June 26, 2015, Vol. 2, Issue 2 How To Fix Ukraine’s Broken Legal System Editors’ Note Contents If it ain't broke, don't fi x it. But if it is broke, as Ukraine's criminal justice system is, how to 4 Is it time to scrap Ukraine’s fi x it? Does society start from scratch or simply focus on a few areas at a time? These are legal system and start over with the questions that Ukrainians are still wrestling with, nearly 24 years after the collapse of the another nation’s system? Soviet Union The U.S.S.R.'s half-life is proving to be way too long, and the legal system pro- 6 Armine Sahakyan: Judicial reform vides one of the best examples of how much damage was infl icted during those 70 years. is still a pipe dream in former Basic legal concepts are either not appreciated or in force here. Soviet Union Probable cause – It still feels like a society where police can take people away in the dead of night on any pretext. 8 Soviet social guarantees for Presumption of innocence until proven guilty – Suspects can be subject to damning pre-tri- employees scare investors, often backfi re al publicity. Putting defendants in courtroom cages announces to the world: This is a guilty person. Lengthy pre-trial detention assumes guilt and ruins lives. 10 Anders Aslund: How to reform Plea bargains – These come in handy in getting lower-level suspects to turn state's evidence prosecutors and judicial system against top-level suspects, in murders and in fi nancial crimes, and also in ensuring justice is done without lengthy and costly trials. I understand plea bargains are happening in Ukraine, 11 Ukraine’s 2015 rule of law ranking but not nearly as often as they should. Right to a public trial by a jury of one's peers – This is simply not happening in Ukraine's 12 Prosecutors rule above all judicial system. Politically-appointed prosecutors still decide it all, or too much, when it Jury trials, transparency crucial comes to commanding corruptible and subservient judges. The bottom line is that politi- 14 for building trust in courts cians don't want to give up control, through appointed prosecutors, judges and police, of who goes to jail and who doesn't in Ukrainian society. 16 Brian Bonner: Justice delayed, Right to a speedy trial – This is fl outed through lengthy pre-trial detention, big delays in tri- justice denied als and incessant political manipulation of investigations. It isn't swift and it isn't justice. 18 Directory of Legal Services Brian Mark Mariana 22 Right to speedy trial, Bonner Rachkevych Antonovych presumption of innocence Kyiv Post Kyiv Post Kyiv Post trampled Chief Editor Editor-at-large Legal Affairs Reporter 24 Only baby steps are being taking All of our contacts are available online at http://www.kyivpost.com/contacts/ toward creating independent, impartial judges in Ukraine 26 Shklyar: Ukraine looks for private sector help in enforcing court orders, judgements June 26, 2015, Vol. 2, Issue 2 Спеціалізоване видання «Kyiv Post Legal Quarterly» видається ТОВ «Паблік-Медіа». © Kyiv Post, 2015 Наклад — 7 000 прим. Розповсюджується безкоштовно. 30 Yurydychna Gazeta names best The material published in the Kyiv Post Legal Quarterly may Матерiали, надрукованi у виданні «Kyiv Post Legal lawyers by area of expertise not be reproduced without the written consent of the publish- Quarterly» є власнiстю видавництва, захищенi er. All material in the Kyiv Post Legal Quarterly is protected by мiжнародним та українським законодавством i Ukrainian and international laws. не можуть бути вiдтворенi у будь-якiй формi без письмового дозволу Видавця. Думки, висловленi у The views expressed in the Kyiv Post Legal Quarterly are not дописах можуть не завжди співпадати з поглядами видавця, який не бере на себе вiдповiдальнiсть за necessarily the views of the publisher nor does the publisher наслiдки публiкацiй. carry any responsibility for those views. Засновник — ТОВ «Паблік-Медіа» Головний редактор — Брайан Боннер Відповідальна за випуск — Наталія Бугайова Publisher: Mohammad Zahoor Адреса видавця та засновника співпадають: Chief Executive Offi cer: Nataliya Bugayova Україна, м. Київ, 01004, вул. Пушкінська, 31А, 6й пов. Chief Editor: Brian Bonner Реєстрацiйне свiдоцтво — Кв № 20588-10388Р від 18.03.2014 Sales Director: Alyona Nevmerzhytska Надруковано — ТОВ «Новий друк», Sales Managers: Elena Symonenko, Yulia Kovalenko 02660, Київ, вулиця Магнітогорська, 1, Designers: Vladyslav Zakharenko, Jurij Ternicki тел.: +38 044 537 24 00 Project Team: Mariana Antonovych, Guy Archer, Olena Замовлення № 15-1432 Gordiienko, Mark Rachkevych, Ilya Timtchenko З приводу розміщення реклами звертайтесь: Photo Editor: Pavlo Podufalov +380 44 591-77-88 Відповідальність за зміст реклами (Cover photo) Will Ukraine’s legal system Photographers: Volodymyr Petrov, Kostyantyn Chernichkin несе рекламодавець. evolve into a fair and civilized one? [KYIV POST LEGAL QUARTERLY] #02/2015 3 At left, lawyer Va- lentyna Telychenko speaks with Eugenia Tymoshenko, daugh- ter of ex-Prime Minister Yulia Tymo- chenko, and lawyer Serhiy Vlasenko in in the courtroom of the European Court of Human Rights in Strasbourg, France, on Aug. 28, 2012. (UNIAN) Is it time to scrap Ukraine’s legal system and start over with another nation’s system? By Brian Bonner number of lawyers and others who have looked written so, you understand it’s just another smokescreen be- [email protected] at Ukraine’s archaic and dysfunctional legal sys- hind another corruption scheme.” A tem have come to one inescapable conclusion: It Daniel Bilak, managing partner of the CMS Cameron needs to be replaced with one that allows Ukraine to be- McKenna law fi rm in Kyiv, also said that he doesn’t think come a rule-of-law democracy with a modern economy. Ukraine’s government is capable of reforming from within. An incremental approach, they say, will not fi x the fun- “We keep fragmenting the issues,” Bilak said. damental fl aws. “Somebody is talking about judicial reform, someone else Irina Paliashivili, founder of the RULG Legal Group, leads is talking about reform of the prosecutor. Nobody is talk- a drive among law fi rms in Ukraine to fi nd solutions to the ing about reform of legal education. All of it is one actu- legal problems, outlined in periodic “white papers,” the al unit.” next version of which will be published in autumn. Bilak said that President Petro Poroshenko’s judicial re- Her conclusion? form strategy, outlined on his offi cial website on May 27, “Throw everything out, replace it with somebody else’s will only perpetuate the existing system. laws,” Paliashvili said. “Ukraine’s legal system and judicial “The latest decree of the president plays around the edg- system need external management. Find the most modern es of reform,” Bilak said. “It keeps the existing structure system in European countries. I have no trust in the current and just makes the existing system more transparent. This judicial system, which is actually being reinforced as far as is not the wholesale institutional reform Ukraine needs.” I can see. It’s beyond fi xing.” Judicial reform is crucial to the economy. “You can- Paliashvili, who also chairs the legal committee of the not have a market economy unless you have protection of U.S.-Ukraine Business Council, said that Ukraine is stuck in property rights. Otherwise you will always have corruption. Soviet times in the legal sphere. These rights are the only leverage that business has against “What we have is a Soviet-based system and, on top of that the administrative resources of the state. It provides a piles and piles of special interest legislation of very bad qual- check on government,” Bilak said. ity. Over 20-something years, there have been piles and piles Mykola Stetsenko, managing partner at Avellum Partners of these corrupt schemes incorporated in the legal system in Kyiv, favors a more incremental approach. with zero care towards the people, towards the businesses,” “It’s not that we need to cancel all the laws in Ukraine Paliashvili said. “That also explains the incomprehensi- and start over,” Stetsenko said. “It’s impossible and we don’t ble language of the legislation. When you fi nd out why it’s need to do it.” Stetsenko cited improvements in taxation, 4 #02/2015 [KYIV POST LEGAL QUARTERLY] deregulation and steps towards “cleansing the judiciary and fi ring those actually criminal investigations that re- judges who were absolutely corrupt” as signs of progress. sult in trials and convictions, not much will While Paliashvili, Bilak and Stetsenko are focused on civil law, the change,” Stetsenko said. criminal justice system is also a mess, said Valentyna Telychenko, Judges: “The current judges are basical- a Kyiv lawyer who has represented Myroslava Gongadze, the wid- ly blackmailing society, saying only they are ow of slain journalist Georgiy Gongadze, and ex-Prime Minister Yulia experienced and only they know how to op- Tymoshenko. erate this legal system,” Paliashvili said. “If “The whole society is sick,” Telychenko said. “We have prosecutors you throw out the old system, they are no who had unlimited authority and judges who worked with prosecutors longer relevant. They cannot backmail any- and who also had unlimited authority. It’s very deep in our blood.” body. A modern system will require new Daniel Bilak Paliashvili agreed, concluding: “During the Soviet period, whatev- modern judges. You cannot replace one er real justice people had in their mentality was eliminated the hard without replacing the other. Both have to way, by throwing millions of people in the gulag and by using fake in- go.” stitutions and fake pretenses. In every person, there’s common sense On absence of jury trials: Politicians, and intelligence, but this is not translated into legislation and the legal through appointed prosecutors and oth- system.