The random assignment of cases to judges is a widely used practice to help lessen corruption in the courts and ensure that the workload is fairly distributed.

The practice came in 2010 to Ukraine and was widely hailed as an important step in improving the way that Ukraine’s notoriously corrupt judiciary operates.

But the law calling for random – or automatic – case assignment appears to be routinely bypassed by district court chiefs, who still assign whatever judge they want to hear a case, a practice known as manual selection.

So a law that was designed to improve transparency and integrity in courts is doing neither.

“This puts a lot of doubt in the outcome of a number of important court cases that are happening in Ukraine,” said Kateryna Tarasova, a board chairman of Ukraine’s Court Association for Promotion of Justice, a Kyiv-based nongovernmental organization that unites acting and retired judges. “One of the main principles could have been violated – the right to a legitimate court,” Tarasova said.

In a written response to the Kyiv Post, Ukraine’s State Judicial Administration said that the panel of judges at any particular court has the right to determine the way court cases are distributed among them should the electric supply or the computer system break down for longer than one day, so that the automatic appointment of judges is not possible.

However, the reality is that district court heads are simply bypassing the automatic assignment process by clicking an option to “allow appointing a judge manually.” This manual option is even the default option of the computer program, allowing administrators to assign their preferred judge to a particular case.

Speaking on behalf of the Judicial Administration, Volodymyr Pivtorak, its deputy head, said that courts are not required to keep records or report on the cases in which judges have been assigned by supervisors who bypass automatic assignments.

On March 2, the Judicial Administration responded to Kyiv Post inquiries on what measures are taken to ensure that the bypassing of the random selection process is not abused, referring to the Criminal Code article for "unsanctioned inteference in the work of automated court system." Yet prosecution of the court officials for "manually" appointing the "right" judges seems all the more unlikely given the extreme lack of transparency of Ukrainian courts.

In a written responce to Kyiv Post, when asked for a numerical breakdown of how many judges were appointed manually at the Shevchenkivsky district court in Kyiv, head of the court Olena Meleshak said that it was not a "public" information. The irony is that, according to Meleshak, it's up to the court head to decide which documents related to the court work the public cannot access. Similar Kyiv Post requests to the notorious Pechersk district court in Kyiv, as well as the Kyiv Appellate Court were not answered.

The European Commission for Democracy through Law – better known as the Venice Commission – “generally welcomed” the introduction of the random selection process as an improvement for Ukraine.

But Thomas Markert, secretary of the commission, said that the possibility of frequently and non-transparently bypassing the automatic selection process “looks like a window of opportunity for abuse, especially, since it’s never recorded or explained why the judge has been appointed manually.” Markert said human bias in assigning court cases should be avoided and there should be a clearly defined and transparent process for exceptions.

Markus Zimmer, a U.S. expert recently invited by the U.S. Agency for International Development’s Ukraine Rule of Law Project, said that bypassing the random selection process does not necessarily compromise the integrity of the judicial process if the instances are well-documented. Anything short of that raises suspicions.

“If the State Judicial Administration has a policy that use of the manual assignment system instead of the automated system requires no explanation, then it is placing itself in an untenable position.” Zimmer says. “A position that correctly raises suspicion on the parts of the public and the media that something fishy may be going on.”

And that is indeed what appears to be happening.

Kyiv-based lawyer Andriy Mamaliga says that he is sure that court chiefs handpicked the judges who heard the criminal abuse-of-office cases against opposition leaders Yulia Tymoshenko and Yuriy Lutsenko. The trials both ended in their convictions and stiff sentences in proceedings widely denounced as political show trials by kangaroo courts.

Judge Rodion Kireyev heard the Tymoshenko case and Judge Serhiy Vovk presided over the Lutsenko matter.

“We can assert that these judges were appointed in a manual regime,” says Mamaliga. “Yes, we would have to search for the concrete evidence, but there is no doubt that it was not assigned to them by accident.”


Read more: http://www.kyivpost.com/news/business/bus_focus/detail/123481/#ixzz1o3tzwUeI