With the adoption of its Constitution on June 28, 1996, Ukraine took yet another step toward joining the community of democratic nations that place the rule of law and a free market economic system among its highest values. The adoption of the Constitution represents the end of one period in Ukraine’s constitutional development process and it also marks the beginning of a second period, one where “enabling” legislation must implement the rights guaranteed by the Constitution. The enabling legislation corresponding to these rights will determine the quality and character of this Constitution not only as the supreme law of Ukraine but also as documentary guarantor of the basic rights for all Ukrainians.

The main factor in the protection of rights and freedoms secured by the Constitution is the establishment of an independent judiciary in Ukraine. 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. 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 a forum for citizens to act in defense of their rights and freedoms.

The above efforts to protect individual rights, undertaken by Ukraine, have been recognized by international experts and organizations, including the Council of Europe and the European Commission for Democracy Through Law (Venice Commission).In discussing individual rights, the Constitution distinguishes between negative and positive rights. Negative rights are those which protect individuals from government interference. Basic private rights and personal freedoms such as freedom of speech, press, religion, and assembly are examples of negative rights. Negative rights are enforceable under the rule of law. The court can declare a government policy or enactment to be improper, illegal, or unconstitutional. Positive rights guarantee that the government will do something for an individual’s benefit. These rights, however, are difficult to enforce. Examples of positive rights in the Constitution include the right to employment, housing and satisfactory living standards. To include in the Constitution positive rights may limit protection rendered to negative rights.^[2]

The Constitution does not envision a unified judicial system. It distinguishes between the Constitutional Court and the courts of general jurisdiction.  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.  For example, the Supreme Court and lower courts of general jurisdiction can neither interpret 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 phased 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 this issue  to the Constitutional Court. Thus, the courts of general jurisdiction cannot be “a final arbiter” in these matters. 

Probably, 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, however, that Ukraine’s current system presents a substantial improvement over prior suggestions, such as the system it utilized in the past.  More importantly, one must be mindful that Ukraine’s decision not to model its judicial system after the system present in the United States does not represent a rejection of democratic ideals.  To the contrary, other options exist to achieve the same goals, and Ukraine is simply choosing a different option, one that prevails in some European countries.                The fact that the Constitutional Court stands above, but remains a part of, the rest of the Ukrainian judicial system is evident from the structure of the text of the Constitution.  The Constitutional Court is explicitly provided for in Chapter XII of the Constitution as “the sole body of constitutional jurisdiction in Ukraine.”  Pursuant to the Constitution’s mandate, the Verkhovna Rada, the Parliament of Ukraine, adopted the Law on the Constitutional Court on October 16, 1996, and the Court began hearing cases in January 1997.  The duties of the Constitutional Court are to decide upon the conformity of laws, presidential decrees and other legal acts with the Constitution.  Also, the Constitutional Court provides “the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”  (Art. 147).  In this regard, the Constitutional Court is the judicial power with judicial review similar to that of the Supreme Court in the United States.

Furthermore, recent decisions seem to demonstrate that the Constitutional Court, in the performance of its constitutional role, is setting binding judicial precedent.  The concept of judicial precedent is more prominent in the common law-based systems of the United States and the United Kingdom; it is typically not a prominent feature of Continental legal systems. 

In 1997, the Constitutional Court considered the issue of dual mandates and found that People’s deputies may not simultaneously hold two state positions.^[3] The lawsuit brought by residents of the City of  Zhovti Vody, involving the devaluation of bank accounts, provides an illumination of the Court’s precedent-setting activity.^[4] Considering that the Constitution flatly announces that the Constitutional Court “adopts decisions that are mandatory for execution throughout the territory of Ukraine” (Art.150), it is evident that such decisions are binding, and thus, precedential–at least until overturned.   More significantly, the Constitutional Court seems to be establishing the precedent that cases concerning citizens’ ability to protect their rights will be heard by the courts of Ukraine.

While the Constitution “enters into force from the day of its adoption,” (Art. 160) the transitional aspects of Chapter XV allow for a five year transition to a new system for courts of general jurisdiction.  Understandably, new democracies ingrained with a respect for the rule of law do not develop overnight.  The dismantling of the past system and installation of the new order require time, debate, and compromise.  The fact that Ukraine required almost five years from its Declaration of Independence to adopt its Constitution is indicative of this.   

In addition, because of the lack of consensus and as a result of political infighting the Verkhovna Rada could not adopt the Law on Judiciary until February 2002. In order to comply with the constitutional requirements, however, the Verkhovna Rada implemented a “small judicial reform” in June, 2001.

The Law “On Judiciary in Ukraine” of February 7, 2002 (further referred as “Law”) determines legal principles of the judicial branch, its organization and justice  administration (the Law came into force on June 1, 2002, except for several provisions). The Law provides that the task of the court is to render justice under the rule of law principles and thereby ensure protection of human and civil rights, corporate rights and legal interests, interests of the society and the state secured by the Constitution and laws of Ukraine (Art. 2).

As was stated above, the judicial system of Ukraine consists of the Constitutional Court of Ukraine operating under the Law "On the Constitutional Court of Ukraine" and the courts of general jurisdiction functioning under the Law "On Judiciary in Ukraine". According to the Constitution of Ukraine, courts of general jurisdiction are organized under the territorial and specialization principles (Art. 125). According to Article 19 of the Law "On Judiciary in Ukraine", courts of general jurisdiction consist of general courts (including military courts) and specialized courts (commercial, administrative courts, etc). Courts of general jurisdiction are created and abolished by the President of Ukraine 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 (Art. 20). Establishment of extraordinary  and special courts is prohibited (Art. 3).

According to Article 18 of the Law,  courts of general jurisdiction comprise: 1)district courts, 2) courts of appeals, 3) the Cassational Court of Ukraine, 4) the higher specialized courts, and 5) the Supreme Court of Ukraine.

                        District courts  are the courts  of first  instance. District general courts (rayon, city district, city, city-rayon, and military courts) decide on criminal, civil and administrative  disputes. District commercial courts (formerly "arbitration courts") are commercial courts of the Autonomous Republic of Crimea, oblasts, and cities of Kyiv and Sevastopol. Commercial courts adjudicate disputes arising from commercial relations and other disputes related to their jurisdiction according to the Commercial Procedural Code. Commercial courts operate under the Law of Ukraine "On Commercial Courts". The Law on Judiciary also provides creation of administrative courts to review disputes arising in the field of public administration and local government (administrative law disputes), except cases of administrative jurisdiction related to military matters. The system of administrative courts, however, shall be developed within three years.

                        Courts of appeals  are divided into: 1) general courts of appeals (in oblasts, cities of Kyiv and Sevastopol, the Court of Appeals of the Autonomous Republic of Crimea, military courts of appeals, the Court of Appeals of Military and Marine Forces of Ukraine, and the Court of Appeals of Ukraine), and 2) specialized courts of appeals (commercial and administrative courts of appeals are formed by the President in appellate circuits). Pursuant to the Decree of the President of Ukraine of July 11, 2001,  7 commercial courts of appeals were created in Dnipropetrovsk, Donetsk, Kyiv, Lviv, Odesa, Sevastopol, and Kharkiv with their  jurisdiction in the determined regions of Ukraine. The courts of appeals review cases both in appellate procedure and in the first instance (except for the commercial courts of appeals); they also record and analyze judicial statistics, examine judicial practice; provide methodological assistance on application of legislation by district courts, and exercise other powers (Art. 26).

                       According to Law, the Cassational Court of Ukraine shall be created in six-months and shall review cases on the date determined by the appropriate procedural law. The Cassational Court of Ukraine shall review cases in appellate order to review the proper application of the law by panels of no less than three judges, and also exercise other powers. Judges of the Court of Cassation are elected by the Parliament for a lifetime term.

                        The higher specialized courts are the highest judicial organs of specialized courts with functions to review the proper application of the law. They include the Higher Commercial Court of Ukraine (former - the Higher Arbitration Court of Ukraine), the Higher Administrative Court of Ukraine and relevant higher specialized courts created by the President of Ukraine. Disputes in the higher specialized court are reviewed by panels of judges elected for a lifetime term by the Parliament.

                        The Supreme Court of Ukraine is the highest court of general jurisdiction. It ensures equal application of laws in order to provide uniformity to the courts of general jurisdiction. The Supreme Court consists of the civil, criminal, commercial, administrative, and military chambers. The Supreme Court exercises the following powers: 1) reviews decisions of the courts of general jurisdiction in disputes within its jurisdiction and reviews all other disputes in order of cassation; 2) advises courts on application of legislation based on judicial practice and judicial statistics;  3) makes conclusions on treason or other crimes committed by the President of Ukraine; provides the Verkhovna Rada of Ukraine with written conclusion on inability of the President of Ukraine to fulfill obligations of the office due to his physical conditions; 4) resolves disputes arising from treaties of Ukraine, and represents the courts of general jurisdiction before courts of  foreign states; it also exercises other powers according to law (Art. 47). Proper functioning of the court is complicated, in my view, by the large number of judges, over  90 judges.

                        The Constitution states that the citizens of Ukraine participate in the administration of justice through people's assessors and jurors (Art. 124). The people’s assessor is a familiar concept to the Ukrainian legal community, because of its place within the Soviet-era system of socialist law. The juror is an unfamiliar concept, and the Constitution fails explicitly to define its meaning.  The fact that the Constitution combines the  participation of jurors and people's assessors in the system of justice administration reveals the legislative uncertainty and confusion concerning the ultimate role of juries in the Ukrainian legal system.

                        Pursuant to the Law "On Judiciary in Ukraine", people's assessors can be citizens of Ukraine who, in cases determined by the procedural law, resolve disputes within the court along with professional judges exercising all judge's rights while administrating justice (Art. 65). Juries are formed for conducting review of cases in the first instance under the procedural law (Art. 68). The law determines requirements for people's assessors and jurors, categories of individuals that cannot be included into the lists of people's assessors and jurors, as well as individuals that are excluded  from executing the duties of people's assessors and jurors. Pursuant to the Law "On Judiciary in Ukraine", the list of people's assessors is formed  in a six-month term, while juror lists shall be formed in a term determined by the procedural law on jurors’ participation in justice administration.             

                        Implementation of people's assessors and the jury system in Ukraine creates a problem since Ukraine  lacks sufficient and proper legislation. The Constitution of Ukraine (Art. 127) states that people's assessors and jurors participate in the administration of justice "in cases determined by law". The Law "On Judiciary in Ukraine" states that people's assessors resolve cases in court proceedings "in cases determined by the procedural law" (Art. 65), and that juries are formed to review "disputes determined by the procedural law" in cases at the first instance (Art. 68). Nevertheless, Ukraine currently lacks the special procedural law providing for activities of juries and people's assessors. Thus, in conducting the judicial reform legislators must approve without delay the new Criminal Procedural Code and the Civil Procedural Code.

                        It must be emphasized that Ukraine needs not only the above mentioned procedural codes, but also the Administrative Code, a Tax Code, and other codified laws. It is important to note that in January 2003, the Verkhovna Rada passed the Civil Code and the Commercial Code to be effective beginning January 1, 2004. The history of adoption of the Civil and Commercial Codes  (continuous disputes between deputies and other drafters, the simultaneous approval of both codes by the Verkhovna Rada, and their veto by the President and return to the Rada with proposals to bring provisions in compliance with the Constitution) is a testament that this aspect of the legal reform was accompanied with difficulties and disputes. In addition, approval of the Criminal Code on April 5, 2001, should be considered an important legislative achievement, as it excluded capital punishment. Among other achievements is the new Family Code, approved on January 10, 2002, as well as the Land Code, approved on October 25, 2001, effective January1, 2002. It included provisions on private ownership of land and created favorable conditions for commercial activities in Ukraine, including foreign investors.

            Establishing a viable court system cannot proceed without overcoming several hurdles.  Obvious concerns relate to economic and financial matters:  that adequate budgetary means for administering justice are provided.  In other words, to strengthen its independence, the courts must receive proper funding under a separate budgetary authority and judges receive adequate salaries.  In addition, the establishment of the rule of law principles rests with a development of a system  regarding enforcement of judicial decisions, and ensuring that court awards of moral damages in defamation cases do not result in a chilling effect upon free speech and debate. 

                        The development of the rule of law in Ukraine depends upon the successful transition from the command system of the Soviet era to one in which judicial decisions are respected and enforced (according to Article 11 of the Law “On 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 of Ukraine).  During the Soviet era, the law of command, as manifested through “telephonic justice,” was preeminent.  During that time, the judge was literally commanded to follow the decisions of the local Communist party bosses and procurators; such a system relegated judges and defense attorneys, both  employees of the state, to mere administrative roles. The Constitutional Court and the Supreme Court, however, are making attempts to rebuild trust in courts (a bright example is the above case where citizens of Zhovti Vody filed a lawsuit claiming depreciation of citizens’ bank accounts). 

                        According to recent survey results, decisions of the Constitutional and the Supreme Courts received a positive evaluation. Lower courts, however, have less favorable ratings, a negative rating of 68%, according to a survey conducted in autumn 2001. In the fall of 2002, only 21% approved the practice of the lower courts judges.

                        Nearly all governments enforce the decisions of their judicial systems.  Ultimately, in the United States the judiciary depends upon the executive to enforce court decisions. Perhaps the strongest argument in favor of the enforcement of judicial decisions in an emerging market economy such as Ukraine is economic.  Putting aside the moral implications of failing to enforce judicial determinations, domestic and foreign investors would be rightfully hesitant to engage in financial transactions in countries that failed to adequately protect an investor’s rights.  This hesitancy could have disastrous effects.  Therefore, it is imperative that Ukraine enforce its courts decisions, and enable the courts to provide needed stability in commercial transactions by assuring domestic and foreign investors of the objectivity and impartiality of its judicial system.

                        I would like to emphasize the importance of establishing a credible, respected, and independent judiciary.  Ukraine, more than any other country, is aware of the abuses in the past concerning the judiciary.  Moreover, courts at that time were viewed as places of punishment rather than places of justice.  That perception must be changed as soon as possible.  Ukraine already has taken great strides toward the fulfillment of that goal.  Nevertheless, those who lived under the old system still do not trust those who claim that the new system is different and better.

                       On the issue of moral damages, I am often asked by visiting jurists how moral damages in libel and slander actions ought to be handled in lawsuits.  This raises the question of 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.  Furthermore, an additional concern is that awarding high amounts for moral damages to government officials creates the appearance that the courts 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 the 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 defense.

                        Another area of concern is the adjudication of election law disputes. In 1997 the Constitutional Court reviewed the law on parliamentary elections and recognized that provisions concerning adjudication of election disputes exclusively by election commissions in the administrative procedure are illegal. The Court explained that the right to file a claim in the court is guaranteed by the Constitution of Ukraine.^[5] During parliamentary elections of 1998 and 2002 the new Law on Elections of deputies allowed candidates to challenge the election procedure and elections results. As a result, courts were overloaded with disputes. In 1998, courts of Ukraine of all levels reviewed 162 disputes initiated by participants of the election process, while in 2002 the courts reviewed more than 500 disputes.^[6] Adjudication of these disputes revealed the shortcomings of the system. The period following the elections was characterized by incoherence in the decision-making process and inability of some courts to take jurisdiction over a dispute, or improper assumption of jurisdiction by other courts, including  parties and the public. Conflicting assessments of court decisions in mass media, as well as the absence of published decisions by courts of general jurisdiction have complicated the situation even more. As a result, adjudications of election disputes were not presented in a clear way. The right to vote in a democratic society is one of the most precious of all individual rights. 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 system to function correctly in every respect. Courts  must ensure citizens that the process is implemented in a proper way and must guarantee fair elections.

                        During this period of legal reforms in Ukraine it may be worthwhile to consider the creation of a separate specialized court to adjudicate election disputes.^[7] In the alternative said adjudication should be assigned to the Specialized Administrative Court. 

                        Article 6 of the Constitution of Ukraine declares that  “[s]tate power . . . is exercised in accordance with its division into legislative, executive and judicial power.”  Therefore, this article seemingly provides for what is known as the principle of separation of powers.  Questions, however, exist as to the exact intent of this Constitutional enactment.  Is this division of powers intended to be co-equal?  While Article 6 states that the three branches of government exercise their authority within limits of the Constitution and consistent with the laws of Ukraine, an independent judiciary requires just that: independence.  Therefore, it is important to consider those areas where authority appears to overlap, and where executive and legislative authority may encroach upon the aspiration of judicial independence.

                        In this connection, it is necessary to pay proper attention to the provisions of the Law "On Judiciary in Ukraine" that established the State Court Administration. 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 of Ukraine, however, is a central organ of the executive branch.  The Law grants  the State Court Administration the following powers: 1) to provide courts, qualification commissions, and local judicial organs with proper means; 2) to provide support concerning court staff and staff training; 3) to provide necessary support for improving the professional level of judges and court staff; 4)to  prepare materials necessary to make proposals concerning the court’s budget and financing of activities; 5) to function as the main budget manager; 6) to provide finance and social assistance to judges; 7) to provide medical care and recreation for judges, and provide judges with proper housing; 8) to ensure independence, immunity, and security of judges, etc.

                        Therefore, the State Court Administration which is part of the executive branch is granted with wide authority in providing the judicial branch with financial and other assistance. In my view, this provides an opportunity for further oversight  by the executive branch over the judiciary. In addition, it may cause negative influence or pressure on courts and judges.

                        It seems somewhat inconsistent that Article 14 of the Law “On Judiciary” determines that a separate budget for the courts to be a guarantee of judicial independence (expenditures for maintenance of courts are stated in the State Budget of Ukraine under a special article). On the other hand, the Law requires setting up of a special executive authority with functions of budget management and to provide financial assistance to judges. Nevertheless, organizational support and financial management for judges of the Supreme Court, Constitutional Court, and higher specialized courts is provided not by the State Court Administration, but by offices of these courts (Art. 125).

                        Concerning 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 of the Constitution of Ukraine). This provision is extended in Article 14 of the Law "On Judiciary in Ukraine": "[w]hile administrating justice judges are independent of any influence, unaccountable to anybody, and subordinated only to the law". In particular, the Law guarantees independence of courts and judges by furnishing special procedures to elect/appoint judges. Thus, for the first term judges are appointed by the President for the period of five years. Afterwards, judges are elected by the Verkhovna Rada for a lifetime and serve in their positions till they are 65 years old (Article 12 of the Law "On Pension Provision", however, establishes that men are entitled to a pension upon reaching 60 years of age, and women at the age of 55). A judge can be dismissed from his/her position by a decision of the organ that elected or appointed the judge in cases determined by the Constitution.

                        In order to regulate the appointment procedure, the Constitution provides for the establishment of the Higher Council of Justice. According to Article 131, the Council consists of 20 members and has the duty "to submit recommendations on the appointment or dismissal of judges". In addition, the Higher Council of Justice makes decisions on violations committed by judges and prosecutors regarding incompatibility of offices. It also undertakes disciplinary proceedings against judges and prosecutors. The Law on the Higher Council of Justice was approved by the Verkhovna Rada of Ukraine and signed by the President on January 15, 1998. Only time will tell what influence, if any, the Higher Council of Justice exercise over the judicial branch.

                        The legislation of Ukraine contains a number of provisions providing for the independence of the judicial branch and for the independence of each judge. In particular, interference in administration of justice is "prohibited"; and judges are "provided" with the freedom of non-biased adjudication of disputes in accordance with their beliefs  (Art. 14 of the Law). These provisions are progressive in nature, since an independent judiciary is necessary to implement the doctrine of separation of powers and the rule of law. On another hand, the execution of relevant provisions as well as providing guarantees for courts and judges with independence seems to be quite ambiguous. The above principles remain seemingly just "a declaration on paper". Only time will tell whether these provisions are carried out into practice.

                        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 may create an appearance of impropriety. As an example, ex parte communications must be avoided. Judges, also, must not allow themselves to be drawn into political contests between the executive and legislative branches of government. Judges should be aware of the danger of becoming entangled in politics. In that regard, they must refrain from making pronouncements concerning 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 coersion of the judiciary. It is also important to adopt the Code of Judicial Conduct and to make it mandatory in force.

                        Judicial independence along with co-equality with the other branches of government in the final analysis will depend on the judges themselves, their conscience and courage.  In the United States, the Supreme Court took the lead in Marbury v. Madison (1803)^[8], establishing the doctrine of judicial review, which cemented the judiciary’s status as a co-equal branch of government.  The Supreme Court of Ukraine, armed with the institutional safeguards provided in the Constitution and enhanced by prospective legislation concerning the courts of general jurisdiction, also may take the lead by adjudicating cases and dispensing justice in harmony with the Constitutional Court.  Only together, the judiciary, which is composed of the Constitutional Court and the courts of general jurisdiction, may succeed in the not-too distant future as a co-equal branch of government in Ukraine.

                        In conclusion I would like to emphasize the importance of cooperation of three branches of government by conducting joint discussions and debates in order to successfully accomplish the judicial reform in Ukraine.

                         I am optimistic.

                         I  appreciate being given the opportunity  to offer my comments before the Committee of Legal Policy of the Verkhovna Rada. Thank you for your attention.  

            March 13, 2003

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