Text: Oksana Gerontieva
The plenipotentiary composition of the HCJ has been restored; this condition of international partners for Ukraine has been fulfilled. What are the current pressing challenges for HCJ?
Foremost, it is worth pointing out that the election of the members of the HCJ was conducted according to the procedure completely different from the previous ones. It included a thorough interview with the members of the Ethics Council, which was composed of three well-known reputable international experts and three of ours, national ones.
Therefore, the very procedure of the competition will contribute to restore confidence in the body of judicial governance, which will be extrapolated to the entire judiciary of Ukraine.
This is a positive step towards restoring citizens' confidence in the court and confidence of our foreign partners in the fact that the reforms initiated in the field of judiciary are irreversible.
Members of the HCJ are aware of the high responsibility that the citizens of Ukraine place on the newly formed composition of the HCJ, so we should be prepared to make unpopular decisions and criticism.
As the Chairman of the Council, what priorities do you see and what goals do you set?
The HCJ is often perceived by society and judges as a punitive body, but in fact the powers of the HCJ are much broader. Above of all, these are to guarantee the independence of the judiciary and to establish an honest and professional corps of judges.
For some reason, the independence of the judiciary is considered as giving a judge too ample powers. Although, in fact, the condition for the independence of the judiciary is, first of all, elimination of any external influence on a judge in decision-making – pressure from the authorities or other external factors of interference, for example, bribery, threats.
I stress that ensuring the judicial independence does not mean immunity from liability. The other way round, responsibility of a judge under these conditions increases even more, because if there is no external influence, then the judge's illegal decision indicates the bias of the judge himself/herself.
Is there pressure on you personally or on one of the members of the HCJ? Is it hidden or explicit, from the authorities, civil society? Does someone tell you what to do and how to do it?
Now I rather feel concern on the part of the legislator, those efforts to solve at the legislative level the issues that have arisen in the process of implementing the provisions of the Law of Ukraine “On the High Council of Justice” in terms of organizing the activities of the Disciplinary Inspectorate Service.
And the public is still looking closely at our work, waiting for what decisions we will take, and according to those will evaluate our work.
I mean, there is no external pressure on me or on the members of the HCJ; on the contrary, both the authorities and the public are interested in that we start full-fledged work as soon as possible.
Our Western partners also follow the situation; provide us with the necessary methodological assistance, conduct trainings, education, and share experience.
What does the country as a whole need in order to restore confidence in the judiciary in the European sense of the word?
Confidence in the judiciary is built from the actions and decisions of specific judges: how balanced, justified and fair the court decisions will be, so the reaction of citizens will be like this. When people see that trials are open, that there are equality and competitiveness between the parties in the court, then the trust in the court will also appear.
The task of the HCJ is to contribute to this through certain mechanisms for the formation of an honest professional corps of judges and the procedure for conducting disciplinary proceedings against judges.
In Ukraine, until recently, lawyers were trained according to the standards of the old Soviet legislation, where the principle of the supremacy of the legislative act was in the foreground, and not the principle of the rule of law, which provides for the equality of everyone before the law and the inevitability of punishment for its violation. The right to a fair trial is a component of the rule of law.
We often refer to the judgements of the European Court of Human Rights, but when those are applied, legality still prevails psychologically; mentally we are still in the old dimension.
The government should also be ready for this new perception, because it shall act exclusively within the limits and in the manner determined by law. And, of course, the legislator, responsible for adapting national legislation to European standards, should. The law shall be clear, understandable and predictable.
All this requires a certain time for reflection, acceptance and implementation....
Yes, sure. We should move towards this, since society's demands for justice, especially now, in the conditions of war, are extremely high, and we should realize this.
It is also important that society matures to a correct perception of the law.
In my view: we have a lot of legal nihilism. For the most part, people do not delve into the peculiarities of law application, and what they think about is considered the only correct one.
For example, when general criticism comes from a high-ranking official, perhaps to ensure his/her own authority, PR, he/she hardly thinks that law is a science, and application of law is also a science that has its own specific forms and rules of application.
For instance, there was a road accident, there were fatalities. In society's perception, the culprit of a traffic accident deserves the highest degree of punishment, because he/she is a murderer. No one thinks about whether this offense was intentional or not – people just demand a harsh punishment, without thinking about the differentiation of the sanction.
The authorities should also be interested in the legal education of citizens, which will contribute to improve the legal culture in society, and it is the state that is responsible for ensuring the authority of the judiciary.
The shadow of corruption of judges will be evident to Ukrainians to one extent or another. What preventive measures should be taken to eradicate this phenomenon in practice?
I no longer know what additional tools are needed, because we have all of them. You just have to comply with the requirements of the laws! All you have to do is follow the laws! You know, it's like in any offense – guarantees of inevitability of punishment are necessary. We have enough mechanisms and programs to eradicate corruption; it's just a matter of ensuring that every offense is not left without appropriate response and punishment.
For punishment to come, evidence is needed, which is provided by a quality investigation. We have a lot of cases when it is loudly announced about the detention of high-ranking officials, but due to a poorly conducted pre-trial investigation, the case does not have a logical completion.
Is it possible to say that the basis of trust in judges is also formed during the competition to the High Qualifications Commission of Judges of Ukraine?
Definitely. According to the same open principle, as in the selection of members of the HCJ, the competitive selection of candidates for the position of members of the HQCJU is currently taking place.
Since 2019, the HQCJU has not been working, and this is a disaster for the judicial system. Now the shortage of judicial positions throughout Ukraine is more than two thousand. There are not enough judges in the first instance, appeallate. It is impossible to overcome the personnel shortage without the HQCJU. It is also necessary to complete the qualification evaluation of judges.
The lack of personnel affects the quality of justice, since a judge, in whose proceedings there are about two thousand cases, objectively cannot make well-motivated court decisions, there is physically not enough time for this.
The filling of the courts after the launch of the HQCJU will help to improve the quality of justice and facilitate citizens' access to justice – judgments, which are so important for the restoration of violated people's rights, will be taken faster.
As far as the competition itself is concerned. Currently, the Selection Commission has conducted interviews with about half of the candidates. We expect that approximately on March 20, the Commission will complete the selection procedure for candidates for members of the High Qualifications Commission of Judges of Ukraine. Next, the HCJ will need to select 16 candidates out of 32, the list of which will be provided to us by the selection commission.
And here the question arises: what procedure of this selection the members of the HCJ should have? The Selection Commission checked both the integrity and the professional level of the candidates, so we need to develop selection criteria that are understandable for the candidates, for the society, and for us. So that the question does not arise, on the basis of which criteria did we choose the best 16 from the best 32? Now we are working on developing a methodology for interviewing candidates for the positions of members of the Higher Qualification Commission of Judges of Ukraine with the National School of Judges of Ukraine and our Western partners.
So when will the HQCJU be formed, that both the international community and the judges themselves are waiting for? Will the HCJ have this list the best candidates for the HQCJU at least in April?
We hope that the Commission will provide a list of candidates and its conclusions earlier, somewhere at the end of March.
The HCJ, in turn, will not delay the selection process, because the HQCJU is the only body responsible for the selection of judicial personnel. With such a shortage of judges, besides, the primary qualification assessment of about two thousand judges has not yet been carried out, it is impossible to delay the formation of the HQCJU.
There are judges who have been in the selection procedure since 2017, they are waiting for appointment, and they just need to complete the selection procedure.
We expect that after the formation of the composition of the HQCJU, it will start working as soon as possible, because the judicial system requires urgent filling of vacancies for judges.
Besides, now, with the start of the work of the HCJ, the procedure for dismissal of judges has been actively begun, and this process will result in even greater personnel turnover.
As of February 2023, we had 78 applications for resignation, 10 – for dismissal on own request. Unfortunately, the number of applications is increasing.
Why do judges resign? Does the war also affect it?
I guess that the war also affects to a certain extent. The main reason is a very heavy workload; the judges simply cannot stand it either physically or psychologically.
Please explain what about the procedure for bringing judges to disciplinary responsibility?
It also underwent significant changes. The Law of Ukraine “On the High Council of Justice” stipulates that within the structure of the Secretariat of the High Council of Justice, the Disciplinary Inspectorate Service operates as an independent structural unit, which is formed to exercise the powers of the HCJ to carry out disciplinary proceedings against judges, and acts on the principle of functional independence from the Council. From August 5, 2021, after the entry into force of this norm, the distribution of disciplinary complaints among members of the HCJ was stopped. This new institution does not work yet, we have taken the first step in its creation – we have approved a new division in the structure of the Secretariat of the High Council of Justice – the Disciplinary Inspectorate Service.
Will it make the process of bringing to liability more objective?
As conceived by the legislator, including our international partners, this will reduce the influence of members of the HCJ on the initial procedure for resolving the matter of opening disciplinary proceedings.
When will the disciplinary inspectors start working?
The law provides disciplinary inspectors with broad powers in terms of preliminary examination of disciplinary complaints against judges; a member of the HCJ is de facto suspended from the preliminary verification of a complaint, and has no right to interfere in the activities of a disciplinary inspector at this stage of disciplinary proceedings.
Such powers also determine significant qualification requirements for a candidate to the position of a disciplinary inspector – a complete university education in law and who not less than fifteen years, at least eight of which are the total experience on positions of a judge, prosecutor, lawyer. At the same time, the official salary of a disciplinary inspector is slightly more than 18 000 hryvnias. In our opinion, this may create a shortage of those wishing to take the position of a disciplinary inspector, since this position belongs to the civil service with all its restrictions and a small amount of official salary.
We have not yet begun the selection, on February 7, after the HCJ became plenipotentiary we introduced the Disciplinary Inspectorate Service into the structure. Now we are working on the procedure by which we will conduct the selection, because during martial law, competitions for civil service positions are not held. Therefore, the selection of inspectors will not be carried out according to the procedure prescribed by law, and there is a certain risk in this. In particular, there may be accusations of a lack of transparency in the selection process. We actively cooperate with the legislator to minimize the risks by finalizing some provisions of the law. There was a proposal to amend the law in the form of transitional provisions so that for a certain period, while the Disciplinary Inspectorate Service is being created, disciplinary proceedings on complaints against judges would be carried out according to the procedure provided for by the previous wording of the law, but it did not get a support. Currently, the HCJ has backlogged 7857 disciplinary complaints against judges, and therefore this problem requires an urgent solution.
That is, in fact, complaints against judges are piling up, and members of the HCJ are not authorized to consider those?
Yes, the HCJ members do not carry out the procedure of the disciplinary proceedings, since the Disciplinary Inspectorate Service has not yet been formed. I think that we will solve these issues by joint efforts.
The HCJ supported the draft Anti-Corruption Program, but with reservations. What risks, in your point of view, are inherent in it and is it advisable to accept the Program without taking into account these comments?
I saw several publications in the media that the HCJ did not support the Anti-Corruption Program for 2023-2025. Actually it is not. How can one not support what is obviously necessary for the further development of our state and movement towards the European Union and NATO? We want to be there because it is a guarantee of our security and further democratic development.
We only made some comments on the draft of this Program, and the developer, the National Agency on Corruption Prevention, partially took into account our proposals.
In particular, we expressed a reservation regarding the qualification assessment procedure - it should not be repeated for judges who have already passed. Both the Venice Commission and the judges of the European community stand on the fact that such evaluation should not be a permanent process.
The second issue concerned the Public Integrity Council. We did not deny the role and importance of the participation of the Public Integrity Council in the evaluation of judges. We only emphasized the need for a legislative determination of the status of the PIC. The judge should know who exactly conducts his/her assessment, the qualifications and status of this person, that is, we insisted only on the transparency of the participation of this body in the evaluation of judges, on its clear legislative regulation and taking into account the opinion of the Venice Commission on the Law of Ukraine “On the Judiciary and the Status of Judges” dated June 30, 2017 that the decisions of the Public Integrity Council shall be of a recommendatory nature for the subject of making relevant decisions.
Please tell about e-justice, development and implementation of which was one of the key tasks for the courts before the war.
Separate modules are currently operating in the Integrated Judicial Information and Telecommunication System. Considerable funds have been spent on the introduction of e-justice.
The HCJ considers it necessary to conduct an independent external audit - what has been done in this direction, what is the state of e-justice, whether it can be developed, whether the software meets current requirements and whether all components can be integrated into a single effective product.
In my mind, the implementation of e-justice is possible only in major cities - the energy system of Ukraine has been significantly destroyed by the enemy, and situation is unlikely to improve in the near future.
Let's talk about judges and war. Do courts currently work on the front line, taking into account the movement of military clashes, what is the situation with premises and personnel?
The courts, of course, do not work on the front line, because of impossibility to ensure the safety of judges and citizens. Courts close to the places of hostilities do not work either.
Currently, 88 (13%) local courts and courts of appeal do not administer justice. There are 138 courts located in the territories temporarily not under the control of the Ukrainian authorities.
For example, does the court work in Bakhmut?
No, the court does not work there now. There are also many problems related to the need to resume the work of courts in de-occupied territories, which are either partially destroyed or plundered. Approximate estimates of funds for restoration of the premises of courts and judicial institutions currently amount to UAH 1 842 996,13 thousand.
The state is not relieved of the obligation to ensure the right of citizens to a fair trial, guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, including during the period of martial law, and therefore, legal proceedings should be carried out continuously.
In event of impossibility for the court to administer justice under objective reasons during the state of martial war, the HCJ, by its decision on the proposal of the President of the Supreme Court, changes the territorial jurisdiction of cases, and also decides on the issue of seconding a judge to administer justice to the court to which the territorial jurisdiction of cases is determined. Together, if the change in the territorial jurisdiction of cases occurred during a state of emergency or martial law, decision on secondment of a judge shall be made in the absence of the judge's consent.
In general, due to the war and annexation, we were forced to change the jurisdiction of 169 Ukrainian courts.
At the same time, taking into account the proper conditionality for the administration of justice, the territorial jurisdiction of court cases of 55 courts was restored.
And what is the situation with the courts in Kherson?
It was decided to resume the work of three local courts of Kherson and the court of appeal from February 1, but now Kherson is under constant shelling, so at the request of judges and the appeal of the State Judicial Administration, we have postponed the resumption of their work until March 1, 2023.
How many court premises and properties were lost as a result of the war?
98 court premises were damaged or completely destroyed – 12% of the total, of which 12 courts were completely destroyed. Windows were broken in 86 premises, facades of buildings were damaged, there was no electricity supply, heat supply, water drainage; ceilings, internal doors, walls, courtrooms were damaged. Most of all, the premises of judicial institutions were damaged/destroyed in Kharkiv, Donetsk, Kherson and Mykolaiv regions.
How many judges are now defending the country from the enemy?
388 representatives of bodies and institutions of the justice system defend Ukraine. Of these, 54 are judges, including judges of the Supreme Court, courts of appeal, 334 are employees of the apparatus of courts, departments of the SJA.
Unfortunately, it did not go without losses – 7 employees of the judiciary were killed either directly in the hostilities or during shelling of the premises, 9 people were injured.
How many judges stay in the occupied territories, and can we say that they are all traitors?
There is no exact information regarding the number of collaborators in the HCJ. The messages we receive testify that such cases do exist. All of these need detailed verification and investigation – whether their cooperation was voluntary or under duress. It is good that such cases are rare.
How many judges did not leave the occupied territories?
The HCJ does not have reliable data on such judges, the State Judicial Administration is trying to find out the fate of these judges and establish contact with them. The story of the judge of the Illichivskyi district court of Mariupol, Donetsk region, Yuliia Oleksandrivna Matvieieva, received a wide response. She tried to leave the occupied territory, but she was detained by the invaders and she was held captive for seven months. Thank God that the judge was released, but the fate of her husband, as far as I know, is unknown.
The fate of judges under occupation is unknown, but perhaps information is being received through closed channels?
The respective services do not provide us with this information because it has not been sufficiently verified.
And the salary of these judges is charged?
In those cases of connection absence with a judge, the meeting of judges shall decide to terminate the payment of wages. According to law they remain Ukrainian judges, we cannot dismiss them until we receive verified information.
And what about the liberated areas? Was there information about collaborating judges in the Kharkiv region?
Yes, there were such reports, in particular, about the head of the local court, who called on colleagues to cooperate with the enemy, but all this is at the stage of verification.
Do the judicial authorities have contact and cooperation with the State Security Service of Ukraine and the State Bureau of Investigation?
Today we are in the process of establishing such cooperation. When deciding on the dismissal of judges, we want to have information whether the judges are involved in collaboration activities, and whether they are citizens of another country.
In general, cooperation with all state authorities is extremely important. After all, the judicial system does not exist separately in some kind of vacuum. The activities of the courts are significantly influenced by the decision of the legislative, executive authorities, the work of law enforcement bodies, the prosecutor's office, and the advocacy. It is in the interests of judges and judicial governance that every person has the opportunity to receive adequate protection. And for the effective work of the courts, everyone needs to join forces, because we have one goal.
The HCJ, for its part, is set for constructive interaction. I am convinced that my colleagues and I will be able to achieve a fair balance of interests of both society and judges. And therefore, to fulfill the main tasks – to ensure the independence of the judiciary; formation of an honest and highly professional corps of judges; implementation of fair and objective procedures during the consideration of disciplinary proceedings on complaints against the actions of judges.