EU project expert: judicial reform to produce results only in 5 years

Having worked for many years as a judge in Austria, Georg Stawa chaired the European Commission for the Efficiency of Justice of the Council of Europe (CEPEJ) from 2014 to 2018, whose experts study the quality of work of representatives of the judicial system in different countries. In particular, in Ukraine. He is currently the head of the Department of Strategic Planning at the Austrian Ministry of Justice and an international expert of the EU Project “PRAVO-Justice”.

Therefore, we talked about the Ukrainian experience of judicial reform, comparing it with the experience of the European Union countries. In an interview with Censor.net, Georg Stawa told about why he considers Ukrainian judges selection system to be unique, how courts are funded in Ukraine and in Europe, and when one should expect the results of the reform.

 

“The volumes of financing of the Judiciary in Ukraine are lower than the average in Europe”

– Last  year, in October, the European Commission for the Efficiency of Justice of the Council of Europe published the report “European Judicial Systems: Efficiency and Quality of Justice 2018, and in November a report “Selection and Assessment of Judges in Ukraine” was issued, which was also prepared by you, which indicates that you have deeply studied the Ukrainian judicial system. How does the judicial system in Ukraine correlate with those operating in European countries? How can you assess the efficiency and quality of justice in Ukraine?

– As part of its activities, this commission collects data and makes comparative reports on judicial systems in different countries. Of course, the global situation in the Ukrainian system differs, say, from the UK, but if we are talking about some general indicators, for example, the amount of money the state invests in the judiciary, determining of staffing needs, as well as other issues, then the indicators are quite comparable.

In my opinion, it makes sense to compare Ukraine with countries that are currently undergoing reforms, for example, with Poland, with Georgia. In general, in order to conduct a comparative analysis, you can use the CEPEJ website, which provides open access information with open data on all countries.

– Is it worth comparing us with Poland, given that the European Court of Justice ordered the authorities of this country to stop judicial reform?

– Saying that Ukraine and Poland can be compared, I meant actual information, figures and indicators, that is, I did not speak about content, because it is impossible to compare the quality of court decisions, taking into account the indicators contained in the documents of the European Commission for the Efficiency of Justice of the Council of Europe. I mentioned Poland because it is a country that can be compared with Ukraine in the sense that they are similar in territory, these are quite large countries, they have a common history, namely belonging to the communist bloc. But once again, I emphasize: the content of court decisions is not reflected in the data collected by the commission and they are not subject to comparison.

If we turn back to the practice of the European Court of Human Rights, then we will be able to see how good the decisions are in the national courts. That is, to what extent this decision was justified, whether the procedural requirements were met, or whether all the evidence in the case was taken into account. But all this, as I said, is not in the focus of the commission. It assesses the judiciary from the institutional point of view, that is, how its components function. Attention is drawn to whether sufficient funds are allocated to the judiciary or maybe too much and the resources can be optimized somewhere, and so on.

– In your opinion, is the judicial system in Ukraine sufficiently financed?

– The volumes of financing of the judiciary in Ukraine are lower than the average in Europe. Probably, it would be reasonable to compare court costs per capita. In Ukraine, this figure is approximately 5 euros and 15 euro cents per capita, that is, it is the financing of courts. In Europe, the average figure is 34 euros and 33 euro cents.

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– That is, in Ukraine it is 6 times lower…

– Yes. It is also important to pay attention what exactly these funds which are allocated to the judiciary are spent on. Of course, the major part accounts for the salaries of judges, employees of the court apparatus.

– Although the salaries of judges are not so high. At the same time, the number of judges in Ukraine, according to the report published by international experts, is lower than the average in Europe (14 against 21 per 100 000 people). Do you think this impedes the changes in the system itself or it does not affect them?

– The difference is generally small. For example, if we talk about the number of prosecutors who are also part of the judiciary, then the European average number is 11 prosecutors per 100,000 people. In Ukraine, they are twice as many – 23 prosecutors per 100,000 people, but this is quite understandable, because in post-Soviet countries, in particular in Ukraine, prosecutors have performed and continue to perform those functions that generally are unusual to European prosecutors. Therefore, the scope of work of Public Prosecutor’s Office in Ukraine is larger in comparison with Europe. As far as I know, there is now a tendency to transfer functions that are unusual to prosecutors to other bodies, as is the case in European countries. And there is hope that the number of prosecutors may also be reduced in the future.

– Are judges in European countries limited in terms of the length of trial? Because in Ukraine some trials can be conducted for years.

– Of course, in Europe there is such a notion as the length of trial, and this is an integral part of assessing the effectiveness of a judge.

There is such an indicator as the percentage of cases considered – the percentage of the total cases received by the court, and such indicator as the term of consideration of the case. And here it is necessary to make a small lyrical digression, noting that for journalists and society as a whole criminal cases are of particular interest. Moreover, the more high-profile are cases, the more attention to them: there is something that interests people. But in fact, if we compare the weight of criminal cases with the weight of civil and commercial ones, then the latter are much more because, for example, civil jurisdiction includes the consideration of family disputes, the issue of alimony, the establishment of custody of children, divorce. It also includes disputes between private persons regarding non-fulfillment of certain contractual obligations, compensation for damages, etc. Therefore, in terms of ensuring the stability of the country’s economy, it is much more important to consider civil and commercial cases quickly and effectively.

In Ukraine, as well as in other European countries, there are cases when some cases of any jurisdiction can be considered for years. But at the same time in Ukraine, even though many processes that are automated in Europe are not so in your courts, the percentage of cases being considered is 97%. That is, of course, you need to strive for 100% consideration, but the figure of 97% is very good.

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– For what period is this data? And what terms do you mean?

– This is an indicator for 2016, and, accordingly, a term of one year is covered.

– You have been working as a judge and can talk about terms in detail. For example, in Austria, within how many months should the judge should consider a case?

– To answer your question briefly – no, there is no time limit for a judge, but at the same time there is a provision of Article 6 of the European Convention on Human Rights, which provides that the judge must make a decision within a reasonable time, that is, as quickly as possible. Of course, the judge, when he receives a case, cannot predict how long it will take to consider it, especially when it comes to a civil case, where a lot depends on the parties. If the parties, for example, want to invite 20 witnesses and the judge believes that it is in line with their interests, then they will invite all of them. And if they live in other countries and ensuring their presence at court hearings is difficult, then the trial can take a long time.

– Given the requirements of the European Convention on Human Rights, maybe some average indicatives should be developed?

– Typically, such indicative timeframes are developed by the countries for themselves. For example, this was done by Croatia, and now Slovenia works on it. They have also been established in Italy. As a rule, such indicators are determined with the help of judges of the respective country, because doing it as if from the outside, from above is rather difficult, as many nuances need to be taken into account. The time taken to consider a case depends not only on the efficiency of the work of court staff, but also on certain legislative features. For example, if we speak about Italy, then the procedural law there is quite complicated, and simply in the law, in the process, it is written that between, say, Stage A and B, there should pass 3 months, and during this time nothing happens in the process. That is, it is impossible to compare Italy in this sense with other countries with other legislation.

Since there is a tendency in Ukraine to such a phenomenon as management of the judiciary efficiency, it is possible that such developments will also be.

In Austria, for example, there were such large-scale criminal cases, which took nearly 10 years to consider, because prosecutors needed to track cash flows from the Bahamas to Liechtenstein and back, while some countries were not very willing to cooperate. Moreover, because of this, even the ECtHR is flexible enough to the length of the trial, that is, the convention states that the case should be considered in due time, without specifying these terms. So in some cases 6 months is fast, and sometimes when, for example, it is about domestic violence, every hour is important, and decisions should be taken immediately. That is, even one month can be determined as too long.

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“Participation of the PIC is a unique experience not only for Uktaine, the Europeans monitor it”

– When assessing the procedure for selecting judges in Ukraine, you indicated that it was transparent, though very complicated. How can it be improved?

– The complexity and comprehensive nature of the procedure is not always a drawback. Given that in Ukraine, when the reform started, the level of public confidence in the judiciary was close to zero, it was necessary to press this “reboot” button.  Of course, when we talk about the selection of judges, we always imagine an immaculate candidate, almost a saint, who stands one foot on the ground and the other in the skies. But what was done within the framework of this new procedure for the country? Firstly, we have studied the best practices of European countries and brought them to the process of selection and evaluation of judges in Ukraine. First of all, it is about introducing certain objective criteria, such as checking the legal knowledge, theoretical knowledge, verification of practical skills, that is, the ability to draft a court decision. Currently, the procedure also includes psychological testing and interview with the candidate. Secondly, the involvement of civil society is an interesting and extremely important component. This is a unique experience, not only for Ukraine but also for European countries.

The society represented by Public Integrity Council directly participates in the selection. PIC members can directly collect information about the candidate, attend interviews, may ask questions. And accordingly, the candidate is obliged to answer the questions posed, including inconvenient ones, for example, about an undeclared apartment somewhere in Odesa or about the three big cars owned by the candidate’s grandmother. And the candidate himself gives explanations.

– At some point, PIC came out of the assessment procedure. Did you track this situation?

– On the one hand, the HQCJU deals with the assessment or selection procedure as a whole, and members of the commission have to process a large number of judges’ files. At the same time, PIC presents its findings, its information, and the HQCJU is also obliged to process  this information. And, one again, according to the law, civil society in the form of PIC has the right to participate in the selection procedure, but at the same time it is their duty. This is a new experience, both bodies had to work out the mechanisms of interaction between themselves, and this process was not simple.

But I want to emphasize one again: the participation of PIC is a unique experience not only for Ukraine, the Europeans monitor it and understand that such participation of civil society is effective. After all, in European countries where the appointment of judges is dealt with by competent state bodies, quite often situations arise where civil society expresses some doubts and even advances conspiracy theories on the appointment of candidates, but this is done only on the Internet, in closed forums, and does not contribute to the transparency of the judiciary.

While in Ukraine, due to the established procedure, the representatives of civil society raise questions to judges here and now, as at a wedding in the American church. That is, if there is any objection, then speak now or forever hold your peace. And if it turns out that the candidate has a dog that owns five cars, please, he has the opportunity to explain it. Because the candidate is required to provide explanations.

In addition, interviews are broadcasted live, and everyone can watch them.

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– The reform is taking place for a long time. And people complain that this process is too long.

– In fact, the reform is progressing at a fast pace. And, probably, such a pace would not be possible in other European countries, because the conditions are different. But despite the fact that the reform is progressing at a fast pace, one cannot expect the result immediately. According to my belief, it should take five more years before people can evaluate what is happening.

I understand that the Ukrainian society requires results already now, as if breathing down the neck of politicians engaged in the implementation of this reform. This is good, because it forces the country to move forward. A lot of changes are ahead, and in the future, in order to restore public confidence in the judiciary, we will have to make even more efforts, but the overall goal is worth doing everything possible to achieve this.

 

By Tetiana Bodnia

Source – Censor.NET

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