COMMENTARY: Revised law on Ukraine's judicial system (01/21/96)

COMMENTARY: Revised law on Ukraine's judicial system

by Judge Bohdan A. Futey

The draft of the law of Ukraine on the judicial system has recently been revised. This revised version goes further than the October 1994 draft in embodying principles, such as separation of powers, which must be embraced in order to shift from a command legal system to one based on the rule of law. Nevertheless, there are still some parts of the revised draft that could be improved in order to further ensure a smoother transition.

Concept of judicial independence

The revised draft clearly emphasizes the judiciary's equality with the other branches of government. In addition to expressly affirming the courts' independence several times, the draft contains specific provisions allowing the court to implement its power.

For example, Article 1, Paragraph 2 gives the courts the exclusive authority to interpret the law. Article 6 contains language reminiscent of Marhury v. Madison, an early case in the United States that articulated the courts' power to declare unconstitutional both legislative statutes and executive acts. Paragraph 3 empowers the courts in Ukraine to declare "enactments" unconstitutional. While this certainly covers legislation, it should also be made clear that it covers conduct of the executive branch as well. The draft, however, should also make clear whether constitutional issues are decided only by the Constitutional Senate of the Supreme Court or by all courts. Further, the law should address whether the courts are limited to concrete cases or can issue advisory opinions.

As in the previous version, the revised draft guarantees judges' tenure. Further, the revised draft states that their tenure is for life. Life tenure assures judges that they will not lose their jobs in the event of an unpopular decision. This provision, therefore, helps to maintain a court's impartiality and independence, both of which are necessary in order to maintain a democratic state.

To further ensure impartiality, the final law should prevent judges' salaries from being reduced and specify the requirements for the removal of judges. For example, if judges are to be removed by impeachment, the law should specify the procedures to be followed.

Furthermore, while Article 74 calls for all judges to have a uniform status, the revised draft still allows for bonuses to be paid to the leadership of the Supreme Court. As with the original draft, this type of "spoils" system might unduly affect judges' decisions in cases.

To further ensure the independence of the judicial branch in general, the final draft should include a provision requiring the judiciary's budget to be a fixed percentage of the national budget.

Another problem that remains is the role of the prosecutor general in the judicial system. Article 57 mandates the prosecutor general's participation in the work of the Plenary Assembly of the Supreme Court in setting forth the court's policies. The chairman of the Supreme Court can also invite other executive branch officials to participate. Associating the executive officers with the judiciary creates the appearance of impropriety by suggesting that the governmental branches are not truly separate.

All additional problem with the prosecutor's role arises as a result of the prosecutor's right to protest the court's decisions. Would this allow a prosecutor to extend a case ad infinitum? Could a prosecutor protest or appeal if the jury finds the defendant not guilty?

Concept of a unified system

Whereas the previous draft established a court system comprising three organizational pyramids, the revised draft creates a court system where all courts are "under a single umbrella." The Supreme Court of Ukraine is at the apex of this system and is composed of various specialized judicial boards. Thus, the decisions of the Supreme Court will influence the decisions of all courts and judicial institutions.

Concept of ex parte communication

The revised draft no longer requires judges to receive citizens and consider their proposals absent the other party. This change helps to emphasize the courts' impartiality in cases.

Concept of an appeal process

As in the previous draft, the revised draft recognizes the right to appeal lower court decisions, but does not clearly outline the details of appellate review. The revised draft establishes district (town) courts as courts of first instance.

Other courts serve as both courts of first instance and courts of appeal/cassation, such as the Supreme Court of the Crimea, regional, interregional. Sevastopil, Kyiv and military courts. At the top of the appellate process is the Supreme Court of Ukraine.

What is lacking in this draft is a clear system of intermediate appellate courts. The draft should clearly articulate such a system. Moreover, the draft should clarify the procedure followed in courts that have both appellate and cassational jurisdiction. Finally, the draft should further explain the function of interregional courts, especially in terms of their venue.

Concept of juries

The revised draft is still unclear as to whether juries in Ukraine serve as fact-finders or lay judges. As in the original draft, the revised law states that the jury is composed of a judge and jurors. Further, the jurors receive the same pay as professional judges.

This close association of the judge and jury suggests that jurors serve as lay judges, making decisions of law as well as findings of fact. While either role will assist in the transformation to a legal system based on the rule of law, the final version of the law should nevertheless clarify the specific role of the jury in cases.

In addition, the revised draft continues to allow for different sized juries in different courts because it grants to each court the power to determine the numerical composition of its own juries.

Finally, the age discrimination problem remains in the jury provisions, Article 78 requires jurors to be al least 30 years old. While this provision is consistent with the age requirement for professional judges, it is inconsistent with other age requirements. For example, voters and candidates for the Ukrainian Parliament need only be 25 years of age.

Concept of contempt

Although the revised draft does not use the phrase "contempt power," it does indicate that non-execution of judicial decisions shall "entail responsibility as provided by law." The revised draft goes on to provide for judicial police in order to suppress acts of disrespect to the court. In addition, the draft establishes a Service of Executing Court Decisions.

These positions describe functions analogous to those of the United States Marshals Service, the agency utilized by the federal courts in the United States when exercising their contempt power. Allowing the courts to enforce their decisions in this manner helps establish the judiciary as a co equal branch in Ukraine's system of government.

Concept of legislative initiative

While the provision expressly granting the judicial branch the power to introduce legislation has been removed from the revised draft, there remains a provision that refers to this power. The ability of the courts to initiate legislation frustrates the principle of separation of powers because it is the legislature that should make the laws. Therefore, all references to this power should be removed.

Other interesting provisions of the revised draft include:

Legal representation of indigents. Equal protection under the law.
Supremacy of international law. This provision, however, might be troublesome.)
The Presidium of the Ukrainian Parliament decides number of judges on courts. (Why not the entire Parliament?)
The Supreme Court sets policies that will guide the courts' application of legislation. (Does the law establish the concept of precedent, as set forth by the Plenary Session of the Supreme Court?)
Judges' salaries are not subject to income tax.
Continuing legal education.

While certain aspects of the law could use some "fine tuning," as a whole, this draft's emphasis on the judicial system's independence and co-equality will help to guarantee the supremacy of the rule of law. The burden then shifts to the drafters of the Constitution to embody these principles and thereby aid in Ukraine's transition from a command legal system to a legal system based on the rule of law.

Judge Bohdan A. Futey sits on the U.S. Court of Federal Claims in Washington. His comments on the revised draft of Ukaine's law on the judicial system were presented at a November 16, 1995, roundtable discussion with Deputy Chief Justice Volodymyr Stefaniuk of the Supreme Court of Ukraine.

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