Testimony by Judge Bohdan A. Futey (1) Hearing at the Verkhovna Rada (Ukraine Parliament) Kyiv, Ukraine, Wednesday, March 16, 2005 In the aftermath of the Orange Revolution, the recent transition of power in Ukraine has brought with it a much needed emphasis on political and economic reform. While these areas certainly warrant attention, it is imperative that legal and judicial reform receive the same level of scrutiny. It cannot be forgotten that the adoption of the Constitution on June 28, 1996, was only the first step in the development of a Ukrainian nation which places the Rule of Law and a free market economic system among its highest values. Ukraine must now focus on the second step in the process, a step where "enabling" legislation is enacted to implement the rights guaranteed by the Constitution.&n bsp; The enabling legislation corresponding to these rights will determine the quality and character of the Constitution not only as the supreme law of Ukraine, but also as documentary guarantor of the basic rights for all Ukrainians. Moreover, as with any emerging market economy, the existence of an independent judicial branch which secures these rights in accordance with Rule of Law principles is crucial to continued economic viability. Against this backdrop, the following short-term and long-term judicial reforms are recommended. 1. Fragmented judiciary The Constitution does not envision a unified judicial system. It distinguishes between the Constitutional Court and the courts of general jurisdiction. Although it would have been preferable to completely unify the judicial system in Ukraine under one Supreme Court as it exists in the United States, it must be stressed that Ukraine's current system presen ts a substantial improvement over prior suggestions, such as the system it utilized in the past. Nevertheless, a bifurcated judicial system 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. For example, the Supreme Court and lower courts of general jurisdiction can neither interpret the laws nor declare laws and acts unconstitutional. The Constitution has assigned this authority to the Constitutional Court. Therefore, if the courts of general jurisdiction are faced with issues concerning the constitutionality of laws and regulations, including official interpretation of the Constitution and laws of Ukraine, the Supreme Court is required to submit the issue to the Constitutional Court. In a similar vein, a recent suggestion to alter the structure of the judiciary to i nclude several higher specialized courts would further compound the problem. Another issue arises concerning the establishment of lower administrative courts. Although a higher specialized administrative court has been established, lower administrative courts should be organized this year pursuant to legislation adopted last year. Lastly, any restructuring of the judiciary must comport with Article 125 of the Constitution which mandates that "the system of courts of general jurisdiction [be] formed in accordance with the territorial principle and the principle of specialization." 2. 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 decisions, 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. Government officials must lead by example and abide by court decisions. 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. (2) The court's holding clearly and unequivocally prohibits National Deputies from possessing dual mandates. Yet, individuals from within the government who were recently appointed to elevated positions in the new administration have not resigned from their prior posts. Their actions plainly contradict the dual mandates decision. It is incumbent upon the new administration to enforce the prohibition on dual mandates. Also, 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. 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. 3. Juries The Constit ution 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.&n bsp; Rules should be adopted to clarify the people's participation in the judicial system as guaranteed by the Constitution. 4. Adjudication of election disputes Another area which deserves intimate attention is the adjudication of election disputes - - particularly issues of jurisdiction and venue. 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. (3) 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 t he 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. Establishing concrete jurisdictional and venue rules will eliminate forum-shopping issues which presented concern s and problems in the past. 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." (4) 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 adjudication process is implemented in a proper way. 5. 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. The appearance of impropriety is sometimes as damaging as the act itself. 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." (5) 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. 6. State court administration It is necessary to pay proper attention to the provisions of the Law on the Judiciary which establis hed 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. (6) Presently, however, there is a legitimate movement directed toward making the State Court Administration a part of the judicial branch. 7. Strengthening judicial independence in general a. Monetary Funding 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. (7) b. Miscellaneous Concerns ; The courts must ensure that their decisions are promptly published and made available to the public. The lack of published written opinions undermines public confidence in the judiciary, causes confusion in legal circles, and prevents transparency in the decision-making process. These negative side-effects were visible during the various elections which preceded the 2004 Ukrainian presidential elections. In addition, 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, the y 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. 8. Appontment and election of judges In general, 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. 85.27 and 128). To assist i n 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). To ensure that individuals selected to serve on the bench are qualified, it may be beneficial to consider employing a system of uniform testing similar to that used in Georgia. Moreover, the composition of the Supreme Court of Ukraine should be revisited; specifically, whether it is necessary for such a large number of judges to sit on the court. The United States Supreme Court is comprised of nine justices whereas the Supreme Court of Ukraine consists of over 80 judges. As the number of judges on a particular court increases, the degree of uniformity and consistency decreases. Given the Supreme Court's role as the final arbiter, the number of judges on the court should be re duced. Lastly, it is necessary to ascertain whether all procedures for appointing and electing judges are in compliance with the Constitution. 9. Adopt codes of procedure (criminal and administrative) It is imperative that an Administrative Code be established as per legislation adopted last year and that a new Criminal Code also be adopted. Further, inconsistencies in terminology and definitions between Civil and Commercial (Economic) codes should be eliminated. The two codes are in certain respects inherently contradictory as well as incompatible with other aspects of Ukraine's legal framework. Failure to reconcile the discrepancies will cause confusion and apprehension amongst investors and may inadvertently provide opportunities for corruption. In addition, it is vital to keep in mind the importance of protecting intellectual property rights. The Parliament should adopt updated and revised intelle ctual property laws in order to bring Ukraine's legislation in line with international standards. Such measures would not only increase much needed foreign investment, but would also provide a smoother and quicker accession to World Trade Organization membership. 10. Conclusion While the implementation of the above-enumerated suggestions will improve the legal framework in Ukraine, significant strides were made in the previous year which cannot go unnoticed. On December 3, 2004, the Supreme Court of Ukraine, in Yushchenko v. CEC, re-instituted in practice the theory of separation of powers and affirmed the judiciary's independence. The Supreme Court harnessed its strengths and seized upon the judiciary's true potential. The judges fulfilled their constitutional mandate by placing the Rule of Law above any individual or political interests. Simply put, the judges will be afforded respect because they respected the mselves. Putting aside the substance of its decision, the example the Supreme Court has set for Ukraine's judiciary will have far reaching implications. The theory of separation of powers no longer exists as merely a principle; rather, the day has come where the judicial branch is in application a co-equal and independent branch of government. The Supreme Court should be congratulated. It seized upon the unique opportunity in Yushchenko v. CEC to shape the law and the legal system in the same manner that the United States Supreme Court did in Marbury v. Madison two hundred years ago.8 It is now necessary to build upon the solid foundation laid by the Supreme Court and further strengthen democracy and the Rule of Law in Ukraine. 1. Judge of the United States Court of Federal Claims appointed by President Ronald Reagan in May, 1987. 2. "Re Dual Mandates of Verkhovna Rada Deputies," Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1997):5. 3. Speech by Mykhailo Ryabets, Head of the Central Election Commission of Ukraine, Munich, February 15, 2002. 4. Westberry v. Sanders, 376 U.S. 1 (1964). 5. Black's Law Dictionary 517 (5 ed. 1979). 6. 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. 7. Ivan Lozowy, Ukraine: "Underpaid, Underqualified, and Under the Gun" A Profession Without Honor, Transitions Online (May 27, 2004). 8. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) (establishing the doctrine of judicial review). Bohdan A. Futey is a Judge on the U.S. Court of Federal Claims in Washingto n, 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. Judge Futey served as an official international election observer for the International Republican Institute (IRI) during the first two rounds of the Ukrainian presidential election as well as during the repeat second round The Action Ukraine Report Washington, D.C., Thursday, March 17, 2005