Dovydas Vitkauskas: Ukraine is Setting a New Standard

A complex and multi-stage process of selecting judges for the Supreme Court of Ukraine is now underway. The selection process has been undertaken by Ukraine’s High Qualification Commission of Judges (HQCJ) under the auspices and with the participation of public sector and international donors.

The “Support to Justice Sector Reforms in Ukraine” project is an initiative financed by the European Union. We spoke with one of the project’s experts, team leader Dovydas Vitkauskas, about the project’s contribution to selecting judges for the Supreme Court of Ukraine, its other activities, and Ukraine’s justice system in general.

What is the project’s role in the process of selecting judges for the Supreme Court of Ukraine?

Dovydas Vitkauskas

We have been helping the HQCJ develop selection criteria, tests and practical tasks. The project also fully funded all procedures connected to the psychological testing of the candidates. We thoroughly checked their social and psychological characteristics, including their values, ability to work as part of a team, etc. This is the most comprehensive testing of candidates for government positions ever completed in Ukraine.

It is very important to conduct such psychological testing and it is equally important to ensure that its results are well understood, correctly interpreted, and taken into consideration during the final assessment of the candidates.

This is why we’ve been working with the HQCJ on a full-time basis, teaching them how to interpret those results correctly. In other words, we not only helped them to conduct the testing, but also to accurately apply the results.

The judge selection competition for the Supreme Court of Ukraine is a unique process even by EU standards. Ukraine is one of the first countries to apply a system of technocracy in its judicial system, in which not only the candidates’ legal knowledge, but also their social competence and psychological abilities, are assessed in a transparent selection process.

In doing so, Ukraine is setting a new standard to be followed by other countries, including developed democracies.

For the time being, more frequently than not, the selection of candidates for supreme judicial authorities is a political and non-transparent process. The selection is done behind closed doors, without open public discussion. In Ukraine, before the Commission finalises its choices, it leads an open discussion about the skills and abilities of each candidate. In other words, the bar of transparency is set very high from the start.

Are you satisfied with your cooperation with your Ukrainian partners?

Yes. In general, it would be hard to criticise the HQCJ for any of its actions. It has set a higher standard than other European countries. However, the competition still needs to be effectively concluded.

Despite the unique selection formula, you may often hear the project being criticised for its final decisions.

There still has not been a final decision on any of the candidates, which is why it’s too early to speak about persons and names. However, you can already see the quality of the process.

How do elections to the Supreme Court of Lithuania work?

In Lithuania, the main round of selecting candidates is a political discussion between different government bodies. The president of the country nominates a candidate and the Lithuanian parliament also takes part in the process. The suitability of the candidates is discussed in the media and in public forums. However, there is no candidate “short-list” stage as there is in Ukraine. Additionally, because the judges of the Supreme Court of Lithuania are replaced one at a time, there is never a complete overhaul of the Court.

Naturally, in EU countries, the level of trust in state institutions as a whole, and in judicial bodies in particular, is much higher than in Ukraine. The public doesn’t always demand such a high level of transparency. At the same time, a more transparent process could still be beneficial for the EU. 07.jpg

It is true that the level of trust in the judicial system in Ukraine is very low, even compared to the relatively low level of trust in the government in general.

According to polls conducted in Ukraine, only 10-15% of the population trusts in the judicial system. In Lithuania, this number is close to 40%; a significant difference. Denmark and the Netherlands are leaders when it comes to trust in the judicial system. In these countries 70% of people express trust in the courts.

Even in a well-developed society, it’s normal for there to be a certain level of distrust in authorities. However, in the case of Ukraine, the level of trust needs to be improved, at least to 20-30%, over the next several years.

The Supreme Court judges selection process is unique, but this is only a first step in the direction of increasing the level of trust in the judiciary. It will take a complex process to improve its public perception, including ensuring high-quality system management and procedural law, and improving the legal education of society.

What are the project’s other activities in the justice realm?

One of our tasks is to help the Supreme Council of Justice  become a leader in the somewhat complicated and cumbersome current system of judicial administration, and to set goals and check their achievement using established evaluation methods, both at the system-level and at the level of individual judges.

The HQCJ’s new approaches for selecting Supreme Court judges will actually also be used for the assessment of acting judges. To make this possible, the Supreme Council of Justice should set  standards for the quality and efficiency of judicial bodies, and establish a system for controlling both courts and judges. Our task has been to help develop these standards. Our cooperation with the Supreme Council of Justice is as important as our work with the HQCJ. The HQCJ will select the right people, and the Supreme Council of Justice must create the system control mechanisms. For the time being, however, Ukraine’s judicial system is still lacking appropriate management and administration.

The project has also helped to introduce so-called “effective budgeting.” The budget of any state institution depends on the results it delivers to society. In the case of judicial bodies, these results include a fair judiciary, quality management, and more affordable services.

Another important task is the improvement of procedural law, which will help create better working conditions for judges and guarantee citizens’ rights to an adversarial procedure.

We also work a lot with the Ministry of Justice. Among other things, we are doing our best to transform it into a modern ministry focused on elaborating policy and delegating service-provision to others, while effectively regulating the whole process.

Among other things, we are helping the Ministry of Justice to reform the system of judgement execution. This is currently one of the main problems facing the justice system in Ukraine.

Court decisions are often not enforced in a timely manner, or not enforced at all. The solution to this challenge is to privatise the judgement execution system. This is also a trend in EU countries at present because it is the cheapest and most effective solution for the end consumer. At this time, 85 licensed execution performers have been prepared in Ukraine. We do hope that this system will soon become a real success story. Of course, we’ll need time to set those bodies engaged in the execution of judgements on their feet as corporations, to create systems of self-governance and rules of ethical behaviour, and to ensure the Ministry of Justice has effective mechanisms of control.

Another set of project activities is focused on electronic registers. There are many problems and risks in this area that must be solved. Only after these processes are completed will we be able to talk about electronic government in Ukraine.

Finally, another task we need to take on in collaboration with the Ministry of Justice is the reform of the probation system, which provides an alternative to imprisonment.

Ukraine must change its approach to balancing crime prevention, rehabilitation of offenders, and effective use of taxpayers’ money. Keeping all perpetrators of crimes in prisons is not only costly for society, it is also a dangerous practice as prisons tend to provide the opportunity for people to expand on their criminal skills. It is important to make sentencing decisions based on statistics, social sciences, and economics, and not on emotions.

You have told us about many interesting plans and processes. However, we know from experience that there is often a lack of political will tо implement decisions in Ukraine. That is especially true when it comes to the judicial system.

There is always a temptation for government to use judicial power for the achievement of personal objectives; this is true for all countries. Nevertheless, in developed democracies there are systems of checks and balances in place to prevent this. Authority must be divided in such a way that no one has absolute power in any area.

The aim of our project at a conceptual level is to create a system that would be able to protect itself from outside political influence. It calls for consistent effort not only in the field of justice, but also in other fields. The judiciary and justice system must protect their independence through better management and self-governance. Both system-level independence and the independence of individual judges are important.

A new EU program called “Justice” is about to launch. Will it also be aimed at strengthening the justice system?

”Justice” will begin around the end of 2017, after our project has wrapped up. In a way, the new program will be the continuation of our project, although with different mechanisms and approaches. The emphasis will on aspects to which our project has not paid enough attention for whatever reason. I would say that “Justice” will provide an enhanced level of EU support to Ukraine’s justice sector. Among other things, “Justice” will have a component directed at reform of the police and interior ministry systems: sectors that are closely connected to justice.