Ukrainian courts are far from perfect, but the criticism they face is more than they deserve.
That unpopular opinion belongs to Ukrainian lawyer Alexey Kot, who has spent three years as a member of the Judicial Reform Council of Ukraine, an advisory body for President Petro Poroshenko.
He and 41 top lawyers, lawmakers and judges on the council are ready with proposals for the ongoing judicial reform aimed at rooting out corruption and rebooting the courts with new and vetted judges.
Kot is satisfied with the progress, but says it is too early to judge. “We won’t be able to judge the reform until the new Supreme Court starts working,” he says.
The Kyiv Post met with Kot on Sept. 19, a few days before the results of the competition of judges to the New Supreme Court were officially released.
However, the names of the top 120 candidates were already known.
The result is a success, according to Kot, with 120 “interesting candidates.”
That’s not the way that civil society and Ukraine’s Western partners see it. The U.S. Embassy in Ukraine said that concerns remain about the integrity of some of the selected judges. Some 25 percent of the candidates were rejected by the Public Integrity Council, a civil society body that vetted judges, because they had made controversial rulings or because of evidence of corruption.
Moreover, it’s still not clear when the new Supreme Court will be formed. Just as the interview with Kot was taking place, parliament was considering the 3,000 amendments to the Judicial Code needed for the new Supreme Court to function – and then it failed to approve them.
“It is a long-term process that needs a lot of changes in the legislation. But our society is tired of waiting,” Kot says.
Judges discredited
The profession is so discredited by controversial rulings and perceptions of corruption and political subservience that it discourages new people from entering the field, according to Kot.
And Ukrainian judges do indeed have a bad reputation.
The courts are often sympathetic, to put it mildly, to top officials who are prosecuted for corruption, such as ex-State Fiscal Service director Roman Nasirov or ex-lawmaker Mykola Martynenko. Such cases are turned down by judges, fall apart in court or are stalled simply because a judge fails to turn up for work.
The profession took the biggest hit during the EuroMaidan Revolution, before the overthrow of President Viktor Yanukovych on Feb. 22, 2014, when judges convicted dozens of protesters on flimsy evidence.
The judicial reform started after the EuroMaidan Revolution is supposed to bring in a new generation of judges, push out the corrupt ones and simultaneously restructure the system.
Kot praised the country’s switching from a four-stage court system into a three-stage one. Before 2016, Ukraine had first instance courts, courts of appeal, high special courts and the Supreme Court. Today, there are only local courts, courts of appeal and the Supreme Court.
The revamping of the Supreme Court has been in the spotlight in the past several months, especially when the Public Integrity Council, 25 percent of the 120 winners had failed a vetting process but were still selected anyway.
When asked about it, Kot says that “one should look at the glass as being half-full, not half-empty.”
“Yes, we indeed have a lot of candidates who already worked in various Ukrainian courts. But we also have a lot of legal academics and lawyers, who, if approved, will play an important part in the new Supreme Court,” Kot says.
Prosecutor General Yuriy Lutsenko speaks to journalists after reading a notice of suspicion for ex-President Viktor Yanukovych in a treason case on Nov. 28, 2016.
(Volodymyr Petrov)
While 120 candidates were selected, the High Council of Justice can choose to not approve all of them: Just 65 judges are enough for the court to function.
As for civil society’s reaction, Kot thinks that the Public Integrity Council opposed the judges not because they found all of them to be corrupt, but because the activists had a different vision of judicial reform. They didn’t want any judges that already worked in Ukrainian courts at all, he says.
Kot says that at first the idea was for radical judicial reform: fire everybody, raze the entire system and then create a new one out of the ashes.
“But this approach isn’t acceptable for various reasons. So we decided to change it. Instead of firing everybody we guaranteed that there would be a tough competition, a filter for the people who want to become new Supreme Court judges,” Kot says.
Too critical
Kot says that the Ukrainian society and officials “have got used to blaming judges for everything.”
“I’m not trying to protect them. But people forget there are several participants in the trial process: the defender, the prosecutor, and the judge,” says Kot.
He says that sometimes prosecutors are lazy in their preparations for the court and commit procedural violations when gathering evidence.
“And what is a judge supposed to do when he or she understands that the defendant is a criminal, but a professional defender points out the prosecutor’s mistakes during the process? The simplest thing to do is to blame the judge,” Kot says.
He is worried that constant criticism could disrupt the work of the new Supreme Court.
Farce instead
Another factor that discredits today’s justice system is the unprofessionalism of state officials, according to Kot.
Typical manifestations are the emotional yet unfounded public accusations that top officials in the justice and law enforcement system make. For example, Interior Minister Arsen Avakov and Prosecutor General Yuriy Lutsenko are careless in their public statements: They often refer to accused parties as being guilty long before their trial, and make “emotional assessments about defendants’ morals.”
Kot says that officials do this because it wins them admiration from the public. “Otherwise they wouldn’t show off,” Kot says. “People get the leadership that they deserve.”
So it is no wonder that when it comes to court proceedings, unprofessionalism is also rife.
“We see people hiding under blankets, and detectives trying to issue notices of suspicion while the suspect pretends to be unconscious,” Kot says, referring to the arrest of Nasirov, the former head of the State Fiscal Service, in March.
“This farce can hardly be called justice.”
