"A judge cannot make decisions based on expectations of the public or mass media", Anna Adamska-Gallant, international key expert on judiciary of EU Project Pravo-Justice

Sep 03, 2019 | Judiciary, Justice

Anna Adamska-Gallant is a former judge who has about 17 years of experience in criminal cases in all instances. In February 2013 – June 2018, she worked as an international judge in Kosovo on the most important cases, including war crimes, crimes against humanity, organized crime, and corruption crimes

Transparency of the judiciary activities and open communication with the public are very important. What is your assessment of the level of communication of the judiciary in Ukraine? Maybe some directions should be added, or, vice versa, changed?

In Ukraine, communication in the judiciary is on a good level. Every court, every judicial authority has its own website and social media page. There is a lot of information. The thing is in filtering it. Our experts have noticed that there is a lot of information from lawyers or for lawyers. However, the society needs a different language, more understandable for the general public. Another positive point is the fact that in Ukraine communication in courts is done by reporting judges, there are many initiatives to inform about the judiciary, for example, open days for schoolchildren and students. It should be mentioned that it is necessary to publish and disseminate information that will help a person to understand what a court is, its role in protecting human rights, why the independence of the judiciary is important for everyone. Also, it is necessary to inform on how one should behave in court, what to do when one is called as a witness. The public is not very interested in internal procedures and meetings of the judiciary authorities. Communication is, first and foremost, communication with parties to the case. The court must deliver its decision in a clear form.

Western partners have such a practice – after formal announcement of the decision, it is explained in a language understandable to people. That is, every judge must communicate in a clear language to the people why such a decision is made and the consequences that follow from it. I must say that it is important, as often afterwards the party does not appeal the court decision. It also helps a lot in work and consideration becomes quicker.

For example, there was such practice in the functioning of the Constitutional Court in Poland. In particular, if there was a 20-pages decision, it was difficult to perceive for an ordinary person. Then, the reporting judge and presiding judge met with the media and the public and explained the substance and consequences of the decision.

We are aware that there are particularities of case consideration and announcing decisions in Poland. Could you please tell about it?

The proceedings and approaches in our countries are quite similar. A significant difference is that when our judges proclaim decisions, they sit, and in Ukraine they stand. There is also no video recording of court hearings in Poland. In my opinion, video recording should be used in some cases. For example, to prevent a child from being summoned to court for a second time, his or her testimony can be recorded. However, in Ukraine there is a request for transparency of court working, so, video recording is done. Another difference is that Polish judges write a detailed reasoning for a court decision only at the request of a party. In Ukraine it is compulsory in every case.

"Model Courts" project, what are its main principles?

"Model Courts" project is aimed at increasing the level of work of courts, communication with citizens, comfort and security in court. Improvements in these areas will have a positive impact on the level of trust to the judiciary. Indeed, as European practice has shown, the very citizen's trust in the judiciary, prosecutors and police is one of the key points in building European states.

The concept behind this project consists in the following basic ideas

  • service for those who come to court
  • security in court
  • organization of the work of the court

International experts involved in this project have already presented a draft Initiative Manual that contains recommendations that can be implemented by Ukrainian courts to make them more responsive to the needs of society. Those are: better awareness, proper space usage, separate waiting rooms for witnesses from vulnerable groups, rules for treating participants in the proceedings, principles of dress code and corporate ethics, aspects of communication of court staff among themselves and with the parties to the case. An important point in the work of the project is its focus on vulnerable groups of the population. These are women and children affected by domestic or sexual abuse, victims of workplace violence, trafficking in human beings etc. The main purpose of this project is to bring people closer to the court and increase trust to the judiciary.

Concerning cases of vulnerable categories of the population. What are the specifics here and what needs to be improved in the light of international experience?

Training in this area is very important here. In particular, in many European countries, there are trainings for judges and court staff as to working with people with special needs. They help to find approach to such individuals at every stage of case consideration. It is especially difficult for such people to go through court proceedings, especially those that are in place today.

I must say that technical issues nature are also important. There are cases of domestic violence. It is necessary to limit contact between the victim and the accused. I would like to say that mostly conflict situations arise when people are waiting in the corridor for case consideration to start. This concerns ensuring security. It is therefore necessary to ensure that they can be separated.

What is your attitude to jury trial in the form that exists in Ukraine? Can such a court format be effective?

The main problem is the lack of motivation in the form of proper funding for people who choose to serve as jurors. Of course, jury involvement in the administration of justice has an impact on credibility to the judiciary. After all, people understand that jurors can also influence the course of consideration of important cases. Integrity criteria are also very important in selection process. In Poland, jury lists are approved by the city council, and candidates for these positions must have experience and respect of people. The jury is involved with the judges in the administration of justice. As to appealing and changing or canceling their decisions, it is a common practice in Europe. In the US, for example, a different model exists – there a court of higher instance cannot reverse a jury's decision on whether a person is guilty or innocent. It can only change the sentence or return the case in the event of procedural violations. In Ukraine, the jury format is close to European practice. Here the jurors work with the judges. In the US, the judge does not make a decision, but only makes sure that all procedural guarantees are met. I have heard that your country is discussing the possibility of switching to this model. This should be considered carefully – you have a different mentality and traditions.

As for the experience with the jury, I have only positive memories because I was a young judge, and the jury was experienced and I felt their support.

There is also such a very important point – in Poland, for example, the jury administers justice next to the judges and wears mantle. That is, a person does not see the difference between professional judges at a first sight. In Ukraine, I observed a different situation where jurors sit far from judges in chairs and in plain clothes. It creates a different atmosphere. They do not appear to be a part of the court.

In your opinion, how can you strike a balance between effective prevention of corruption and independence of judges?

Combating corruption is a difficult process for every country. There are many ways to combat this phenomenon in Ukraine. It is very important to declare a judge's assets. Checking the fact that property was obtained in a lawful manner plays an important role.

Authorities empowered to check the lawfulness of origin of assets should be supercritical and more rigorous in their methods. One example is the work of the PCIE when selecting judges to the High Anti-Corruption Court. It is also the responsibility of the public and journalists, as they can shed most light on dubious income or property. It is necessary to raise awareness. People need to understand that corruption is a crime and undermines the status of the state as a whole. Creating a generation that will not accept such a phenomenon as corruption takes time. Here, perhaps, is the issue of mentality as well. For example, in Scandinavian countries, an official cannot use a public credit card for private purposes.

There was a situation with one of the ministers who paid with this card for napkins and then returned the money. However, he was still dismissed because he violated the law. There have been many publications in the media about this. I am sure that in Poland or Ukraine nobody would have paid such attention to this.

Do you think that judicial reform is effective in Ukraine? What strengths and weaknesses do you see?

I see progress in judicial reform. More judges come who have a modern approach to considering cases, and they are ready to adopt European experience and standards. According to many Ukrainian lawyers, the work of the Supreme Court and the content of its decisions is one of the examples of the success of judicial reform. There are also many positive changes in the work of the NSJ. Many new training methods are applied to develop the competencies and professional skills of judges. As to laws on functioning of the judicial system, they are of sufficiently high quality, in particular, there are many guarantees for independence of judges.

Now it would be wonderful to see how they are implementation in practice. Also, we should not forget about mentality, and it takes time to change it.

Zenoviya Sukhoverska for "Ukrainske Pravo"