President Victor Yanukovych set an ambitious reform agenda for the Government of Ukraine early in his Administration. This agenda has seen progress in some areas but run into complications in others. Many U.S. assistance programs have historically focused on assisting Ukraine’s efforts to introduce reforms in line with European norms and that is the case today as well. The ultimate goal is to fulfill the desire of the large majority of Ukrainians to integrate with Europe and build institutions based on European Standards. Of all the areas in which Ukraine seeks to introduce reform, none is more essential than the full establishment of rule of law. We are committed to helping Ukraine complete the transformation of its legal and judicial systems into ones that are fair, democratic and independent – and that are accountable to the law and to the Ukrainian people.
People’s faith in government is eroded wherever there is unequal access to the courts or selective prosecutions, when the people believe the judicial system is unfair or politicized and specifically when the system favors the elites or those with high-level connections. When such an impression gains currency, citizens will not trust the decisions of their courts or believe that the system serves their interests.
By contrast, an independent judiciary that stands between the powerful state and the individual citizen is essential to democracy. Thomas Jefferson, one of the greatest thinkers among the founding fathers of the United States of America and our third president, wrote, “An independent judiciary that will enforce the laws against the ruling class as well as the common man is essential in ensuring that government serves all people and not just those who can seize and exploit positions of power.”
What other reforms, however well intentioned, can hope to succeed in the absence of free and honest courts? Even if they are consistent with every international norm and are models of justice, laws do not enforce themselves. A qualified and independent judiciary is critical to the protection of the fundamental rights of Ukraine’s citizens and to Ukraine’s continued democratic and economic development. The importance of rule of law to economic development cannot be overstated. Without courts that can reliably settle disputes and uphold contract obligations, entrepreneurs and foreign investors look to other markets for fear that their hard work can be stolen by rivals or corrupt officials.
Earlier this year, President Yanukovych ordered that the draft legal framework for judicial reform be amended in line with Venice Commission recommendations. While this would represent an important step forward, other proposed amendments to the Law on Judiciary and Status of Judges do not advance judicial reform in a manner consistent with international norms. It is critical that all judicial reform initiatives preserve and further the independence of the judiciary and its institutions, including especially the Supreme Court, which should be the ultimate arbiter of the rights and freedoms of Ukrainians.
The same can be said of other legal reforms. We have also been advising the government on President Yanukovych’s call to bring the Criminal Procedure Code (CPC) and law on the Procuracy in line with standards set by the European Court of Human Rights. The draft CPC wisely seeks not to fix the current system, but to create a new system based upon the principle of adversariality, although it must ensure that independent judges control the proceedings. Prosecutors should not have enhanced power to choose and evaluate evidence; this is the role of the judiciary, with equal input from both the prosecutor and defense counsel.
The events of recent months have reminded us of the need for an independent judiciary overseeing an adversarial system in which the procurators and defense attorneys are on an equal footing. This is the best way for Ukrainians to defend their democratic system and their individual rights and freedoms.