Bohdan A. Futey, Judge of the U.S. Court of Federal Claims, discusses Ukrainian judicial problems and constitutional reform
In the 20 years Ukraine has been independent, we have seen many high-profile trials that took a long time to complete because Ukrainian legislation does not have efficient contemporary models for resolving them. The most recent such case is the Yulia Tymoshenko trial, which has proved to both Ukrainians and the world community that Ukraine cannot be modernized and de-Sovietized without judicial reform. The Ukrainian Week spoke with Bohdan A. Futey, a judge with the U.S. Court of Federal Claims who visited the Kyiv-Mohyla Academy to provide a Western view on Ukraine’s judicial problems.
U.W.: How can bribery among judges be counteracted? How does the USA fight bribery?
The USA has a Code of Judicial Ethics. If there were any bribery cases, the administration of the court system would turn to us and we would take disciplinary action. Officials in Ukraine also want to adopt a Code of Judicial Conduct which would make provisions for certain disciplinary measures. They also say that a failure to meet its norms cannot be grounds for punishment – this would require a separate law. However, if the court is self-governed, it should control the conduct of its judges on its own. There are also many procedures that definitely need to be changed. At one point, we debated with representatives of Verkhovna Rada legal committees about citizens being able to come to court and talk to judges in private. They insisted that this practice is very democratic. In the US, it is strictly off-limits. Any talks or hearings may take place only in the presence of both parties.
The American understanding of judicial power is somewhat different from the Ukrainian one. In the US, it is believed that the office of a federal judge is the final stage of a legal career – the highest position a lawyer can achieve. And everyone is trying to do everything possible to maintain this opinion about courts and judges, because it benefits everyone. As far as reality in Ukraine is concerned, let me put it this way: no one will begin to respect judges until they begin to respect themselves.
U.W.: Do the USA and other Western countries have an institution similar to the Higher Qualification Commission of Judges in Ukraine? What is your view of its authority, its place in the judicial system and the way it is formed?
In the US, there is a state-level regulation that judges have to have at least five years of legal practice. They are elected after they run for office. There are also schools for state judges in which they take additional training. Germany, France and England have similar institutions. If a law school graduate chooses to pursue the career of a judge, he studies and takes certain exams in such institutions after which he or she can become a judge. In the US, there are also federal judges who are nominated by the president. Prior to nomination, the White House itself checks their qualifications and determines whether a particular candidate meets the requirements.
Documentary proof has to be supplied to show that the candidate has practiced law for at least 10 years. This evidence should also list cases in which he was involved and on whose side, as well as the plaintiff, defendant and judge in each case. The FBI is contacted to have witnesses questioned about the psychological condition and conduct of the candidate. After this kind of examination, the president submits the nomination to the Senate, which begins its own check. It involves pretty much the same things, but additionally the American Bar Association must provide a professional evaluation of the candidate. Then he has to be approved by a Senate commission, and only after this does the Senate endorse the candidate.
As far as I know, judges will now have to pass such tests in Ukraine. It seems to me that knowledge of the subject is a sufficient condition for judges to understand the essence of cases brought before them. What Ukraine needs is a fundamental understanding of people's psyche: What kind of judges will they be by their conduct? It saddens me to say this, but Freedom House and the American Bar Association have published reports saying that Ukrainian judges possess only three to four qualities of the 15 required by international standards. The Freedom House report indicated that corruption is the greatest problem of your judicial system. Polls carried out in Ukraine show that people are losing trust in the judiciary and in everything that is taking place in the country. I would like to hope that the introduction of the Higher Qualification Commission of Judges will improve the situation.
U.W.: There has been a lot of criticism in Ukraine regarding this commission and the Higher Council of Justice which operates under the Constitution of Ukraine. Many believe that these institutions make judges dependent on the president. What is your opinion? What institutional mechanism would best secure judges’ independence from any government?
According to the rule of law, no person, regardless of their status, can be outside or above the law. Therefore, a judge has to be an honest broker, an arbiter between parties, while trying to objectively consider cases. If he is biased in his actions, trust in the judicial system falls. Under the Constitution of Ukraine, the Higher Council of Justice consists of representatives of various communities associated with law, as well as other branches of government. The Verkhovna Rada, the president, the Congress of Judges, the Congress of Attorneys, and the Congress of Representatives of Law Schools and Research Institutions appoint three members each. The All-Ukrainian Conference of Prosecutors appoints two. The Chief Justice of the Supreme Court of Ukraine, the Minister of Justice and the Prosecutor General of Ukraine are members of the Higher Council of Justice ex officio. Members of the Higher Qualification Commission of Judges are elected in the following way: six by the Congress of Judges, two by the Congress of Law Schools and Research Institutions, one by the Minister of Justice, one by the ombudsman and one by the head of the State Judicial Administration.
In the USA, the appointment of federal judges is a political matter, because the person receives recommendations from senators or congressmen in a certain state which plays a part in the decision-making process during which the president appoints any specific candidate. But what happens next? I can speak about it from my own experience. Before I was appointed a federal judge under Ronald Reagan, I was very politically engaged. But after I assumed the office, I automatically distanced myself from politics. American judges have nothing to do with politics at all. Neither the president nor other top officials dare call judges and tell them in which manner they should be independent. None of them would respond to this, because it would be perceived as an attempt to pressure the judiciary. The authority of the three branches of government in the USA is strictly regulated and they are kept separate from each other.
The judicial system in Ukraine should be reformed in keeping with the recommendations of the Venice Commission and other international organizations, because the excessively high level of politicization harms the rule of law and judicial independence. Achieving the latter is possible through long-term appointments of judges and providing them with adequate pay. In the United States, judges are not afraid that they will be financially dependent on anyone, and they can only be removed from office via impeachment, i.e., an appeal to the House of Representatives in Congress which will have to be followed by a trial in the Senate. Two thirds of the senators have to support the decision to dismiss a judge. This is why judges are not afraid to pass rulings that are unpopular with the executive government or the legislature.
Bohdan A. Futeywas born in 1939 in Buchach, Ternopil region.
1943 – emigrated with his family to Argentina
1957 – moved to the USA
1964 – graduated from Western Reserve University (Cleveland, OH) receiving a M.A.
1972-74 – Chief Assistant Police Prosecutor, City of Cleveland
1974-75 – Executive Assistant to the Mayor of Cleveland
1975-84 – founder of and partner in the law firm of Bazarko, Futey and Oryshkewych
1984-87 – Chairman of the Foreign Claims Settlement Commission of the United States
1987 to the present – Judge of the United States Court of Federal Claims; the only American of Ukrainian origin among the U.S. federal judges.
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