Ukraine's Legal Reform
Ambassador John E. Herbst
Remarks during a public hearing on "European Integration of Ukraine:
Legal Reforms Strategy"
Kyiv, Ukraine
April 28, 2005
The development of the rule of law and an independent judiciary go hand
in hand. Both are necessary for the fulfillment of Ukraine's aspiration
to join Europe.
In the wider Euro-Atlantic community, the rule of law is one of the
common values that unite its members in their understanding of the
basic norms of democratic society.
The good news for Ukraine is that the Supreme Court took a strong step
in the right direction last December when it became the accepted
arbiter of whether laws had been correctly adhered to during the
administration of the Presidential election. All sides should be
commended for accepting the courts as the proper venue for addressing
the issue of whether laws had been violated, as well as for accepting
the Supreme Court's ruling. Acceptance of this Supreme Court role
in resolution of last fall's election crisis affirmed to the citizens
of Ukraine and to the world that Ukrainians believe that their lives
and Ukraine's future are best served when the rule of law is the
dominant norm in society.
However, much still needs to be done to ensure that the rule of law
truly becomes the norm in Ukraine and not an exception. A
functioning and appropriate justice system must have three sturdy legs
supporting it -- an independent judiciary, a strong and principled
prosecutorial service, and an empowered and able defense
capability. Weakness in any leg of that structure threatens the
entire justice system. Therefore, the question is, are the
judges, prosecutors, and defense attorneys receiving the necessary
continuing professional education they need to stay current with
Ukraine's changing legal system and new set of laws? Have all the
procedural codes been finalized to clarify the roles of the different
elements of the justice system? Also, there is the
important question of where, under what structure, if any, will the
State Judicial Administration be placed? From our American experience,
we hope that it would not be placed under the executive branch of
government, as the court system needs to be self-administering for the
most part.
At the February 18 open meeting of the Plenum of the Supreme Court of
Ukraine that I had privilege to attend, I was heartened to hear Chief
Justice Malyarenko, Speaker Lytvyn, and Prime Minister Tymoshenko all
state clearly and firmly that an independent judiciary is a top
priority for Ukraine. These strong statements underscored their
shared vision of Ukraine as a country with an established rule of law,
and not one directed by special interests or powerful clans.
I welcome this Conference. It is essential that society,
government, parliament, and judicial authorities come to a common
understanding of what the term "independent judiciary" means and the
critical role the rule of law plays in a modern democratic and
market-based society. For without that shared vision, there will
not be an adequate appreciation of the resource commitment necessary to
establish an independent judiciary and a society based on the rule of
law. A lot of hard work lies ahead in order to
resolve contradictory legislation;
educate members of the justice system on their new respective
roles;
finalize procedural codes;
adopt and embrace new specialized laws; and to
finance facilities, salaries and training for the courts.
This must be done to ensure that all Ukrainians have equal access to
justice, that the process itself is transparent, and that all
Ukrainians are equal before the law.
The court system plays a key role in the development of economy as
well. If Ukrainian and foreign businessmen lack confidence in the court
system's fairness, they will not invest the money needed to create jobs
and economic growth.
This is very apparent today as the courts become involved in proposed
reprivatizations. I hope the case will be very few. For those
that do to court, the conditions I have just listed must clearly
apply--access to justice, a transparent process, equality of parties
before the law.
I can only speak on behalf of the U.S. Government, but I do not think
that I am wrong in stating that the international community is ready to
help Ukraine in this difficult, but essential process of reforming the
judicial system. The first step, however, is that Ukrainians must
come to an agreement on the model of an independent judiciary that they
wish to embrace. Furthermore, they must demonstrate through their
own resource commitment that there is a broad understanding that all
reforms -- political or economic -- can only succeed if the rule of law
is the dominant principle in Ukraine.
Thank you.
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Ukrainian language translation