EU helps to improve Ukraine’s judicial system

Citizens’ trust in the judiciary, the prosecutor’s office and the police is crucial for building a European state. The Model Courts initiative helps to bring the Ukrainian court closer to the people, which is to introduce a number of innovations in pilot courts throughout Ukraine, following the example of European countries.

“A judge cannot enter a judgment based on expectations of the public or mass media; a judge must enter a judgment based on evidence and in accordance with law”: Anna Adamska-Gallant, key international expert at the EU’s Pravo-Justice project

«Суддя не може виносити рішення, базуючись на очікуваннях громадськості або засобів масової інформації, а має виносити рішення на основі доказів і відповідно до закону» ключовий міжнародний експерт Проекту ЄС "Право-Justice" Анна Адамська-Галлант

Anna Adamska-Gallant is a former judge with almost 17 years of experience in dispensation of criminal justice in courts of all instances. Between February 2013 and June 2018, she worked as an international judge in Kosovo, hearing the most serious cases including war crimes, crimes against humanity, crimes committed by organized groups and corruption crimes.

Why did you choose criminal specialization in your professional activity, which is hard even from psychological point of view? What specific difficulties do you encounter when hearing cases of this category?

The point here is not even the choice of criminal specialization but the availability of vacancies. At the time when I submitted my application, it was the only option available for a criminal judge. That was how I started working, and spent 17 years working in this field.

There are a lot of various difficulties occurring in the work of a judge hearing criminal cases. Every case is individual. One must analyze and assess the entire evidence in accordance with law, and have good communication with the parties. All that because criminal cases often involve human tragedies. As a rule, a court judgment has a huge impact on the future life of not only the accused but also victims of crime and their relatives. A judge must make decisions based on evidence, and that could be very hard. In many instances, it is also especially hard because of the pressure on court from media and the public. Very often, they tend to think that they already know who’s guilty, and the judge should only confirm their expectations. A judge cannot enter a judgment based on expectations of the public or mass media; a judge must enter a judgment based on evidence and in accordance with law.

Have there been any instances during all years of your judicial career that left an ambiguous impression, where it was actually very hard to make a decision? What cases, if any, were the most memorable or left the biggest impression?

I worked on many difficult criminal cases. Especially during the six years prior to June 2018, when I worked as an international judge in Kosovo. I handled the most serious cases of war crimes, organized crime, corruption at the highest levels of power. I recall the case of one man, allegedly a drug lord from the so-called Barak Obama’s list of the most dangerous drug traffickers. He was accused of not only illegal drug trade but also of ordering to kill one of the Bosnian War heroes. There were more than 100 witnesses in this case. We conferred with judges from other ex-Yugoslav states which did not recognize Kosovo. It made our cooperation very difficult, especially in the beginning of trial. I felt huge pressure. The public and mass media believed that the accused is guilty and that the court must only confirm that belief of theirs. There was some political angle to that, because an election campaign was underway. But after hearing every next witness, my doubts that the man is guilty were only growing. The prosecutor was also unable to prove the man’s guilt to court. Therefore, after two years of trial the court acquitted the accused.

Transparency of the judicial branch of power and open communication with the public are very important. How would you assess the level of communication of the judiciary in Ukraine? Is it necessary to add some areas perhaps, or, on the contrary, change something?

In Ukraine, communication of the judicial branch of power is good. Every court and every judicial authority has an own website and a page in social media. They are very informative. The point here is how to filter it. At the same time, our experts noted that those resources contain a lot of information from jurists for jurists. The society, however, needs other language of communication, more comprehensible for the public at large. Another positive point is that communications in Ukrainian courts are handled by speaker judges, and that many initiatives are implemented to inform the public about the judicial system, for example, Open Door Days held for students and schoolchildren. I have to say that you need to publish and disseminate information that would help people understand what the court is, what role it plays in protecting human rights, and why independence of the judicial branch of power is important for everyone. You also must inform people about how to behave during a court hearing and what to do if you are summoned as a witness. The public is not very interested in internal meetings and conferences of judicial bodies. Communication is, first of all, about the contact with the participants of a judicial proceeding. The court must convey its decision in a comprehensible form.

Western partners have this practice: after a judgment is formally entered, it is explained in layman’s language. In other words, every judge must tell people, in a language they can comprehend, why this particular decision was made and what consequences it will entail. I have to say that this is an important point, because the parties often do not appeal the court judgment afterwards. It also helps a lot in our work and expedites the hearing.

In Poland, for example, the Constitutional Court had a practice like this. In particular, when a ruling was laid down on 20 pages, which was definitely hard for an ordinary citizen to digest. Then, the speaker judge and the presiding judge would meet with the media and the public and explain the meaning and consequences of the ruling.

We know that there are certain specifics in hearing and announcing court judgments in Poland. Can you tell us about them?

The processes and approaches in our countries are quite similar. A significant difference is that judges in our country announce the judgment while sitting, and in Ukraine while standing. There is also no video recording of court sessions in Poland. In my opinion, video recording must be used in certain cases. For example, in order not to summon a child to court twice, their testimony could be recorded on video. But in Ukraine, there is a demand for transparency of judicial proceedings, and therefore, they are recorded on video. Another difference is that judges in Poland write a detailed substantiation of the judgment only when requested by a party. In Ukraine, this is mandatory and done in every case.

The Model Courts project – what are its main principles?

The Model Courts project is intended to improve performance of courts, communications with the public, comfort and safety in court. Improvements in these areas would have positive effect on public trust in the judicial system. European practice proves that the trust of a citizen in the judicial system, prosecution authorities and the police is one of the keys to development of European states.

The concept of this project comprises the following major ideas:

– services for those coming to court

– safety in court

– organization of court’s work procedures

International experts participating in this project have already presented a draft manual containing recommendations that could be implemented by Ukrainian courts to make them more responsive to the society’s needs. These recommendations include: better informing, proper layout, separate waiting rooms for witnesses from vulnerable categories of population, rules of addressing participants of the proceeding, dress code and corporate ethics principles, aspects of the court employees’ communication among themselves and with the parties to the case.

An important feature of this project is its orientation toward vulnerable categories of population. They include women and children victimized by domestic or sexual violence, victims of workplace violence, human trafficking, etc. The main purpose of this project is to bring courts closer to people and increase public trust in the judicial branch of power.

Speaking about the hearing of cases involving vulnerable categories of population, what specifics does it have and what needs to be improved in view of international experience?

An important point here is training in this area. In particular, many European countries have trainings for judges and court employees in working with persons with special needs. They help find an approach to these people at every stage of hearing. It is especially difficult for these persons to go through judicial proceedings, especially in the form in which they exist today.

I have to say that technical aspects are also important. There are domestic violence cases, where the contact between the victim and abuser must be limited. Let me tell you that most conflict situations occur in the court building’s hallway when waiting for the beginning of hearing. It concerns safety. Therefore, their separation must be ensured.

What is your take on trial jury in the form in which it exists in Ukraine? Is it the right format, in which a jury could be efficient?

The biggest problem is the absence of motivation in the form of proper remuneration for people who decided to serve as jurors. Of course, the participation of jurors in dispensation of justice affects the trust in the judiciary. For the public understands that jurors can also influence the hearing of important cases. Integrity criteria are also very important when selecting jurors.

In Poland, the lists of jurors are approved by city council, and the candidates for jurors must have experience and enjoy respect among people.

Jurors participate in dispensation of justice together with judges. Speaking about the appeal and change or reversal of their verdicts, this is a commonplace practice in Europe. The United States, for example, have a different model: there, a court of higher instance cannot overrule the jury’s “guilty” or “not guilty” verdict. It can only change the punishment or remand the case if procedural violations were discovered. In Ukraine, the format of jury is close to European practice. There, jurors work together with judges. In the United States, the judge does not make decision but only makes sure that all procedural guarantees are observed. I heard that there are discussions in your country concerning the possibility of adopting this model. It needs to be thoroughly weighted, because you have a different mentality and different traditions.

As for the experience in working with jurors, I have only positive memories, because I was a quite young judge and the jurors were experienced people. So, I felt their support.

There is also another important point: in Poland, for example, jurors dispense justice while sitting next to judges and wearing a judicial robe. In other words, a person cannot see the difference from professional judges at the first glance. In Ukraine, I saw a different situation, when jurors sit at a distance from judges in chairs, wearing ordinary clothes. It creates a different atmosphere. They don’t look part of the court.

How, in your opinion, can the balance between effective prevention of corruption and independence of judges be maintained?

Combating corruption is a difficult process for any country. In Ukraine, there are many methods of fighting this phenomenon. Declaration of judge’s assets is very important. Verification of the legality of ownership also plays an important role. The authorities responsible for checking legality of the origin of assets must be ultra-critical, and their methods stricter. Take, as an example, the work of the Public Council of International Experts when selecting judges for the Anticorruption Court. This is also a responsibility of the public and journalists, because they can shed the brightest light on questionable income or property. Educational work is also needed in this context. People must understand that corruption is a crime and that it undermines the country’s status in general. Raising a generation who would not tolerate such a thing as corruption takes time. Perhaps it is also a question of mentality. In Scandinavian countries, for example, a civil servant cannot use a service credit card for their private needs. There was a situation with one of the ministers, who paid for napkins with this card and then gave the money back. Nevertheless, he was still dismissed, because he broke the law. There were a lot of publications in mass media in this regard. I am sure that in Poland or Ukraine, nobody would have cared much about something like that.

You worked as an international judge in Kosovo, hearing the most serious cases. Dispensation of justice in the occupied territory of Ukraine obviously has its specifics and difficulties. What advice could you give as regards legislative changes concerning nuances of dispensation of justice, and overall, considering your expedience?

What I would definitely advise is to prepare judges and prosecutors for hearing of cases concerning war crimes. They must know how to read evidence, question witnesses and make decisions correctly. In particular, judges must learn how to interpret correctly the international law concerning war crimes.

Do you consider judicial reform in Ukraine effective? What upsides and downsides do you see?

I see a progress in judicial reform. There are now more judges with modern view of the hearing procedure, and judges ready to borrow from European experience and standards. In the opinion of many Ukrainian jurists, performance of the Supreme Court and its rulings are one of the examples of a successful judicial reform. Many positive changes also occurred in the work of the National School of Judges. They use many new training methods aimed to develop competencies and professional skills in judges.

As for the laws concerning the judicial system, their quality is good; in particular, they provide a lot of guarantees of the independence of judges. What I want to see now is how these laws will be put into practice.

Also, one should not forget about mentality, but it takes time to change it.

By Zenovia Sukhoverska 

Source: Ukrainian Law