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  • Writer's pictureThe Paladins

Fragments from a War Diary, Part #233

Like Leopold von Sacher-Masoch, I like the strange and bizarre side of his home town of Lviv. It was always full of the most unusual people, like the strange and unusual lady I met last night who addressed me in fluent Polish and Yiddish. That was fine; it was an eccentric choice of languages with which to speak to me, since I speak neither of them, but it encapsulates the polyglot atmosphere of this icy cultural paradise on the edge of Europe’s eastern war zone.

I was also talking to my good friend last night about Ukraine’s legal system. The problem in Ukraine is a post-Soviet hangover about what Judges are really supposed to do in society. In the Soviet Union, a Judge was not someone who resolved disputes between parties or resolved complaints by individuals about the state (administrative law) or complaints by the state about individuals (criminal law). Instead Judges were instruments of state authority who simply did what the Communist Party told them to and as such they were regarded as low-level bureaucrats rather than as senior civil servants, as they are typically regarded in the West. The net result is that the traditions of Judges being an independent branch of government quite separate from the executive and legislative branches and holding those other branches to account is virtually unthinkable in modern Ukraine. Rather what Judges imagine themselves as doing is simply taking orders from government officials to do their bidding. That is why conviction rates for criminal defendants remain so overwhelmingly high in both Ukraine and Russia. It is not the job of Judges to adjudicate guilt; it is their job to find guilt upon the request of the Police and/or the Prosecutor’s Office as instruments of state power.

Faced with this sort of mentality, the role of lawyers in Ukraine is to negotiate their way around governmental institutions, including permits, permissions, regulations and taxation, and including things that need judicial approval or sanction, through their knowledge of the laws and regulations and their close relationships with public officials and Judges. Now to an extent this is the role of lawyers in any civilised legal system; but in Ukraine, because the Judiciary is an often overlooked branch of government, with low social status, it entails that lawyers are the people who arrange for Judges to sign pieces of paper that the lawyers sign. In other words, because Judges do not see themselves as independent and impartial arbiters of the law, they can be bought. A lawyer goes to a Judge and says “I need a judgment” and “by the way, I have prepared one and can you please sign it?”. And that is what the Judge does and the Judge is paid by the lawyer and everyone is happy. This is corruption, of course. It is classic Ukrainian corruption, and working out how to get rid of it is one of the challenges facing modern Ukraine.

It is a problem straight out of communism, because I have seen precisely the same thing in the former Yugoslavia. In the former Yugoslavia the judiciary are a little bit further along the process of imagining themselves as senior civil servants independent of government and with a role in holding them to account, because there has been greater interaction with the European Union accession process than in Ukraine and upholding standards of rule of law, including judicial independence, is something that the European Union considers essential. So countries such as Serbia, Croatia, Montenegro and North Macedonia have been coming to terms over the last decades with the idea that Judges do not just do what politicians ring them up and tell them to do or do not just rubber-stamp decisions of the Police. It is a slow process to be sure but the idea of judicial independence is at least understood whereas in Ukraine it is not yet really understood at all and this is one of the issues facing Ukraine in the root-and-branch public administration reform required if Ukraine is going to advance in her course towards EU membership.

I am not saying that Ukraine is the only European country in which lawyers prepare draft judgments for Judges; that is something I have seen elsewhere, I am very ashamed to say. I have in mind one country in particular in which Prosecutors write judgments for Judges and this is something that absolutely should not happen because Judges should serve as a check on Prosecutors’ power and this does not always happen as it should, even in western Europe. Nevertheless in Ukraine the problem is of an altogether greater magnitude; the concept of due process (giving both sides an opportunity to comment or provide evidence before making a balanced decision based upon the competing evidence and arguments of the parties) is virtually unheard of in Ukraine. Indeed Ukrainian Judges just don’t understand this idea, in my experience - and I have been working with the legal system of Ukraine for about 20 years in different capacities. It’s bad.

There is a class of young lawyers in Ukraine who do understand about due process - I remember once going to an arbitration seminar in Kyiv in about 2015 in which the idea was to introduce due process and western standards of oral and trial hearings to Ukraine. However the younger Ukrainian lawyers with an understanding of these ideas have no hope persuading Ukraine’s Judges, who for the most part are a bunch of elderly dinosaurs. Moreover a number of the most successful members of the legal class in Kyiv have fled the country, having had the opportunity to do so having been servants of Ukraine’s now disbanded Oligarch class. In the meantime, standard practice remains that if you want a court judgment in Ukraine you pay a lawyer to go and get a court judgment saying what you want. This has to change and it is going to be a massive job and we’re not focusing on it now but we should do. In the interim, if you fancy a bit of litigation in the Ukrainian legal system, then Leopold von Sacher-Masoch might be just the idol for you.

Other than that, today has been tiring and rather thankless so far. At the kitchen I spent most of the after lifting giant bags of flour and sugar. We’re moving imminently from our current run down premises in the back of a school parking lot to a superior new site slightly further from the city centre and built in its entirety by a wonderful and admirable team of volunteers who have skills in construction that I certainly don’t. Apparently they’ve wired the place in with heating now so the rest of us can actually work there. The flour and sugar had to be packed into vans as part of the move and tomorrow we’re spending the day cleaning and tidying the old premises before we close their doors. I have become sentimentally attached to the old site and I will be sad in a way to leave it behind although my God it really is run down. There was some other stuff going on. One of the vans appears to have had a bullet shot through the side window and we were all examining the car in the dark with a halogen lamp, which also seems to have lost its accumulator, so that was rather exciting.

Although Kyivstar have proudly announced that the network is up and running again, it’s not at least on my ‘phone so I don’t know where anything is. We’ve all had to revert to physical addresses and real directions and making plans to meet friends by actually talking to one-another rather than sending instant messages to one-another. There’s nothing wrong with that. I might go to dinner tonight with some friends, if I can find the place in the wet slushy dark. Or I might just head to Moss Eisley Space Port (my name for my favourite bar in this the frozen Saigon) one more time for their typical liquid dinners of multiple shots of limoncello. Of Leopold von Sacher-Masoch’s two varieties of perversion, it would seem that I lean towards masochism.


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