“New blood” is needed, but it should be mixed with experience – EU expert of judicial reform in Ukraine

Guest of Your Freedom program: Dovydas Vitkauskas, Manager of EU Project Pravo-Justice

Vitalii Portnykov: The judicial reform in Ukraine has been lasting for over two years already. It is not a secret that the Ukrainian judicial system originates from Soviet judicial system. The problem is that there was no actual reform – the Soviet judges somehow got used to dependence. This profession took into account a party’s will, an instruction from the above. Later, instructions from the above changed into envelopes with money or to some oligarchic or corporate ties. Generally speaking, no much changed for people who were involved in the administration of justice in the Soviet times. When new people came, they fell into the same system – post-Soviet, but not European, not civilized.

Yesterday, I heard a wonderful phrase on the air; one of the spectators said: let’s better students judge. One of the participants of the program responded: yes, good people without experience are better than all those corrupt, lying people integrated into the system. This is not just a replica. This is public opinion. This is an opinion of Ukraine!

Dovydas Vitkauskas: Justice itself likes stability, predictability, clarity. If we try to achieve exactly this, it is impossible to achieve without experience. Due to the re-launch of the judicial power and the reform of the justice sector, an idea that we are helping the Ukrainian authorities to implement is, of course, not to forget that people shall be changed, “new blood” is needed, but it must be mixed with experience.

Dovydas Vitkauskas: “Independence of judicial power does not imply an absolute lack of control”

Judicial power is special; it is a key element of justice. It is very important that it be independent. Independence of judicial power does not imply absolute lack of control. Independence means that the judicial power is managed independently, but managed. During the last 25 years, in Ukraine, the word “independence” concealed lack of responsibility, accountability to society. Independence does not mean arbitrariness. It is certain control of judicial power over itself through judicial self-government authorities. To achieve the golden mean here is a key task for all the reforms. To maintain independence, on the one hand, and to create a system of accountability, on the other hand, so that judges be dependent on the budget, public confidence and common sense.

Dovydas Vitkauskas, Law-Justice EC Project Manager

A significant part of civil society suggests that no reform has taken place, all this is actually an imitation of changes. Do you agree with such assessment?

Dovydas Vitkauskas: “Even if there are half-rotten apples, the judicial system not only can, but also should operate”

– In managerial approaches and in the reforms there is always a double discussion: who is more important – a person or a system? Or if there is at least one rotten apple in the system, will the system be spoiled, or, conversely, even with such half-rotten apples the system can be improved and made more effective? In Ukraine, over the last 4 years after the Maidan, a special emphasis was placed on the human factor, in particular on the integrity component. This is normal.

On the other hand, our task is to help both civil society and the Ukrainian authorities to understand that the system is a complex relationship between individuals – even in the presence of half-rotten apples; it not only can, but also should operate. If the system is well managed, it can adjust these individuals and eventually improve their behavior.

Dovydas Vitkauskas: “Some cases are unreasonably postponed and delayed; on the other hand, the courts sometimes work like spaceships”

We have a lot of macro level statistics showing that, for example, in some categories of cases and some areas of litigation the Ukrainian courts are very fast. The European standards require case examination term to be reasonable. But there are very complex cases, which require more time to examine. Justice is the ultimate goal, and speed is just one of the components. To be able to divide and give priority to cases, which are complex, on the other hand, to provide opportunities to express opinion, to scrutinize the matter thoroughly is the essence of an effective judicial power. Ukrainian authorities are still searching for this golden mean. Some cases are unreasonably postponed and delayed; on the other hand, the courts sometimes work like spaceships.

– For a long time, very high public attention has been drawn to the procedure for the establishment of the Supreme Anticorruption Court. This was a guarantee of Ukraine’s receipt of the IMF tranche. The establishment of an anticorruption court has always been explained by the fact that in the fight against corruption, the ordinary judicial system cannot be effective. Are such hopes for a specialized court instance simultaneously a sentence of existing judicial system if it is not able to cope with ordinary cases?

– Reloading of the judicial power should apply to the whole judicial branch. An anticorruption court should only be a part of this element. On the other hand, the anticorruption court is not a kind of a “bell” for cleaner and more morale people. It is simply a separate structure that will help more effectively, more competently solve criminal cases with a corruption component, so that these cases move faster, fairly and with respect to rights of the parties.

In parallel, other specialized courts are established, which, in our opinion, based on the European practice, will lead to an equally important result for the legal system. For example, the court for protection of intellectual property rights. Ukraine is a country which actively develops the IT sector. A lot of questions and disputes arise in this area.

– In your opinion, why there is such a big problem in the post-socialist world with the judicial system? Almost everything is being reformed, however always bumps into the judicial system. Or it cannot be reformed normally, and remains very similar to that of the socialist world, or politicians do everything to bring it back to such a condition, even if the reform succeeds.

Dovydas Vitkauskas: “The peak of confidence that can be achieved in the society to the courts – between 70% and 75%. In Ukraine, this figure ranges between 5% and 10%.”

– We have witnessed over the past several years that an attempt to control judicial power exists everywhere, including in the Western European countries and in the United States of America. The difference between the democracies that have been well-established and young democracies is that, despite such attempts of politicians to cross the border, there is the accountability of the judicial power; in the developed democracies there are rules, approaches and institutions that have been established. Post-communist countries are still vulnerable. The examples include Poland, Hungary.

There is a positive trajectory requiring elaboration. The peak of confidence that can be achieved in the society to the courts is between 70% and 75%. These are the figures of general public confidence, including those who have never been and do not even know how the courts operate. These are figures achieved by Scandinavian countries and the Netherlands. In Lithuania, this figure makes up 50%. In Ukraine, this figure depends on various factors and ranges between 5% and 10%.

Dovydas Vitkauskas: “Average European standard – salary of a judge is twice higher than average salary in the country”

Judges should be paid, but not too much. Average European standard (based on the Council of Europe) – salary of a judge is twice higher than average salary in the country. Salary of a judge of the supreme court in the country (a court of cassation or higher) is 4 times higher than average salary in the country. Today’s salaries of judges of the Supreme Court of Ukraine are much higher than average salary in Ukraine. Probably 20 times higher! Realizing the exceptional conditions and the risk of corruption in the country, I would not say that such a policy is not reasonable. On the other hand, our colleagues and friends from the Supreme Court of Ukraine should now very carefully look at how they work. Because they probably did not deserve such high salaries from the point of view of the majority in the society.

What is amazing for us in Ukraine? Everyone understands the causal link between civil position and the opportunity to earn in a “shadow” way.

In Ukraine, only 5% of cases in a civil process are currently fulfilled within legally prescribed term. We must conclude: what judges do is only paper, formal work, and there is no practical, actual result for people. It is possible to change the situation – to privatize the enforcement service. In spite of all allegedly attempts and everyone’s consent, including the Ministry of Justice, the reform does not move as fast as we would like. In Ukraine, there are currently 130 private enforcement officers and more than 5 000 public enforcement services.

The interview was originally published on Radio Liberty