“Judicial reform should not be a one-off effort,” Oleh Tkachuk

LB.ua spoke with Oleh Tkachuk, the Chairman of the Council of Judges, a judge of the Grand Chamber of the new Supreme Court, about the problems that exist in the judicial system, conflicts between judges, their responsibility and the consequences of the judicial reform.

Original in Ukrainian: lb.ua, interview by Viktoria Matola

In early March this year Oleh Tkachuk, a judge of the Grand Chamber of the new Supreme Court, became the Chairman of the Council of Judges. He had been working as a military judge for 16 years.

He asserts that military courts in Ukraine are urgently needed. "During my military service, I remember one or two facts of corruption. There was a clear and understandable system of military justice. I think it needs to be restored in order to protect peace and bring order within the military", Mr. Tkachuk remarks.

In 2010, he was transferred to the High Specialized Civil and Criminal Court. He says he never planned to be elected and even less – to preside over the Council of Judges. And he feels a serious responsibility imposed by this post.

LB.ua spoke with Oleh Tkachuk about the problems that exist in the judicial system, conflicts between judges, their responsibility and the consequences of the judicial reform.

"Compared with others, the courts of Luhansk and Donetsk oblasts are the best"

I saw you talking to Andriy Sadovyi at the conference break (an interview took place during the conference on the outcomes of judicial reform at Fairmont Grand, where other events were held - LB.ua).

Yes. I noticed him by chance. I decided to take the opportunity and inform him about the problem at the Shevchenkivskyi district court of Lviv. This building is not suitable for the administration of justice. I just asked Andriy Ivanovich to help with improving the conditions in this court.

In my opinion, it is important to provide judges with adequate conditions, since this affects the independent and impartial administration of justice. To write a well-grounded, balanced resolution, a judge must hold a court session, have a case hearing in the properly adapted courtroom, use a separate office, a deliberation room where he or she could go when it’s necessary to concentrate. Similarly, residents of the local community have the right to ensure that their case was considered without hurry, which may happen if judges are trying to clear the room faster in order to let their colleagues sit their hearing, but with the observance of all procedural trivia.

What was Mr. Sadovyi’s reaction?

He agreed with me that the problem with inappropriate conditions should be solved.

Will he assist with allocating another premises for the Shevchenkivsky court?

This will be a task for all state authorities of Lviv and the State Judicial Administration of Ukraine.

Since the appointment to the position of the Chairman of the Council of Judges you have visited Dnipropetrovsk, Zaporizhzhya, Luhansk and Donetsk oblasts, as well as some of Kyiv courts. What are the main problems encountered in courts and reported by judges?

In my opinion, after reforming the legislation, the Council of Judges must take into account new realities in the judicial system. This is the highest body of judicial self-government. And it should develop actions to ensure the independence of judges, control over the organization of court operation, the working conditions of judges, interaction with citizens, etc. It is important that every citizen coming to the court could receive the necessary information, as appropriate, be able to file an application, receive the basic medical aid, if needed. The Council of Judges also follows the observance of the ethical standards by judges, as well as resolving issues of conflict of interest in the judicial system.

In essence, the Council of Judges is a representative of judges and the judiciary. Other bodies - the High Qualification Commission of Judges, the High Council of Justice, the State Judicial Administration, are bodies of judiciary governance, they should assist the judiciary to administer justice without hindrance, provided the existence of properly formed judicial corps, availability of decent premises etc., to administer justice in equipped premises. They are responsible for providing staff, financing, holding judges to disciplinary responsibility, etc., while the Council of Judges speaks on behalf of each judge and the whole judicial authority in general.

What are the problems that are most often encountered in courts today?

The biggest problem is the insufficient number of working judges. In the judicial system, only about 60% of vacancies are filled. In fact, each judge has on average twice higher workload than they should. But there are courts where only one judge is administering justice. For example, in the Appeal Court of the Zaporizhzhya oblast, the number of criminal judges is five times less than provided by the state. Judges of civil jurisdiction account for only one-third of the needed number. However, judges must make a decision within the statutory deadlines (two months - LB.ua).

In fact, such a workload is a violation of the rights of judges to have proper rest. Moreover, it is a major threat to the objectivity of the decisions. After all, a judge who works 12 hours a day, at that is only in court sessions, is hardly expected to perform his work well.

Another serious problem that plagues the judiciary, is the lack of proper conditions for the work of judges. There are no deliberation rooms, and judges have to work in their offices with other employees. This could be a violation of the privacy of the deliberation room.

Of course, the deliberation room is not needed by itself. In order to make an objective decision, the judge must take a break from the session, think about the fate of the person subject to the sentence, determine whether they really deserve certain type of punishment. Many judges do not have this opportunity. Therefore, we decided to explore actual conditions of their work. We should not generalize. We must deal with the situation in each court. For example, in the Holosiyivskyi district court of Kyiv, there was no meeting of judges during the year, which led to the fact that the chief judge and the deputy chief judge were not elected. There were problems with the automated distribution of cases, and two judges in dispatch could not begin the consideration of cases, as they did not have their specialization identified. Moreover, the court did not organize citizen appointments, there was no information about its work on the court website.

People could not know in due time when their case was heard. In fact, there was no dialogue between society and this court. This is a violation of judicial ethics, the principles of judicial independence, the rights of other citizens for the speedy consideration of cases, etc.

Did the Council of Judges manage to influence the situation in Holosiyivskyi district court?

First of all, we found out how the work of the court is organized. A poor organizing is also some organizing. The court still functioned somehow. We talked to each judge, met with the court employees. We held a session of the staff and invited the judges to hold a meeting. It is the meeting of judges, as a body of judicial self-government in a particular team, that determines a lot. A judge has the right to take part in a court meeting. The law does not impose a duty on a judge to attend all meetings. However, the abuse of this right and the systematic, unjustified avoidance of participation in judicial self-government can cause serious problems in the team and, as a result, leads to problems with the organization of work and consideration of court cases. That’s what we observed in Holosiyivskyi court.

After the examination by the judges of the Council, we appealed to the State Judicial Administration to carry out a comprehensive inspection of the court, resolved the issue of holding the head of the territorial administration of the SJA to liability, because the sanitary and technical condition of the premises of this court is unsatisfactory.

In addition, we appealed to the High Council of Justice to bring to liability several judges who blocked the work of judicial self-government. As a result of such actions, the Chief Judge and the deputy Chief Judge were elected on July 9 at the Holosiyivskyi district court of Kyiv by the decision of the meeting of judges. The court is presided by Nataliya Cherednichenko. Her deputy is Tetyana Shevchenko.

The Council of Judges also suggested the uniform standard of court activities

We believe that there should be a standard of conduct for employees of the court staff. For example, in each court the staff should meet visitors, explain where they should go for help. There must be standardized requirements for the working conditions of the court, the creation of a workplace for judges or employees of the staff, etc. After developing such standards, it will be clear to the judges themselves and the bodies that influence the organization of their work, what criteria should be used to regulate the activity of the court. These questions have never been tackled before. But they are extremely important, including for improving the interaction of courts and society.

Let’s talk about the operation of the courts of Luhansk and Donetsk oblast. Are the working conditions worse in them, given that some of the courts were relocated to the government-controlled territory?

In comparison with others, courts of Luhansk and Donetsk oblasts are the best. There was a kind of filtration. The best judges and employees of the court staff moved to the territory of Ukraine. They excel not only in terms of professional activity, but in terms of their patriotic attitude.

Some judges have brought their judicial robe, the flag of Ukraine from the uncontrolled territory. Mother of the Deputy Chief Judge of the Court of Appeal of Luhansk oblast brought her son an embroidered shirt. In fact, this act could have cost her life. In Kramatorsk, near the Administrative Court of Appeal of Donetsk oblast, the staff planted a flowerbed of roses, which are a symbol of Donetsk. Some saplings were even brought from the occupied territory. Such stories of dedication cannot be neglected. And they definitely deserve respect and admiration.

At the same time, some judges complain that after the transition to the government-controlled territory they were not provided with housing. It is difficult to remain a patriot in complicated housing conditions, and to independently administer justice.

This applies to judges who have moved to Kyiv or other major cities. The judges of the Donetsk Oblast Court of Appeal have been properly provided with housing. And not only judges, but also individual employees of the court staff.

Similarly, housing was allocated for judges of the Court of Appeal of the Luhansk region. However, some judges block the holding of meetings to distribute these apartments.

Why?

Perhaps some of these judges still doubt whether they have made the right choice and remained loyal to Ukraine. I suggested discussing the problems that concern the judges at the meetings of this court, but some colleagues flinch communication. In this case, the Council of Judges should also intervene, and we have begun working on this.

How?

Let's try again and again to communicate with the judges. In most cases, informal conversation brings positive results. The council of judges may also invite judges to their meetings to discuss issues that have arisen in court. In extreme cases we will contact the High Council of Justice.

Judges should be the paragon of ethics in society. If they create artificial hindrances to the work of the court or prevent other judges from working properly, they need to bear liability for these facts. The Council of Judges, as well as the vast majority of judges in Ukraine, believes that effective work of the courts is necessary for all members of society, and proper conditions should be created for this, including equipment, technical facilities, appropriate premises.

"There should be no rush in the process of reforming the judicial system"

Another painful issue for judges is their remuneration. Legislation stipulates that they will only be able to have their remuneration increased after successful passing of qualification assessment, which will last until the end of the year, and possibly longer.

You have made a good remark. Remuneration is a very sensitive issue. It directly affects judge's independence. People act in a manner which strengthens justice if they themselves are treated justly. The situation when three judges deal with the same type and complexity of cases, but salaries are different, is astonishing at the very least.

Apparently, the law ("On the Judiciary and the Status of Judges" - LB.ua) was formulated somewhat imperfectly. We communicate with representatives of different branches of government, but the result remains the same. We only hope that the High Qualification Commission of Judges will complete the qualification assessment of the judges as soon as possible. Thus, the salaries of judges will be leveled.

The Verkhovna Rada registered amendments to the Law "On the Judiciary ..." on the establishment of higher salaries for judges, regardless of passing the qualification assessment.

Yes. And I would like this bill to be approved. In the extreme case, the amendments can be introduced which will envisage the increase in remuneration of judges after passing the tests and the practical assignment during the qualification process. In essence, upon completing this stage the judge confirms his professionalism. And they deserve a high salary. If they fail to gain a passing score under other criteria, they may be dismissedlater, but while the judge is working, he or she must have the same salary as the other colleagues who work at the similar positions.

The situation in the courts is really extremely tense. When one judge works for three, but receives a lower salary than the one who passed the qualification assessment, it seems unfair to me. In such cases, the issue of independence is being undermined. I think that some of the corruption incidents are rooted in this condition.

How much will the salaries of judges increase after successful completion of a qualification assessment?

On average, three to four times. Today, the salary of a judge is barely covering the basic human needs. As a rule, now a judge in the judicial system works for two, and in some courts even for five or seven colleagues, 12 hours a day, they rarely see their family. They should at least be able to financially support them and their relatives. Otherwise, additional psychological pressure is mounting over the judge. Meanwhile, they must be free of any influence to make decisions that society needs.

Judicial reform essentially introduced reformatting of the courts themselves. It is about eliminating the "old" ones and creating "new ones". Is it possible to question the legitimacy of court decisions made in "old" courts? After all, "new" ones have already been created, but judges have not been transferred to their staffing.

No. Courts and judges work in accordance with applicable law. The working judges are the only authorized judges, there are no others. There are no grounds to talk about a dual judicial system.

Having signed the relevant decrees on the liquidation of certain courts and the creation of others, the President gave a starting shoot for the process. But the Head of state has no influence over the judiciary today. The HQCJ and the HCJ are implementing the reform. They also take into account the opinion of the Council of Judges. There should be no extra rush in the process of reforming the judicial system. It’s a step-by-step mission. After all, this process is complex, albeit vital for the state.

"Purification of the judiciary is a natural process"

According to the information from the High Qualification Commission of Judges, today about 2,400 judicial positions remain vacant. The State Judicial Information Report states that the training of one judge costs about UAH 75,000 per year. Isn’t the judicial reform an expensive deal?

UAH 75,000, obviously, cover only training at the National School of Judges. It is also necessary to take into account the fact that one cannot become a qualified judge immediately after training. You need to gain experience at least two or three years. During this period, judges are paid salaries, provided with workplaces, with the necessary equipment and resources for work.

One can convincingly say that the judge is an expensive subject of law-making. However, there is no cheap justice. The status of a judge guarantees the independence of the judiciary, its authority. Yes, and in general, any skilled worker is a precious asset. After all, the very high qualification provides high-quality results of work.

As for the purification of the judiciary, this is a completely natural process. It is like evolution or changing of seasons. Such processes should take place in the judicial system. Working as a judge is not easy. Some people adapt to complicated circumstances, grow professionally, but some cannot cope with the work specifics. There is a professional burnout. It is rather difficult for a person to admit that their qualifications deteriorated, they need to study or change their profession. In this situation, qualification assessment and professional development at the School of Judges proves very important.

At the same time, judicial reform should not be a one-time action. The judiciary system must have a permanent filtration process. And society has to monitor the judges who work in courts. In the event that these people properly perform their duties and do not abuse powers, the public must defend the independence of the judiciary.

"It would be great that the judges bore responsibility for their activities to the state and the public"

One of the first decisions of the new composition of the Council of Judges was the warning of judges of the Supreme Court of Ukraine against impeding the commencement of the liquidation procedure. At the same time, the SCU circulated a letter stating that the Council of Judges exceeded its powers, since it has no right to interfere with the self-government of judges. Who is right in this situation?

As a retired colonel of justice and a judge with lengthy judicial experience, I adhere to the principle of making everything in accordance with the law, I strongly believe that the rules be respected. And I am sure that all members of the Council of Judges would also subscribe to this principle.

The Council of Judges indicated in its decision that no body of judicial self-government has the right to resolve any issues contrary to the law. We emphasized that the assembly of judges, including the assembly of the judicial staff of the Supreme Court of Ukraine, should act in accordance with the law. And that's all. In no case did they criticize the decision of the judges of the SCU. No one in the state has the right to unjustifiably criticize the judges and their decisions, which became binding by law and are subject to execution. It is especially true for the decision of the highest court. Only law scholars are allowed to analyze such decisions for scientific purposes.

At the same time, the Council of Judges is the executive body of the Congress of Judges, the supreme body of judicial self-governance. In the period between congresses, the Council of Judges is obliged to ensure that judges act within the limits of the law. This is the matter of judicial ethics to a certain extent.

On the other hand, the Council of Judges is the supreme body of judicial self-government over the meetings of judges of all courts, including the Supreme Court. We do not review and assess judgments passed by judges. There are appropriate procedural rules and higher courts to do this. But when colleagues, while conducting their meetings, exceed the powers granted to the meeting of judges, the Council of Judges must respond. My colleagues from the Council of Judges were guided by this principle, when adopting the above-mentioned decision on the Supreme Court.

The Council of Judges expressed doubts about the possibility of liquidation by the Supreme Court judges of the position of deputy Head of Staff of the court, although it is stipulated by law. Of course, it is not typical for the judicial system that the Council of Judges disagrees with the position of the meeting of such a respectable institution. However, the rule in the judicial system is the rule, and it must be obeyed: all judges should act within the limits of law and set an example of compliance to the law.

In our decision, we also cited the provision of the Law "On the Judiciary and Status of Judges", which stipulates that since the commencement of the work of the new Supreme Court, the Supreme Court of Ukraine and higher specialized courts should cease. And we can be criticized for it. But, I repeat, I only quoted the law.

Does the Council of Judges have leverages to influence the judges of the Supreme Court in order to accelerate the liquidation process?

I do not think that the Council of Judges should influence the Supreme Court of Ukraine. In Ukraine there is a sovereign power exercised by the President, the Parliament, the government and the courts, as provided by the Constitution.

The judiciary consists of the Supreme Court, the courts of appeal and local courts. And there are definitely no two Supreme Courts in the country. "The new SCU" administers justice from December 15, 2017, "the old one” is undergoing liquidation.

At the same time, it would be great if the judges bore responsibility for their activities to the state and the public. The situation with the SCU is frustrating. But I think the time will put everything in place.

"The pressure on judges is considerably relieved"

According to the statistics of the High Council of Justice, in 2016, 23 complaints were received from judges about pressure exerted on them. In the same year, 76 judges of Kyiv only have lodged such complaints. Could you argue that pressure on judges has increased?

You know, when you are preparing for a confession, you write down all your sins on a sheet of paper. As a result, it turns out that you’ve accumulated quite a lot of them. Especially if you do everything according to the orders of the Holy Fathers.

That’s the analogy I would like to make: The Council of Judges recommends that judges speak aloud to them if they have even the least suspicions of pressure on them. When administering justice, judges must be immaculate to themselves and to society. Otherwise, there may be a situation where the pressure factor will play against the judge, even if he or she took a stand against it and made an objective decision. Therefore, it is obvious today that judges want to be as straightforward about the factors of pressure as possible.

In fact, the pressure on judges significantly weakened. For the most part, numerous complaints from judges are intended to demonstrate to the parties the process that there was an attempt to influence the court. Even insignificant attempt matters. The other party in this case has the right to recuse the judge in order to avoid doubts whether the pressure attempt was successful or not.

Is the influence of politicians on judges considerable?

I have been elected to the judicial position indefinitely five times. Some of my colleagues were not appointed then. The MPs had some reservations against to them. Then the situation was really tingling on our nerves.

Today there is no political pressure on the judges at all. Political authorities are dismantled of influence on the appointment or dismissal of judges.

At the same time, unfortunately, there are cases where individual MPs publicly try to pressure the judges. In particular, one of the MPs (Andriy Lozovyi, Radical Party - LB.ua) in May this year claimed from the parliamentary rostrum that it is necessary to hang ten judges along Khreschatyk, saying that others should be taught a lesson.

If a Hitler Jugend member spat this out, it might sound natural for him. But these words belong to the MP of the country being at war! And it is insulting not so much towards judges, but towards the citizens of Ukraine in general...

The Council of Judges rebuffed harshly to such a statement, it submitted an appeal to Speaker Andriy Parubiy to follow closely the speeches of deputies and warn them against such statements. We did not want to popularize this statement, to disseminate this information to a wider audience, but the Council of Judges should curb such incidents.

This year there were several pogroms (assaults) in the courts. It also should not be regarded as a pressure factor for judges?

No. These cases are due to the fact that certain protest actions near the courts in Ukraine have turned into a business. When I see the protesters under the court building, I come up and ask what the rally is about and when it finishes. Once they told me like “15 more minutes, and the organizers will distribute money and we go home”. Such actions can hardly be considered a manifestation of democracy.

Of course, there are cases when there is one person with a poster. They complain that their case is not being considered for a long time. Then I suggest to write a statement. And on my part I try to find out what the reason for the delay is.

Who, in your opinion, benefits from paid rallies near the courts?

First of all, those who are fighting against Ukraine in the east. The case is not even in the courts, but in the stability of the state. Everyone must be sure that he will have the right to defend his position in court, to protect the right to property, to restore the violated rights.

On average, courts consider from one to a half to three million cases per year. Last year it was 3.9 million cases! Appellate and cassation courts cancel about 1.5 percent of verdicts in cases that are forwarded to them. The rest of the judgments remains in force.

Stability and the guarantee of justice is a very important element of security in society. And when someone is systematically trying to challenge justice, these are attempts to destabilize the situation in the country. Anyone who criticizes the judges in a biased manner is probably less than immaculate themselves. Most thieves are the loudest to yell “Catch the thief!”. I do not idealize the judicial system. I understand its problems. I am concerned about corruption among the judges. But I'm glad when such facts are revealed. I hope the system clears itself up as soon as possible.

"Military courts in Ukraine are urgently needed"

After the pogrom in the Svyatoshinsky court, and then the grenade explosion in the Nikopol court, the issue of the establishment of the Judicial Protection Service gained urgency. The Chairman of the State Judicial Administration Zenoviy Kholodniuk expects the Judicial Protection Service to be established in 2018, and by the end of this year he will appoint a head of this service.

It is necessary to accelerate the process of establishing the Judicial Protection Service as much as possible. This is important not only for the safety of judges, but also for employees of the courts, whom are more than 70,000 today, and citizens who attend the courts. We hope to see significant changes in this issue by the end of the year.

What kind of staff should be recruited in this service? Former police officers, SSU staff?

I do not think that this should be a certain category of officers. The key consideration is that these were people who are conscious of the need to protect the judicial system.

Military Prosecutor Anatoliy Matios declared the need to establish military courts. Such a proposal was expressed by the President last year. You worked as a military judge for 16 years. Is it advisable, in your opinion, to restore such a type of court?

The creation of military courts in a country that is in a state of war with the invader is a logical and appropriate step. In Ukraine, there are so-called front-line courts (although the frontline is not officially marked), where judges travel risking their own lives. In Stanitsa Luhanska village one can see the sniper’s optics beyond the contact line from the place where the court can be located. These things sound like some grim fantasy in our peaceful Kyiv office overlooking the Dnipro River.

During my military service, I remember one or two incidents of corruption. There was a clear and understandable system of military justice. I think that it needs to be restored to protect peace and order within the military sphere.

The war lasts for four years. Won’t it be late while we begin restoring military courts?

Ukraine is bordering with the land of evil for a thousand of years. Evil seems to slumber sometimes, then it wakes up ...

Do you mean Putin?

He is just the personification of evil. He would not exist without the powerful background. This requires a whole governmental machine.

Under such conditions, military courts in Ukraine are urgently needed. In my opinion, if there were military courts in the government-controlled territory of Luhansk and Donetsk oblasts, warfare might be much more efficient.

"Every day I feel that responsibility for the post of Chairman of the Council of Judges only increases"

Your election to the position of the Chairman of the Council of Judges this May was unexpected. As far as I know, you did not plan to participate in the Congress of Judges until the last day. Who persuaded you to go to the event and participate in the formation of the Council of Judges?

I would not say I was eager to join, the more so, preside the Council of Judges. I came to the event, talked with judges. And at some point, someone proposed to nominate me as a delegate to the Council of Judges.

The first thing I did is to open the text of the law and begin to read out the specific responsibilities of the Council of Judges (smiling - LB.ua). And there were quite a lot of powers. This is a very responsible job, I understood. When they voted for me as a member of the Council, one colleague approached me and said: "Oleg Stepanovich, now get nominated for the Chairman." I looked into the law again. What are the powers of the chairman of the council of judges?

The second day of the congress began. More and more judges came up with a proposal to head the Council. Finally, I obtained the required number of votes. The next morning, I woke up and felt a terrible burden ...

Of responsibility?

Exactly. And every new day I feel that responsibility associated with this is only growing.

At that time, you were mostly supported by judges of economic jurisdiction. There are rumors that Bohdan Lvov, whom you know from military courts, helped to achieve such a result.

I do not think that there was some kind of conspiracy ... To be honest, I do not know who voted for me. It is hardly possible to objectively establish such things. For me, it was a surprise, on one hand. On the other hand, there is a chance to make the courts more understandable to the people, and that the judges work selflessly and honestly.

I would be very happy to see that all judges of Ukraine work as a consolidated team of like-minded people and an army of defenders of the rights and freedoms of every person in the state.

Probably the example of Bohdan Yuryevich (Lvov - LB.ua) has shown that military judges are good leaders.

Before working in the Supreme Court I talked to him only a few times. He is a very sincere and open man. The true judge, I would say. Perhaps his behavior and an example of attitude to others played a role in electing me as the Chairman of the Council of Judges.