Unique reset of the judicial system took place in Ukraine, says a European expert

Oct 31, 2019 | Judiciary, Justice

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The changes that occurred in Ukrainian judicial system are very comprehensive comparing with other European countries.Obviously, not all citizens have had a chance to notice and evaluate them yet.

That was stated by the key international expert of the EU Project Pravo-Justice Anna Adamska-Gallant. For two years, in the framework of the project, the EU has been supporting a process of approximation of the Ukrainian judicial system to West European standards. Anna is engaged in reforming of courts. The expert comes from Poland where she served as a judge for almost 13 years; before she came to Ukraine, she also worked almost 6 years as an international judge in Kosovo. We discussed with Anna not only how to fight with corruption in Ukraine and why it is important to have independent judiciary, but also more practical questions such as reasons for proper space allocation in court buildings and need for a separate court entrance for victims of crime.

What is the European experts’ assessment of the reform of Ukrainian judiciary?

If compared to other European countries - reset of the judicial system which has been taking place in Ukraine is really unique. While in Poland, for example, in the 1990s, we had vetted only judges the Supreme Court, here all judges have to undergo full qualification reassessment. In addition, new competitive procedure for selection of judges has been introduced, which involves several stages of assessment, including psychological testing which became mandatory. Judges are now assessed not only by their peers, but also by representatives of the Public Integrity Council, the High Qualification Commission, and international experts as it was the case of judges of the Supreme Court and the High Anti - Corruption Court.

However, public perception of the judicial system reform is far from being positive. Judges are still accused of being corrupted and being linked to politicians and oligarchs. Actually, only creation of the High Anticorruption Court has been appreciated.

Is it possible to overcome corruption in Ukrainian courts and achieve unanimously positive public appreciation?

An effective tool for fight with corruption, including in courts, is use of declarations of assets what has been already introduced in Ukraine. Declarations of judges should be thoroughly checked by both the anti-corruption bureau and the tax office. They must be also verified internally, by the judicial governance bodies. In the meantime, to reduce corruption, it is also necessary to reach out the public: people must understand that corruption undermines the mere fundaments of the state. In order to get rid of bribery, the mentality must be changed.

On the other hand, people mostly get information from the media, and there are a lot of negative messages about judges and courts.

Therefore, it may seem that the level of corruption has remained the same despite all the reforms within the judicial system. Meanwhile, according to the latest surveys conducted by some research centers the level of trust in judiciary in Ukraine has increased significantly and reached a level of about 40 %. However, it is true only for those who have their personal experience with courts. Among those who have not had any contacts with courts, only about 10% have confidence in the judiciary. One may say that in fact the judicial reform is developing in a good direction, but not everyone has had an opportunity to see results.

Could you tell what extent the judiciary has been renewed to following the reform? After all, people believe that the “old” judges are adjudicating in an “old” manner.

Interesting fact: as soon as the process of mandatory qualification reassessment and integrity check began, almost one third of Ukrainian judges quitted the system. It means that there are vacant positions which need to be filled with more than two thousands of new judges. This process is still going on, it has not been finished yet. The change of generations in Ukrainian courts is still going on. On the other hand, it cannot be ignored that number of vacancies has a negative impact on access to justice in general: judges are often overloaded now; there are no judges at all in some small courts.

The process of selection of judges of the new Supreme Court has been perceived in positively and as a high-quality exercise. People from outside the system became part of the Court: lawyers, legal advisers, academicians. There are high expectations from them.

When selecting new judges, psychological testing was used for the first time with the assistance of European experts. What is it all about?

Testing is mainly intended to detect and get rid of people who should not be judges at all, f.e. indecisive persons. A judge must take decisions, he/she cannot be afraid to do it, to take responsibility for it. Paradoxically as it may seem, sometimes people who are perceived as very good lawyers because they know the law just cannot adjudicate. I used to have such a colleague in Poland. For a year of his work as a judge he was not able to decide any single case, while other judges issued few hundreds decisions per year. The said colleague simply was not able to take a decision. He is a brilliant legal adviser now. Psychological testing helps to filter out such candidates that we need testing.

The EU Project Pravo-Justice is implementing the Model Court initiative, and you are taking part in it. Working conditions in courts are being improved as part of this initiative. However, every Ukrainian would think that the judges have everything they may want, so why they would still need the update of their workplaces. Why is the EU implementing this initiative then?

Improving courts may seem to be the last thing that is needed. Meanwhile, this is something that changes people’s perception, has a significant impact on this how they see the court, whether they will respect judgments .

It is not true that judges have everything what they want. It often happens that they do not have everything that is needed to deliver justice. What do the courts look like now? Many of them do not even have proper courtrooms, and judges hear cases in their offices. It often happens that there are no means in place to ensure the publicity of court hearings: visitors and representatives of media often have no place to sit, because the courtrooms are small.

What does the courtroom look like? The cage is the most impressive piece of furniture in the court room. It often happens that a judge`s bench is small and placed somewhere in the corner. There are no proper waiting areas, space for victims, for lawyers. If the court operates of a court as an institution. Meanwhile, it must be remembered that judges issue their judgments in the name of Ukraine. We are trying to follow European standards by promoting the “customer-based” approach in courts. This means that the courts should respect both the visitors and the staff. It requires that proper working conditions are provided for judges and the court staff, and that the needs of all court – users are treated with respect.

There are many things that should be improved in Ukrainian courts. Some of them are quite easy to reach, such as providing the minimum information about the exact venue of a hearing. In many European countries, such notifications are displayed right next to the relevant courtrooms so it is much easier to learn where a case is heard. In Ukraine, lists of cases are usually printed out with six type font on A4 sheets, and placed on the board at the entrance. As a result, people can only guess where their trial takes place.

There should be ramps in court buildings to facilitate entry for people with abilities. There should be a separate entrance and waiting areas for the victims of serious crimes to protect them from a contact with a defendant, and as a result – of secondary victimization. In general, when handling such “vulnerable” groups of court users, some special work must be carried out: psychologists are needed to get victims prepared for the processes, and under no circumstances should a meeting or conversation between the abuser and the victim happen, as this may traumatize the victim. We help implementing such solutions in several courts for the moment – not everywhere.

You worked as an international judge in Kosovo. Which of these experiences could be used in the eventual reintegration of the Donbas?

The situation in the Donbas is not like the one in Kosovo because the region is unambiguously recognized as a part of Ukraine. Therefore, cases against perpetrators of various criminal offences committed in a course of this conflict should be tried by Ukrainian courts rather than by international ones. It seems reasonable that judges and prosecutors are being trained already how to works on such criminal offences. Amnesty was applied in Kosovo, which perhaps should be considered in Ukrainian context. The extent of amnesty will be a political issue though.

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