A new law that allows court rulings to remain secret represents a new low for Ukraine’s notoriously corrupt and non-transparent judiciary, critics say.
With the signing of the law by President Viktor Yanukovych on Nov. 11, it will now be up to judiciary governing bodies to decide which court rulings can be published on the http://reyestr.court.gov.ua online database.
Such changes have left Ukraine’s legal community concerned about the transparency of court rulings, and how much the measure will further reduce accountability of the nation’s famously politically subservient judges that make them.
Lawyers fear that the new law provides the authorities, well-connected businesspeople and corrupt judges with a convenient tool to leave the public unaware of shady dealings, often sealed with approval by court rulings made by corrupt judges.
Court secrecy, they say, might come especially in handy when it comes to raider attacks, land grabs and political cases, such as persecution of the opposition leaders, or those related to the upcoming elections.
The new law, in a confusing manner titled “On introducing changes to certain legislative acts on hearing cases by the Supreme Court of Ukraine” amends the existing procedure when all the court rulings are published online in the public registry.
From now on, it will be up to the Judges Council of Ukraine jointly with the State Court Administration to come up with the list of court decisions that are allowed for publication in the registry.
Svitlana Romanova, partner and head of the dispute resolution practice at the Kyiv office of Baker & McKenzie, a leading international law firm, is unequivocal when it comes to the new rules.
“To put it blatantly, this is censorship,” she says. “This amendment leads to the situation when only select court decisions will be accessible to the public, and it’s unclear what criteria will be used to select them. Basically this is about deciding what to tell the public and what not to tell.”
Svitlana Romanova, partner and
head of the dispute resolution practice at the Kyiv office of Baker & McKenzie.
Despite being far from perfect, since all the names (except those of judges and prosecutors, as well as names of the companies) are redacted and some major cases, such as the recent verdict against corrupt judge Ihor Zvarych inexplicably missing, the registry contains nearly 19 million court documents and has been an irreplaceable tool.
Romanova explains that even though Ukraine’s law is not based on the rule of precedent, surfing through the registry is a must for any lawyer in the country preparing for the hearings.
This way, she explains, it’s possible to appeal to Ukraine’s judges, who often make controversial decisions, to use common sense and see how their peers decided on a similar case.
The odds are high, she says, that this important tool will no longer be available and even if it is, its usefulness will be diminished as the new registry will only contain decisions “filtered out” by the gatekeepers.
Romanova has no illusions as to which decisions aren’t likely to be found in the register once the new rules are in place.
“As for business-related cases, everyone understands how many of these are ordered and paid for in someone’s political and business interests,” she says. “I am more than sure that those cases are the ones to be hidden, so that no one will know about them.”
Romanova is confident that the court rulings that allow raider attacks or property seizures will be the ones most likely to remain secret, mainly to prevent unwelcome publicity, especially outside of the country.
Kateryna Tarasova, board chairman of Ukraine’s Court Association for Promotion of Justice, a Kyiv-based nongovernmental organization uniting a group of both acting and retired judges, forecasts the way the judiciary authorities will now proceed.
In a nutshell, Tarasova thinks we are now seeing the beginning of the end to the country’s court openness to the public.
“First, there will be a provision listing the grounds for not publishing the rulings, then gradually, as [October 2012 parliamentary] elections near, this list will grow longer,” Tarasova says.
“In the end, the list will have names of specific cases and there will be more and more of those.”
Yaroslav Petrov, an associate at Asters, a Kyiv-based law firm.
Yaroslav Petrov, an associate of Kyiv-based Asters law firm, has no doubts that the authors of the new amendments knew precisely what they were doing.
He describes the court registry as it is now “the only reliable source of information for legal counsels” regarding law interpretation.
Given the notorious ambiguity and cumbersomeness of Ukrainian legislation, the only way to come up with the correct reading, Petrov says, is to study how the courts have handled similar issues in the past. Petrov also points out that the amendments were adopted despite numerous negative comments of experts objecting to doing so.
Asked for comments, Iryna Berezhna, a lawmaker from pro-presidential Party of the Regions who authored the legislation containing the controversial amendments, referred the Kyiv Post to her recent Facebook post, addressed to “journalists engaging in speculations” regarding the new amendments.
Berezhna’s post contains references to Markus Zimmer, a U.S. expert invited by the U.S. Agency for International Development’s Ukraine Rule of Law Project, who analyzed the country’s court registry.
In his conclusion, however, while saying that that there is no need to keep all the court documents in a centralized database, Zimmer suggested that a number of local registries should be launched.
Additionally, Zimmer recommended establishing a system of accessing documents at the courts’ premises for a minimal fee.
Berezhna wouldn’t comment, however, as to why the amendments she came up with do not mention a network of local registries and enabling access to documents at courts that Zimmer suggested.
Natalia Petrova, deputy chief of party for the Rule of Law project, says their expert’s conclusion was mainly about making the registry more manageable and easy to operate. “It was about amending the law with several sentences, not just one, but it happened the way it did,” Petrova says.
Yet Petrova remains optimistic that the judicial authorities will come up with publication guidelines that are transparent and leave no room for manipulation.
That’s not the way that Baker & McKenzie’s Romanova feels, however.
“It’s already tough to be a lawyer or a journalist in this country, but it’s getting tougher and tougher. People are increasingly telling you what to look at and what to analyze and base your conclusions on,” she says. “And it smells very bad.”
Kyiv Post staff writer Vlad Lavrov can be reached at [email protected].
