Judicial reform, which has been going on for five consecutive years, is extremely important both for society in general and for each of us in particular. So first, the attention was focused on the selection of judges in the Supreme Court of Ukraine and the misunderstandings that arose between the High Qualifications Commission of Judges and Public Council of Integrity. Later the declarations of the judges were subject to increased attention, and nowadays people are waiting for a reboot of the courts of the first instance.
The Chairman of the Council of Judges of Ukraine, the judge of the Grand Chamber of the Supreme Court Oleh Tkachuk talks about what has already been done and what tasks the system faces in the nearest future.
“Now all – both people and judges – want to see the new face of the Supreme Court,” Oleh Tkachuk explains to Opinion, “and it is necessary to do something to make sure this face is new, and first of all, we need to make decisions. To manage to do everything on time, I work in the morning and in the evening, and on weekends, and weekdays – almost constantly. And in addition to working in the Grand Chamber, there is also a Council of Judges, which also requires a lot of time and serious attention.
By the way, I never thought that the Council of Judges would require so much work, but in fact, it does. And suddenly it turns out that there is no time: weekdays go without saying, but I am at work even on Saturday and Sunday, either as a judge or as a Chairman of the Council.
In fact, I work in such a mode, that my daughter even congratulated me on my birthday on Facebook, because I was attending important events and did not even have the opportunity to talk, and when I came home, it was too late. But the judicial work attracts me, it filled my life for many years and I got used to such a rhythm.”
About the most urgent problems of the judicial system
Each person evaluates the judicial reform through the prism of their own life and experience…
Mr. Oleh, how do you assess the judicial reform as an ordinary citizen and from the position of the Chairman of the Council of Judges?
You know, I have been in this system for more than a quarter of a century, so, given the experience, I am interested in the view from outside of the system, not from the judge’s point of view. It is clear that sometimes people have the impression of a certain corporate interest of judges in the protection of this system. But I do not have the desire to hide something or to ignore the negativity. On the contrary, I would like to see what any person who comes to the court sees, to know how the court is evaluated by ordinary people.
Therefore, I use my right to visit any court anytime whenever I have such an opportunity. And when I go to some court, I do not hurry to inform them. I visited Pechersk District Court of Kyiv without any warning. Also, I came to Holosiivo District Court – it was interesting for me to see how a simple person who comes to court with his problems is perceived by them as a public institution. Can a person perceive this court as something positive and created for the good and for the protection of his rights? And I saw a lot of problems in the judicial system by looking at it from this angle.
What do you mean?
First of all, the lack of personnel in the judicial system. As a result of the reform, a part of the judges resigned from their positions because more stringent requirements were imposed on them – both for property and behavior. And this is quite a large part, more than 3 thousand judges left their posts, and now there are just a bit over 5,100 judges in the judicial system, although there were almost 9 thousand judges at the beginning of the reform.
How many judges are needed to, so to say, kill two birds with one stone, that is, that there are not too many of them, and the cases are dealt on time?
I think that the optimal number is somewhere in the range of 9 thousand. Though nowadays, with the present amount of judges, they try to work on the cases that are in process. But, for example, the Supreme Court has 113 judges and more than 100 thousand cases. This is an exorbitant workload for the court of the last instance, which should not only read every word but verify everything to the last letter, not only in legal terms but also lexical, historical and the like. If someone thinks that it is easier to work in courts of the first instance or in courts of appeal, he is mistaken. After all, if a judge has to consider two thousand cases per year, we understand that this is up to a dozen cases per day. And it is not easy to sign 10 cases, to listen to everyone, to clarify the law, and to treat everyone with a polite and balanced attitude in one day. If the judges have such a workload for one, two or three days is one thing, but if it lasts for years, it is extremely difficult.
In addition to the lack of personnel, another problem in the judicial system is technical support, and the third one is the perfection of the procedural law. When they are solved, it should lead in a complex to courts being different, quieter, because the present workload when it is difficult to understand, whether it is day or night outside, the working day or day off, doesn’t add health to anybody. And this state of stress does not contribute to justice – balanced to the smallest detail, as it should be. After all the system needs to be unloaded.
And how is it settled?
There are a lot of problems, but over the past year, 13 courtrooms have been repaired and brought to the normal state. This is not much, but still, something has been done, 400 units of computer equipment have been purchased. We are now moving towards the introduction of electronic justice – and the halls are equipped with the appropriate equipment. The furniture was purchased for all the courtrooms – in some areas they remained since imperial times. These are not easy steps because it takes a lot of money. For the state, especially in war, it is not easy. And all the needs of the judiciary cannot be met at once, but the work is being done.
How have the courts and judges changed during this time from the point of view of the Chairman of the Council of Judges? One of the most important things is that procedural rules have changed significantly. New procedural codes were adopted, which significantly changed the procedure for cassation review of cases and identified cases of abuse of procedural rights and how to fight these abuses. Such mechanisms as an exemplary case, written proceedings, pre-trial settlement of the dispute were also approved. Now the courts consider more than 4 million cases per year, and these are the things that will eventually significantly reduce their number.
It is clear that this is a lot and it is unlikely that pre-trial consideration of the dispute will greatly help the situation. What can be done?
If we talk about changing the situation in the system itself, we can go two ways: either to constantly increase the number of judges, because the number of appeals is growing together with the legal consciousness of citizens or to change the procedures that would allow considering cases faster.
About money and judges’ workload
Mr. Oleh, is there enough money that the state allocates for the judicial system, for all its needs, especially when it comes to repairs, purchase of equipment, etc.? And how do these amounts relate to those received by the courts in European countries?
The judicial system is financed by the state budget, but there are certain legal norms that oblige the party to pay the court fee when applying to the court. And part of the costs of the judicial system is covered by this court fee: the structure of the state budget is built in such a way that these funds, which come from the payment of the court fee, partly cover the costs of the judicial system. That is, the judicial system earns a significant part of the funds itself at the expense of a large number of cases under consideration.
And the money goes for sure for the needs of the judicial system, or just like the toll that our roads have never seen?
For sure. These are separate components of income and expenses, they are accumulated separately and go to the judicial system separately. Of course, these funds are not enough. As for the European countries, it is very difficult to compare, because their courts have been provided with normal premises for the last two hundred years. I have been to different courthouses in different countries and I can say that not all courts in Europe have luxurious premises, there is a very small amount of such palaces. Most of the premises are simple, they are equipped with simple furniture. The premises that are built now meet all modern requirements and needs for lighting, technical equipment, spaces for citizens.
Last year in November I was in Canada, in the district court. It is located on the 5th floor of the home and office building. There are entrances to this house from the street, from the subway, and from the store. When I got there, a tired homeless man was resting on a bench in this court. The equipment of the court was quite simple. I met five judges, one of them was entirely without a mantle, the remaining four wore different ones. We asked why – it is unclear where which judge is. And they said: it’s our tradition, our order, the way we live…
So, they do not hang up on the problems of unification…
They don’t hang up on anything, as I understood. On the other hand, we were in the Supreme Court of Canada, this building is historic, it was built a century and a half ago. It is very beautiful, it is fundamental, but the judges consider up to a hundred cases a year there, and our judges have a hundred thousand of them. Therefore, it all depends on how and what to compare. If we judge by the workload, then we have perhaps one of the largest ones in the world. At least in the Supreme Court.
Is it different in the first instance?
It is the same in the first instance. When I was just starting to work, there was an obvious desire of the legislator – to provide access to the court to all. If a conflict arises, it should be considered by a court. Even in case of violations of traffic rules, which were previously not considered by courts. Now the judges are also considering cases related to the control of the pre-trial investigation. Here such a continuous control is performed by an examining magistrate: he authorizes the search, seizure, arrest, so all procedural steps. But the fact that the judge gives permission to carry out the forensic examination for the dead persons is a problem. The validity of such a step of the legislator is questionable because in this case, the examination is mandatory.
About unnecessary areas of work
Were judges turned into funeral homes?
Yes, and that’s not right at all. And there is no such need because the law says: a forensic examination is appointed to establish the degree and severity of injuries and causes of death. Notice, it is appointed without the will of the judge, without the will of the investigation prosecutor. But in other norms, the law says that the decision of the investigating judge is necessary for this purpose. And investigative judges, with which I constantly communicate, say: if there are 2 days off, then on the third day it already turns out that the person lies in a morgue for 4-5 days, and relatives wait for the judge to give permission to carry out examination, to be able to do a funeral.
Not only does it burden the court, but such nonsense as a whole also is not necessary for anyone. Tell me, who needs it? People? No. Does it cause dissatisfaction with the court? It does. Not only with the court. But also, in general with the system and state mechanisms. Such things should not happen, so the Council of judges is thinking how to get out of a difficult situation, how to deprive judges of the unnecessary judicial workload in such cases so that they can spend the time to solve really complex legal problems. We are preparing our proposals to change the law. But it shouldn’t be this way.
When can we expect the changes?
Depends on the will of the legislator. We have already prepared a draft law. By the way, we are constantly preparing them, and on these issues as well. I hope that we will submit it to the Parliament after the holidays and will ask for their consideration.
About open declarations and crimes
Judicial reform riveted the attention of society to the judges, especially their declarations. And now it is stated that open declarations of the judges are a source of danger for them because they disclose information which, even without addresses, is a discovery for thieves who specialize in robbing houses. How to protect judges?
There are several aspects to understand this problem. For example, electronic declarations are fully open, except for confidential information, and they can be viewed by anyone and at any time, and even for any purpose. While abroad it is somewhat different. They release collections in which they publish the declarations. If you want information, you can come to the library and get the collection. Or make a request to the court, and they will send you a collection.
So, on the one hand, they are open, and on the other, to get information, you should take certain steps?
Yes, you need to identify yourself, show what you want to see. You have the right to see it, but you have to say that you saw it. Probably, there is some logic to that, and the other day the judges of the Supreme Court were interested in what to do with it. For many people, the purpose of such uncontrolled openness is not clear. Whether it promotes the fight against corruption or opposes her. It is doubtful, judges say because there are very few court cases on the basis of such declarations. And there are problems in this area.
Rather with openness. When the judge of the Supreme Court, doctor of science, author of many publications, says to me: I look up my name on the Internet – and the first thing that appears is not my publications or court decisions, but declarations. I used to treat it philosophically: well, the declarations are open, so what? But when they started robbing members of the High Qualifications Commission of Judges, judges of the Supreme Court, I see that this is a serious problem.
Are there a lot of such cases?
More than ten. Besides, there were cases when both the judges of the first instance and of courts of appeal were attacked.
What do they take?
I don’t know what they’re taking, perhaps, cash or jewelry. But worst of all, people get hurt. I think the issue is also that you show income, and not only once a year, but, for example, you go on vacation, they give you money, you have to show this money in the declaration within 10 days. You show – and a criminal sees that you have some admission. And that’s it, they can come. You can, of course, hide it somewhere, but there is still a danger that they can attack you. Therefore, it seems to me that the approach to this issue needs to be reconsidered.
A dozen people work in National Agency for Prevention of Corruption, although are they physically able not even to check, but at least to view 150 thousand declarations? Perhaps not. And what is the point when intentions are not supported by real mechanisms for verification? On the other hand, it is necessary to report, but the one who wants to get this information must identify himself. Well, let them look at the declarations, but there should be at least such a small precaution because the judges are worried primarily for safety. They need to work in peace.
About the communication between judges on Facebook
Mr. Oleh, how do you feel about the activity of judges in social networks? Should they be friends on Facebook with prosecutors and attorneys?
To be or not to be on Facebook is a personal question for everyone. It is important for me to be there for several reasons. First, it is the easiest way to communicate with judges: they write to me all the time when they can. Because there are constantly some meetings: either I’m in the meeting, or they are, and there are a lot of unresolved cases.
So, it is your working tool and a means of communication?
Working tool. Exactly. That’s the first aspect. Second, I am not just the Chairman of the Council of Judges, I really have to listen to every judge. There are retired judges who remained in the occupied territory of Donetsk and Luhansk Oblasts. They can only contact me via Facebook, they have no other option. And it is important for me to communicate with them. These are our citizens who for various reasons remained there, they don’t tell anybody that they are judges, but at the same time, they are patriots of Ukraine.
What about friendship in social networks with attorneys and prosecutors? Is that acceptable for judges?
I communicate with prosecutors and attorneys, of course. The council, and it was my initiative, made the decision to create joint working bodies with prosecutors, attorneys, lawyers. We have 30 members of the Council of Judges, 5,100 judges, 45,000 attorneys, about 100,000 people who are members of the Ukrainian Bar Association, and several thousand prosecutors. We have signed cooperation agreements with all these structures. This has never happened both in the Soviet Union and in Ukraine, but we have started this work. And they started to develop common ethical rules for all those who call themselves lawyers and come to court.
Did you manage to do a lot?
We did. The document is almost ready to sign, we will complete and publish it within a month and a half. It will be a common code of ethics for all lawyers. Each of us has a code, and we are very harshly responsible for its violation. Violation of the code by an attorney, judge or prosecutor is an even ground for dismissal. But for us not only the fear of this punishment is important, but also the formation of the awareness that the court lawyer – a judge, prosecutor, an attorney – is a special category of professionals who are responsible not only for their work or salary, not only financially but also for their authority, their honor to behave correctly. An attorney cannot, for example, say: give me money, I’ll give it to the judge – and your case will be solved. But it happens. And often. A prosecutor can’t do something like that. And the judge. Everyone should respect each other because the courtroom is like a surgical room: when a person comes, it should be sterile, clean, calm, honest, conscientious. You can’t just cut off something you don’t like. It is impossible to sew something superfluous in – there has to be very intricate filigree. And we – the Council of Judges are trying to do it, so I communicate with attorneys, with prosecutors – with all.
About who should judge war criminals
You used to be a military judge…
During the war, when different situations occur at the front, the issue of creating military courts is very relevant, because civilian judges, apparently, cannot judge those men who live there under other laws than we do here…
On the one hand, the state must ensure that cases are reviewed by a court that is qualified with respect to a certain type of legal relationship, whether civil or military. And the task of these military courts, first of all, is to ensure discipline and law and order in the Armed forces. And in wartime, as we have now, this is very important, because the internal state in the Armed forces directly affects the combat capability. The second issue: it is really not very easy for civilians to assess the legality of human actions in war. For example, it is not allowed to kill a person, but when this is done to prevent military aggression or to distract an enemy attack, to protect other people, it is the direct duty of the military. And he has a lot of such duties. When a soldier is on guard and a combat post is attacked, he is obliged to take measures to prevent this attack. And if necessary, to destroy the attackers. After all, territorial integrity and security of the state and other people depend on it. And if he does not perform this function, he is to blame for the fact that other people will die, that equipment will be damaged or that the enemy will seize the territory of the state.
And it is really important that justice is carried out by those people who have the appropriate knowledge in the military sphere. And it is important that justice is carried out in the conditions in which the military personnel are: whether they are in the territory of demarcation, where the protection of the state border is directly carried out and the like. And the military courts have implemented this function – 75% of the cases were indeed examined on the territory of the location of military units. And these units at that time performed a combat mission in the strategic missile troops, and in the border troops, in the internal troops, and in other military formations. And this is a very important deterrent for keeping the discipline and law and order in the military.
The issue of the creation of such courts was seriously discussed, even a relevant draft bill was created, what conclusion did they come to?
The discussion still goes on. We have changed the Constitution and the law on the judicial system and the status of judges, there is now no norm that would determine the activities of military courts. The debate now revolves around whether military judges should be subject to military command, or whether it should be a separate entity that is part of the judiciary. And now we cannot yet decide which way is better.
But, in my deep conviction, military courts in Ukraine should exist, especially in conditions when armed aggression against our country is carried out. I think that this is an important factor for ensuring the combat capability of the Armed forces and an important condition for bringing justice to those war crimes that are committed on the territory of Ukraine and by the armed forces of other countries. This is very important, and I think that without this structure – without military justice – we will not be able to carry out the task of justice for war criminals.
Here it is also important for our men who protect the country not to be claimed as criminals by civil judges…
It’s not that the judges, being civilians, sentence the military. Let’s consider the territory close to the combat zone. A part of judges who honestly and fairly carry out justice in our territory have relatives who are in that territory. In the unmonitored one. The time will come – and it will come for sure when our courts will have to consider cases related to crimes committed in that territory. And because of the fact that some judges have relatives, acquaintances, parents or children who remained and lived there or any property, it will be simply morally difficult to do it. In order to ensure objectivity, we need justice to be administered by judges who have nothing to do with that territory. That’s the first aspect.
Second, there are indeed military specifics, when in order to ensure the rights of soldiers, it is necessary that their actions could be assessed by a person who is familiar with the specifics of the AFU. Of course, civilians can say that you cannot steal or shoot an unarmed man. But the measure of legitimacy is different. When someone tells the civil human that someone out there fled somewhere and was shot, he has one perception. A military man, when he understands how it happens in war, has a different one… Therefore, we need a structure that will address these issues that knows firsthand what war is.
What is the prospect of creating such a court in Ukraine and what should be its structure?
I hope that soon we will have it: all branches of the power understand that the military court is necessary. As for the structure, it should be one or two garrison courts, possibly 5 courts of the first instance, a court of appeal and a cassation instance within the Supreme Court. I think it is quite possible to resolve this issue within a year.
Text by Larysa Vyshynska
Photo by Olena Usenko