In his more than 20 years in the legal profession, Dovydas Vitkauskas has seen enough to know when it is time to call things by their proper names. The 44-year-old Lithuanian is the head of the European Union’s team advising Ukraine on justice sector reform and he is not pulling any punches.
“Ukraine can be compared to other post-communist countries,” he told the Kyiv Post in an April 26 interview. “It has some similarities in terms of the effects and causes of the problems in the justice sector. For instance the corruption, which is endemic in the institutions; the lack of accountability, the lack of leadership.”
Still, Vitkauskas believes that in spite of the problems, there are solid reasons to believe the country will be able to change.
“We have good conditions in Ukraine, historically and culturally, to reform the country,” he said. “It’s a culture based on individualism as a virtue. In this sort of culture it is a bit easier to promote a liberal democracy.”
But the flip side of that individualism is an inability to build consensus and an overemphasis on short term gain as opposed to longer-term prosperity. That, coupled with great fragmentation when it comes to governance of the judicial system, is causing problems.
“It is very difficult to understand who takes responsibility for the whole system, who fixes the policy goals and what those policy goals are,” he said. “In Ukraine because of the fragmentation, which means different bodies are responsible for different functions, but no one at the end of the day is responsible for the judiciary as a whole.”
Vitkauskas is hopeful that Ukraine’s High Council of Justice can step up to that responsibility and formulate the goals of the system, then work with individual judges and courts to keep them accountable for meeting those goals. He says that is one way to construct the judicial environment to ensure it becomes both independent and accountable. In this respect, Ukraine has work to do.
“It (Ukraine) is working toward that direction and we, alongside other donors, are helping them in that,” he told the Kyiv Post. “In terms of the conceptual approach we have no disagreements. The discussion is not about what needs to be achieved but how.”
A need for new approaches
One answer to the question of how to achieve judicial reform has come in the form of the creation by Ukraine of an entirely new Supreme Court and an open competition to select judges for it. Vitkauskas describes this as a “very, very unusual” step but says it has won the support of the EU and other donors because it makes sense given the situation in Ukraine.
“The degree of effectiveness and efficiency of the justice sector in general is so low and public trust in it is so low that even if it’s a drastic measure it’s probably the most reasonable policy,” he said.
The Lithuanian disagrees with civil society activists who have suggested the process of selecting judges to the Supreme Court lacks transparency and has likely been subject to political meddling. He argues that the decision of who becomes a Supreme Court judge “should be to a certain extent be political” but says that the testing methods being used in Ukraine are complex and objective enough to guard against excessive manipulation.
“Based purely from an expert, comparative, scientific point of view, there is no ground on which I can criticize what the High Qualification Commission of Judges has done so far and I think most of the donors and informed observers would agree with me,” he told the Kyiv Post.
But while a bright future might be ahead, for now Ukraine must tolerate a justice system which often fails to deliver. Such was the case in recent weeks when four former members of the Berkut riot police accused of killing and torturing Euromaidan Revolution protesters in 2014 fled to Russia, after a court ruling that they could be released from police custody.
Vitkauskas hopes that if civil society and the media continue to play their role as watchdogs then in time Ukraine will build a system in which the law is applied consistently and such perversions of justice are eliminated.
“If there was an established practice in similar types of cases not to let people go in these sort of situations, a judge would not have had any other choice,” he said.
“But because of the, I would say, opaque nature of what the law says in this country, judges sometimes are prone to take unjustified decisions, sometimes arbitrary decisions.”
