLE NUMBER ONE
1. " JUDICIAL INDEPENDENCE IN UKRAINE"
By Bohdan A. Futey
Ukraine's Quest for Mature Statehood - Round Table V:
"Ukraine's Transition to a More Stable Democracy"
Topic: Rule of Law: Assessing Ukraine's Progress
Panel: Does The Ukrainian State Possess An Independent Juciciary?
Library of Congress, Washington, D.C. Mon, September 13, 2004
I. FACTORS FOR JUDICIAL INDEPENDENCE
The rule of law is secured by independent courts. Certain
features are essential to judicial independence, although each country may
implement these features in different ways. At a minimum, however, judicial
independence requires: the insulation of judges from political pressure,
including freedom from fear of removal from office or reduction in pay;
final authority to interpret the law and the Constitution, including the
power to declare laws and official acts unconstitutional; a large enough
budget to maintain the prestige and effectiveness of the institution; and
the personal commitment of each judge to act independently.
A judge must decide matters before him or her impartially, on
the basis of the facts and the law, without any restrictions, improper
influences, inducements, or threats, direct or indirect, from any party or
institution or for any reason. If a judge fails in this duty the public
will lose confidence in the basic equity of its society, generating
cynicism, anger and instability.
There are two aspects in which judges must be independent.
First, they must be honest-brokers, in that they are independent from
and neutral among the parties that appear before them. A judge's moral
commitment to this form of independence eliminates favoritism and
corruption from the nation's judicial system. Second, the judiciary, and
hence each individual judge, must act as co-equal and independent of the
other branches of government. A judge is independent in this sense if he
or she is not beholden to any other branch of government or political
It is vital that courts have jurisdiction and ultimate
authority over the interpretation of the law, so that individuals are
assured protection against the prejudice or passions of the majority. That
authority must include the power to restrain the legislature or executive by
declaring laws and official acts unconstitutional when they abridge the
rights of citizens. Further, for judicial independence to have practical
effect, the courts' interpretation must be accepted and enforced by the
legislative and executive branches of government.
In the United States, Article III, Section 1 of the Constitution
provides that the "judicial Power of the United States, shall be vested
in one supreme Court " and in trial and appellate courts established by
Congress. Those federal courts operate under established procedures
and are the only courts permitted to hear questions on matters of federal
law, thereby providing one system of justice for citizens and government
Once appointed and confirmed, federal judges are guaranteed
their positions for life, and may be removed through the impeachment
process. Judges are empowered by this to be more independent because
they need not fear removal from office or reduced pay if they rule against
a powerful official or citizen, or declare a popular law unconstitutional.
Finally, U.S. judges make it a priority when deciding cases
involving national policies with great social or economic importance to
decide in a nonpolitical way and make every effort to base their decision
on law, not personal preference.
The main factor in the protection of rights and freedoms secured
by the Constitution is the establishment of an independent judiciary. As
there cannot be a free market economy without private ownership of
property, in the same manner there cannot be a country based on the rule
of law without an independent judiciary. An independent judicial branch
of government ensures compliance with the rule of law principles.
A. Constitution of Ukraine & Law on the Judiciary
The Constitution of Ukraine incorporates the fundamental
premises essential to establishing an independent judiciary. Chapter VIII,
titled "Justice," discusses the structure and principles of the Ukrainian
judicial system. "Justice is administered exclusively by the courts," and
the jurisdiction of the courts "extends to all legal relations that arise in
the state." (Art. 124). The Constitution guarantees the right of appeal to
the courts for protection of constitutional rights and freedoms. (Art. 8).
This article is buttressed by the provision that "[h]uman and citizens'
rights and freedoms are protected by the court." (Art. 55). Reading these
constitutional provisions together leads to the conclusion that the courts,
at the very least, exist as an independent forum for citizens to act in
defense of their rights and freedoms.
The Constitution of Ukraine, however, does not envision a
unified judicial system. It distinguishes between the Constitutional Court
and the courts of general jurisdiction. The Supreme Court and lower courts
of general jurisdiction can neither interpret laws nor declare laws and acts
unconstitutional. The Constitution vests such authority in the
Constitutional Court. On the other hand, the courts of general jurisdiction
function under the 7 February 2002, Law "On Judiciary in Ukraine" (Law).
They are created and abolished by the President on the request of the
Minister of Justice with approval of the Chief Justice of the Supreme Court
or heads of the respective higher specialized courts (Law Art. 20).
According to Article 18 of the Law, courts of general
jurisdiction comprise of five levels: (1) district courts, (2) courts of
appeals, (3) the Cassational Court of Ukraine, (4) higher specialized
courts, and (5) the Supreme Court. The Supreme Court is the highest
judicial body of courts of general jurisdiction, with subordinate courts, as
established under principles of territoriality and specialization, falling
under its authority (Art. 125).
As for appointment, the Constitution authorizes the President to
appoint judges for their initial five-year term (Art. 128). The Verkhovna
Rada has the power to elect judges for life thereafter (Arts. 85.25 and
128). To assist in the appointment process, the Constitution establishes the
High Council of Justice, which is composed of members of all branches of
government and is charged with the "submission of a proposal regarding the
appointment" of judges (Art. 131). Concerning Constitutional Court judges,
the Constitution calls for 18 judges, with the President, the Verkhovna
Rada, and the Congress of Judges each appointing six.
Turning to judges themselves, their independence and immunity
"are guaranteed by the Constitution and laws of Ukraine," and "influencing
judges in any manner is explicitly prohibited." (Art. 126). This provision
is extended in Article 14 on the Law on the Judiciary: "[w]hile
administrating justice judges are independent of any influence,
unaccountable to anybody, and subordinated only to the law." The Law
goes on to state that interference in the administration of justice is
"prohibited" and that judges are "provided" with the freedom of non-biased
adjudication of disputes in accordance with their beliefs. The Law also
guarantees the independence of courts and judges by furnishing special
procedures to elect/appoint judges. The above principles, however, remain
seemingly just "a declaration on paper." Only time will tell whether these
provisions will be carried out in practice.
B. Impediments to Judicial Independence in Ukraine
1. Enforcement of Judicial Decisions
The establishment of the rule of law principle rests with a
development of a system which respects and enforces judicial decisions.
According to Article 11 of the Law on the Judiciary, court decision,
entered into force, are binding and must be followed by state organs,
local authorities, its officials, associations and other organizations,
citizens and legal entities in Ukraine. The lack of enforcement of
judicial decisions by the executive must be addressed.
The importance of enforcing judicial decisions cannot be
overstated; it goes part and parcel with the establishment of a credible,
respected and independent judiciary. Nearly all governments enforce
the decisions of their judicial systems. In the United States, the
judiciary depends upon the executive branch to enforce court decisions.
The strongest argument, however, in favor of enforcing judicial decisions
in an emerging market economy such as Ukraine is economic.
Putting aside the moral implications of failing to enforce
judicial decisions, domestic and foreign investors would be rightfully
hesitant to engage in financial transactions in a country that failed to
adequately protect an investor's rights. This hesitancy could have
disastrous effects. Therefore, it is imperative that Ukraine enforce its
decisions, and enable the courts to provide needed stability in commercial
transactions by assuring domestic and foreign investors that judicial
decisions will be enforced.
2. Defamation - Libel and Slander
On the issue of moral damages in libel and slander actions, a
question arises as to the standard of proof that should be used in the
determination of a party's entitlement to such damages. In Ukraine, moral
damages often arise in cases where a government official sues a newspaper
based on published reports of allegedly corrupt activities by that official.
The Constitution permits a prevailing party to receive moral damages. The
requirement of a minimal standard of proof to demonstrate entitlement to
moral damages raises concerns that these lawsuits could have a chilling
effect upon the freedom of the press and pose challenges to the government.
Further, an additional concern is that awarding high amounts
for moral damages to government officials creates the appearance that the
court are shielding these officials from even legitimate journalistic
inquiry and criticism. Any impression of complicity between or among the
branches of government raises the question of whether courts are adhering
to the Constitution's separation of powers principle.
To prevent abuses by government officials in libel and slander
cases, high evidentiary standards and detailed procedural safeguards in this
area should be established. In the United States, for example, in order to
receive a sizable award for punitive damages, the complaining party in a
libel or slander suit must demonstrate that he or she has suffered "actual
damages," such as health problems causing hospitalization or loss of
employment. Furthermore, government officials must overcome a higher
standard of proof than ordinary citizens, and truth is always a valid
3. Constitutional Court Decisions
Since the Constitutional Court's inception on January 1, 1997,
its judges have occupied a position that occurs once in the development of a
nation. They have had the unique opportunity to shape the law and the legal
system in the same manner as Chief Justice Marshall did in the United States
in Marbury v. Madison two hundred years ago.(1) Initially, the
Constitutional Court lived up to the great challenge it had undertaken. For
example, in "Re Residents of City of Zhovti Vody," (2) the Constitutional
Court interpreted three articles of the Constitution with the cumulative
effect of affirming that citizens shall have access to the courts for the
protection of rights.
Further, in the 'Ustymenko' case, the Court held that: 1) an
individual has a right to obtain information about oneself, regardless of
whether it is in possession of national or local governmental authorities;
2) certain provisions of Ukraine's law on Information must be understood
as to prohibit the collection of any information, retaining it, and/or
disseminating it without an individual's consent. (3) In addition, in 1998
in "Re Law on Election of Deputies to the Verkhovna Rada of Ukraine" the
Constitutional Court declined to address the provision of the election law
establishing a four percent threshold for party representation in the
Parliament, because its resolution would entail deciding a "political
Further, in "Re Dual Mandates of Verkhovna Rada Deputies," the
Constitutional Court held in 1997 that National Deputies elected after June
8, 1995, may not simultaneously hold two state positions. (5) The Court
reasoned that the Constitutional Agreement, which first established the
prohibition against dual mandates, was in place as of June 8, 1995, and,
therefore, any National Deputy elected after said date was bound by its
terms. The Court, however, excluded National Deputies who were elected
between March 27, 1994, and June 8, 1995. The Court explained that
those National Deputies could hold dual mandates because at the time they
were elected there was no such prohibition.
4. Questionable Constitutional Court Decisions
Since November 2003, the Constitutional Court has issued two
vastly criticized decisions regarding the conformity of proposed changes to
the manner in which the President is elected and the duration of his initial
term (registration No. 4105 and 4180), with provisions of Articles 157
Both draft laws No. 4105 and No. 4180 proposed that the
President be elected by the Parliament instead of direct election by the
people as provided by the current version of Article 103. The drafts,
however, differed in their suggested effective date and implementation. (6)
Draft No. 4105 suggested that the people directly elect the President in
October 2004 as per the present Constitution. The President would serve
until a new President is elected by the Parliament "within a month after the
day of the opening of the first meeting of the [Parliament] elected in
On the other hand, Draft No. 4180 proposed that the Parliament
elect the President in October 2004 for three years. Parliament's term
would then be extended by an additional year, and the new President
would be elected again by the Parliament "within a month after the day of
the opening of the first meeting of the [Parliament] elected in 2007." (8)
The President and the Parliament would then serve complete five-year
When analyzing the proposed changes to the Constitution, the
Court held that the proposals complied with Articles 157 and 158.
Specifically, the Court reasoned that "the change of the procedure of
presidential election suggested in the Bill is not aimed at the abolition or
restriction of human and citizens' rights and freedoms." (9) Relying on
paragraph 2 of Article 5, the Court also reasoned that the people exercise
their power through both direct and indirect forms of democracy.
It is noteworthy that the Court relied only on Article 5 to
support its position that the President can be elected by the Parliament
because the people can "exercise power directly and through bodies of state
power and bodies of local self-government." (10) The Court appears to
have reasoned that the rights of the people were not being abridged because
the Constitution provided for indirect exercise of power along with direct
forms of democracy. The Court's failure to consider equally applicable
provisions of the Constitution, specifically the limitations in Articles 69,
103, and 104, led to its skewed resolution of this matter.
The current version of Article 103 provides, 'inter alia', that
"[t]he President of Ukraine is elected by the citizens of Ukraine for a
five-year term, on the basis of universal, equal and 'direct' suffrage, by
secret ballot." (11) Article 104, which was not mentioned in the Court's
majority opinion, expressly provides that the President shall take an oath
affirming that he was "elected by the 'will of the people' . . . ." (12)
Reference to this constitutional provision, however, was made in Judge
Skomorokha's dissenting opinion. Article 69 states that "[t]he expression
of the will of the people is exercised through 'elections', referendum, and
'other forms of direct democracy.'" (13)
Article 5 does not make any reference to the "will of the people
. . . ." It, therefore, cannot be disputed that the "will of the people" is
defined in Article 69, and not Article 5. If the authors of the
Constitution had intended that the President be elected through any exercise
of the "power of the people," they could have explicitly provided for that
in Article 104. They did not do so. Accordingly, the authors of the
Constitution intended that the President be elected by the "will of the
Further, by holding that it was constitutionally permissible for
the Verkhovna Rada to elect the President, the Constitutional Court
deprived the citizens of Ukraine the right to exercise their will through
"direct democracy." Article 69 provides that the "will of the people [may
be] exercised through elections [and] referendum . . . ." It is not just
any "election," however, which will satisfy Article 69's requirements. It
is a basic tenet of statutory construction that the court's role is to give
meaning to every word and phrase. (14)
The final clause of Article 69 limits the "will of the people"
to "forms of direct democracy." Whether it be through "elections,
referendum, or other forms of direct democracy," the import of Article 69
is clear; the "will of the people" can only be exercised through a "form of
direct democracy." The election of the President by the Verkhovna Rada
is not a form of direct democracy, and, therefore, unmistakably violates
While at first glance it may appear that any violation of
Article 69 could simply be redressed through additional amendments, a
significant problem arises. Article 69 falls under "Chapter III -
Elections. Referendum." According to Article 156, any amendment to an
article under Chapter III, must be approved by "an All-Ukrainian referendum
. . . ." (15) The regular procedures set forth in Article 155 for amending
the Constitution are, therefore, inapplicable. In this respect, one cannot
ignore that "[t]he right to determine and change the constitutional order in
Ukraine belongs exclusively to the people and shall not be usurped by the
State, its bodies or officials."(16) The authors of the Constitution
perceived the direct expression of the will of the people as such a
fundamental right that it could not be taken away from the citizens without
their explicit approval.
All the above-mentioned constitutional limitations preclude the
election of the President by means other than direct election by the people,
be it in 2004, 2006, or 2007. An additional problem, however, is posed by
draft law No. 4180, which would lead to a self-extension of the current
Parliament's term until 2007. As discussed in Judge Shapoval's and Judge
Vozniuk's dissenting opinions, an extension of the Parliament's current term
would violate Articles 38, 69, 70, 71, and 83.
On December 30, 2003, the Constitutional Court's transgression
continued and attracted negative international attention when it issued its
decision holding that it was constitutionally permissible for President
Kuchma to run for a third presidential term. With the principles enunciated
in Chapter XII of the Constitution in mind, as well as Court's decision in
"Re Dual Mandates of Verkhovna Rada Deputies," the recent decision
clearing the way for President Kuchma to seek a third term is unsupportable.
The Constitution provides that the Court's decisions are binding.
The Court's decision concerning the prohibition on dual mandates was not
overturned, and, therefore, remains on the books as a ruling to be adhered
to. While the dual mandates decision was referenced by the Court in the
latest decision, its holding was limited to the proposition that laws could
not be retroactively applied.
Nevertheless, the dual mandates decision and the "third term"
decision are logically inconsistent. In the dual mandates decision, when
examining which law to apply to disputes concerning National Deputies, the
Court looked to the constitutional norm in place at the time the individuals
were elected. Applying this decision and its reasoning leads to the
conclusion that the constitutional norm in place at the time President
Kuchma was elected should be enforced.
The Constitution as adopted in 1996 and prior legislation
addressing presidential term limits have consistently limited the President
to two terms: 1978 Constitution of Ukrainian SSR as amended on July 5,
1991 (Article 114/2); 1991 Law on the President; 1994 Law on Election
of the President; and 1995 Constitutional Agreement, which was reached
between the Parliament and President Kuchma, and signed by President
Kuchma. For instance, the 1994 Law on Elections of the President, Article
2, Section 2, under which President Kuchma ran for the first time and was
In order to be elected as the President of Ukraine a person
must be a citizen of Ukraine with the right to vote, not younger
than 35 years of age, who has resided in Ukraine no less than
10 (including the last five) years, and speaks the state language.
'One and the same person cannot be elected President of
Ukraine for more than two terms.'(17)
The applicable law as well as the constitutional norm in place at the time
President Kuchma was elected, as well as at the time President
Kuchma ran for reelection in 1999, limited the President to two terms. This
would have been the inescapable conclusion if the Court had engaged in a
straightforward application of its prior rulings. For one reason or
another, such an exercise did not take place. At this point any attempt to
reconcile the two decisions would be an exercise in futility. The
constitutional norm was not uniformly applied. The Court applied a
'different standard' to National Deputies in 1997 than it is now applying to
President Kuchma. (18) The court's holding unfortunately illuminates what
appears to be a pervasive lack of fair and evenhanded application of the
Recently, several members of Parliament have reintroduced draft
laws which seek to amend the same constitutional provisions as did
previously failed constitutional reforms. The Constitution, however,
explicitly prohibits such a course of action. Specifically, and
incontrovertibly, the Constitution provides in Article 158 that a "draft law
on introducing amendments to the Constitution . . . considered by the
Verkhovna Rada . . . and not adopted, may be submitted no sooner than
one year from the day of the adoption of the decision on this draft law." As
the previous proposed constitutional reforms were defeated within the last
year, consideration of a draft law pertaining to many of the same
constitutional provisions is inappropriate.
5. Political Struggle
The above decisions stand in stark contrast to the decisions
rendered by the Constitutional Court in the early years of its existence.
In 1998, the Constitutional Court in considering the law on election of
deputies declined to review the constitutionality of the provision requiring
the political parties and electoral blocs to receive a minimum of four
percent of the popular vote in order to be elected to the Parliament.
Specifically, the court reasoned that issue presented a political question
which belongs to the jurisdiction of the Parliament itself, and not the
This decision serves as precedent for the court refusing to
consider political questions, however, the recent decisions did not allude
to this important precedent. Although the court's power to review the
proposed changes derives from Article 159, the court must be careful
not to exceed its authority and issue opinions on political questions.
Judges must not allow themselves to be drawn into political
contests between the executive and legislative branches of government.
The court should resist any temptation to involve itself in the ongoing
political struggles. Judges should be aware of the danger of becoming
entangled in politics. In this regard, they must refrain from making
pronouncements concerning political cases that are, or may come, before
them. Such occurrences, which threaten the impartiality of the judiciary
and erode public confidence in the system, must be eliminated.
For this purpose, a strong bar association must be established
and be well organized to oppose, expose, and prevent coercion of the
judiciary. Lawyers and bar associations have an obligation to speak out
against improper intrusion into the province of the judiciary and, likewise,
improper judicial conduct. In this respect, it is also important to adopt
an effective and substantive Code of Judicial Conduct.
6. Co-Equal Branch of Government
Under a theory of separation of powers (art. 6), any default on
the part of the judiciary would ideally be counterbalanced by an effective
and independent legislative branch. Conversely, any overreaching on the
part of the legislature would be nullified by an effective and independent
judiciary. In the United States, this system of checks and balances was
illuminated in the Supreme Court's decision in 'Marbury v. Madison.' The
decision established the doctrine of judicial review and cemented the
judiciary's status as a co-equal branch of government.
Given the existence of a Constitutional Court as well as a
Supreme Court in Ukraine, the organization of the judiciary is slightly
different from that in the United States. This division somewhat
complicates the doctrine of separation of powers because the courts of
general jurisdiction, in my opinion, lack the tools necessary to act as a
separate but co-equal branch of government. Nevertheless, the Supreme
Court of Ukraine, armed with the institutional safeguards provided in the
Constitution and enhanced by legislation concerning the courts of general
jurisdiction, should take the lead by adjudicating cases and dispensing
justice in harmony with the Constitutional Court.
Only together, the courts which comprise the judiciary, may
succeed in the not-too distant future in establishing themselves as a
co-equal branch of government in Ukraine. Once such framework is in
place, the government of Ukraine will be able to function most effectively
and truly advance Ukraine in a manner consistent with democratic ideals.
7. Adjudication of Election Disputes
In recent years, however, the judiciary in my opinion has
somewhat deviated from the legitimacy and logical consistency that
permeated its early decisions. Several highly visible problem areas have
developed which have raised serious concerns in Ukraine and abroad.
An area which deserves immediate attention is the adjudication of election
law disputes. The Verkhovna Rada adopted a new election law for Rada
deputies on September 24, 1997, and elections were conducted under
this law on March 29, 1998.
The law set forth both legal and administrative remedies for the
resolution of electoral disputes. The right to file an action in the courts
is clearly set forth in Article 15 of the law, and reflects a desire on the
part of the Verkhovna Rada that such disputes should ultimately be
resolved in the courts of law. This is consistent with the general
principles of Ukraine's Constitution.
In practice, however, the manner in which the courts have
addressed such disputes only highlights the weaknesses inherent in
Ukraine's current system of Courts of General Jurisdiction. First,
although the Constitutional Court considered the constitutionality of the
new election law and upheld many of its provisions, the Court held that
a number of provisions of the law were not in compliance with the
Constitution, including the provisions as to the resolution of electoral-
related disputes by the administrative process. The Court explained that
the right to file a claim in court is guaranteed by the Constitution.(19)
In addition, during Parliamentary elections of 1998 and 2002,
the Law on Elections of deputies allowed candidates to challenge the
election procedure and election results. As a result, the courts were
overloaded with disputes. In 1998, the Courts of Ukraine of all levels
reviewed 162 disputes by participants in the election process, while in
2002 the courts reviewed more than 500 disputes. (20) Adjudication
of these disputes revealed the shortcomings of the system.
The courts' resolution of the enormous number of election
disputes was characterized by inconsistent rulings and failure to take
jurisdiction, as well as the improper taking of jurisdiction, among courts
of first instance, as well as reviewing courts, and contributed to confusion
among the courts, parties and the public. In fact, some cases were heard
in seemingly improper venues. That is, they were heard in courts outside
of the geographic area in which the alleged acts took place.
For example, in 1998, the election of the mayor of the City of
Odesa was challenged in the City of Kirovohrad, which is in a different
oblast. The Kirovohrad Court invalidated the election. Likewise, a court
in the city of Lviv recently invalidated the June 29, 2003 election of the
mayor in the City of Mukachevo; again, a city in a different oblast. It
appears that someone in these instances selected a forum that would most
likely produce the results he/she was seeking.
In some cases, courts also voided election results when there
was apparently insufficient evidence that alleged wrongdoing would have
affected the outcome of the elections, which is the standard set forth for
voiding elections under the election law. Conflicting news accounts of
court decisions, coupled with the lack of published written opinions by
Courts of General Jurisdiction, have only added to the confusion, and have
prevented an accurate summary of the process in general.
As a critical presidential election approaches, it is worthwhile
to examine the specialized administrative courts created by the Constitution
and as implemented by the Law on the Judiciary, adopted in February 2002,
to adjudicate election disputes. The court will consist of approximately
sixty judges. As of December 2003, however, only nine judges have been
voted on by the Verkhovna Rada. In addition, the procedural rules for
filing and maintaining a cause of action have not been put into place. Given
the magnitude of the work which remains to be completed prior to the
specialized court being considered a fully functional tribunal, one cannot
help wonder whether the court will be operational in time to deal with any
disputes which may stem from the upcoming presidential election.
The importance of resolving the above-mentioned electoral issues
stems from the fact that the right to vote in a democratic society is one of
the most precious of all individual rights. The United States Supreme Court
has endorsed this proposition: "No right is more precious in a free country
than that of having a choice in the election of those who make the laws
under which as good citizens they must live." (21)
Voters' trust and confidence are of great significance. If
citizens cannot be assured of a fair and honest election process, they will
have no faith in other components of the political process. Social stability
rests on the individual's confidence in the electoral process to function
correctly in every respect. Courts must ensure that the process is
implemented in a proper way and must guarantee fair elections.
In addition, failure to properly address election issues will
further shake public confidence in the judiciary. Lower courts have
received negative ratings - - a negative rating of 68% according to a
urvey conducted in autumn 2001. In the fall of 2002, only 21%
approved the practice of lower court judges. In addition:
For all four court levels, a majority of respondents feel that
outside interests have some or a great deal of influence on
decision-making: Constitutional Court (52%), Supreme
Court (56%), appellate courts (55%), and local courts (73%).
Local courts were rated the lowest, as a plurality (42%) say
that this level of the judicial system is influenced a great
deal by outside interests and only 2% say that they are not
influenced at all. (22)
The public confidence in the judiciary will pummel further if
there is any uncertainty surrounding the adjudication of election disputes.
8. Ex Parte Communications
It is worthy to note that in order to ensure the principle of
independence, judges must refrain not only from conduct that is improper
but also from any conduct that could create an appearance of impropriety.
In this regard, ex parte communications must be avoided. Ex parte is
defined as "[o]n one side only; by or for one party; done for, in behalf of,
or on the application of, one party only." (23) The Supreme Court and
other lower courts currently have visiting hours where parties can
individually meet with the judges. To prevent an appearance of impropriety,
these ex parte meetings should cease immediately and all communications
between the court and the parties should be conducted in an open forum
with both parties present.
The Constitution also introduced the people's direct
participation in the judicial system through people's assessors and juries
(Art. 124). Article 127 also addressed juries, but it is unclear from this
provision whether the jurors will act as lay judges, as occurs in European
systems, or as jurors in the United States, who make findings of fact as
well as determine guilt in criminal cases and liability in civil cases. The
Constitution states that people's assessors and jurors participate in the
administration of justice "in cases determined by law."
The Law on the Judiciary states that people's assessors resolve
cases in court proceedings "in cases determined by the procedural law"
(Law Art. 65), and that juries are formed to review "disputes determined
by the procedural law" in cases at the first instance (Law Art. 68).
Complications arise because the current procedural codes do not provide
for activities of juries and people's assessors.
10. Monetary Concerns
Establishing a viable court system cannot proceed without
overcoming several economic hurdles. Obvious concerns relate to financial
matters: that adequate budgetary means for administering justice are
provided. In other words, to strengthen their independence, the courts must
receive proper funding under a separate budgetary authority and judges must
receive adequate salaries. Judges in Ukraine are under-compensated: (1)
lower court judges are paid $100 to $200 per month; (2) appellate judges
receive several hundred dollars per month; and (3) Supreme Court justices
receive approximately $1000 per month. (24)
In addition, it is necessary to pay proper attention to the
provisions of the Law on the Judiciary which established the State
Court Administration of Ukraine. Its mandate is to provide logistical,
administrative, and organizational support to the courts of general
jurisdiction, as well as other organs and institutions of the judicial
system. The State Court Administration, however, is a central organ
of the executive branch.
As a part of the executive branch, the State Court
Administration is granted with wide authority to provide the judicial
branch with financial and other assistance. Such a structure provides
an opportunity for further oversight by the executive branch over the
judiciary. It may also cause negative influence or pressure on courts and
judges. (25) Presently, however, there is a legitimate movement directed
toward making the State Court Administration a part of the judicial branch.
In sum, it should be noted many of the shortcomings addressed in
this discussion have lead to actions which have not been viewed favorably in
the international community. For instance, in early December 2003, the
Venice Commission in its opinion on the proposed constitutional amendments
The Commission [recognizes] and welcomes the efforts in
Ukraine to reform the system of government in a way bringing
Ukraine closer to European democratic standards. The precise
solutions chosen in the various drafts however do not yet seem
to have attained that aim and would introduce other amendments
to the Constitution that would appear to be a step backwards.
A member of the committee also warned: "A society where rights are not
secured and the separation of powers [not] established has no constitution
at all." Similar sentiments and criticisms were reflected in the January
27, 2004, Council of Europe, Parliamentary Assembly, Report: Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee).
The upcoming weeks will determine whether Ukraine will move
forward as a democratic nation supporting a civil society which protects
individuals rights under the rule of law, or will take a "step backwards" as
the Venice Commission has recently noted. To avoid the latter, the
judiciary must maintain its independence and dedicate its efforts towards
For the judiciary as a whole, as a co-equal branch of government,
to achieve independent status and to command respect from the citizens of
Ukraine as well as from the other branches of government, its individual
components, judges, bear the primary responsibility for the realizing those
The actions of individual judges will resonate throughout the
judiciary and the negative and positive external opinions which accompany
those actions will be imputed to their colleagues. Once this proposition is
acknowledged, the judges will be able to harness their strengths to seize
upon the judiciary's true potential.
Put simply, judges will not be respected until they respect
themselves. Such a responsibility may not under any circumstances be cast
aside lightly. Ukraine's future depends on an independent judiciary and it
is not too late for judges to fulfill their constitutional mandate. (END)
Bohdan A. Futey is a Judge on the U.S. Court of Federal Claims in
Washington, DC and has been active in various Rule of Law and
Democratization Programs in Ukraine since 1991. He served as an advisor
to the Working Group on Ukraine's Constitution, adopted June 28, 1996.
FOOTNOTE: We thank Bohdan A. Futey for making a copy of his
important presentation at the "Ukraine's Quest for Mature Nation
Statehood, Roundtable V" held last week in Washington, D.C.
available to The Action Ukraine Report for publicaton. (EDITOR)
1 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.
Ed. 60 (1803) (establishing the doctrine of judicial review).
2 Visnyk Konstytutsiinoho Sudu Ukrainy 1 (1998):34.
3 "Re K.H. Ustymenko," Visnyk Konstytutsiinoho Sudu
Ukrainy 2 (1997):31.
4 This decision is similar to that reached by the
United States Supreme Court in Baker v. Carr, 369 U.S. 186 (1962)
(holding that the American judiciary lacks jurisdiction to review political
5 "Re Dual Mandates of Verkhovna Rada Deputies,"
Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):5.
6 Although the proposed changes seek to amend
approximately thirty articles in the Constitution, these comments mostly
focus on the changes to Article 103 and accompanying transitional
7 Draft 4105.
8 Draft 4180.
9 Decision 1-39 (draft 4105).
10 Ukr. Const., art. 5, paragraph (para.) 2.
11 Id., art. 103, para. 1 (emphasis added). The
suggested proposal read as follows: "The President of Ukraine shall be
elected by the Verkhovna Rada of Ukraine. The President of Ukraine
shall be deemed elected if no less than two-thirds of the constitutional
composition of the Verkhovna Rada of Ukraine have voted in favor
thereof, by secret ballot."
12 Id., art. 104, para. 3.
13 Id., art. 69 (emphasis added).
14 Williams v. Taylor, 529 U.S. 362, 404 (2000).
15 Ukr. Const., art. 156, para. 1.
16 Id., art. 5, para. 3.
17 1994 Law on Elections of the President, Article 2,
Section 2 (emphasis added).
18 The actual name of the President in this instance
is not important. The same analysis and standards would apply to any
person in President Kuchma's position.
19 Re Law of Ukraine "On Parliamentary Elections in
Ukraine," Visnyk Konstytutsiynoho Sudu Ukrainy 2 (1998).
20 Speech by Mykhailo Ryabets, Head of the Central
Election Commission of Ukraine, Munich, February 15, 2002.
21 Westberry v. Sanders, 376 U.S. 1 (1964).
22 International Foundation For Election Systems,
Attitudes and Expectations: Public Opinion in Ukraine 2002, at 20 (2003).
23 Black's Law Dictionary 517 (5 ed. 1979).
24 Ivan Lozowy, Ukraine: "Underpaid, Underqualified,
and Under the Gun" A Profession Without Honor, Transitions Online
(May 27, 2004).
25 It should be noted that the Supreme Court,
Constitutional Court, and higher specialized courts are not subject to
the jurisdiction of the State Court Administration.
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