Trust building

 

In its latest issue, Yurydychna Gazeta published the results of The Best Lawyers in Ukraine 2019 rating, according to which Oleg Malinevskiy, Partner at EQUITY, was recognised as the best lawyer in judicial practice.

 Going around the circle

  "The main goal of judicial reform and the formation of an independent judiciary is restructuring of the judicial system, creation of new legislation, and improvement of legal proceedings forms. During the reform, it is necessary, through effective separation of powers, to guarantee autonomy and independence of the judicial bodies from the influence of legislative and executive powers; to implement democratic ideas of justice developed by world practice and science; to create a system of legislation on the judiciary, which would ensure the independence of judiciary; to bring courts as closer to the population as possible; to clearly determine the competence of different parts of judicial system; to guarantee the right of a citizen to have his/her case considered by a competent, independent and impartial court."

The given quote borrowed from now historic Regulation of the Verkhovna Rada of Ukraine "On the Concept of Judicial Legal Reform" dated 28 April 1992, is still relevant during today's reform changes. It is really telling that the society is still distrustful of the judiciary and does not regard court as an independent institution.

This disappointing conclusion is confirmed by the results of a sociological survey conducted by Razumkov Centre in December 2017, according to which 78.1% of the population in general and 52.7% of those who have experience in communicating with courts do not regard courts as autonomous, and judges – as independent. At the same time, only 8.3 to 8.9% of respondents believe that judges are guided by the law and circumstances of a case when delivering judgments.

Thus, for more than a quarter of a century (almost the entire period of being independent), the country exists in the process of judicial reform and constant "improvements". During this time, system of commercial (1992) and administrative courts (2004) was created, the High Specialised Courts were liquidated, and some time later numerous amendments were introduced to the codes of procedure and judiciary staff was rotated.

However, the constant changes in the procedural legal landscape and faces of those wearing robes failed to ensure the most important thing – creation of a complete confidence in the judiciary. After all, it is precisely its restoration that is almost the main goal of the next (already jubilee) wave of judicial reform.

Without understanding the real reasons for the inefficiency of previous legislative attempts to build confidence in court, inefficiency of the new stage of judicial reform initiated by introducing amendments to the Constitution of Ukraine, the launch of the updated Supreme Court and the entry into force by new codes of procedure are at risk.

 Factors of doubt

The analysis of unsuccessful changes made during the 25-year marathon of legal and judicial reforms on restoring confidence in the judiciary provides a logical conclusion that factors which lead to the society doubting are wider and more complex than the names of signboard on court buildings, the names of those wearing judge robes, or even the content of the rules of legal proceedings, and are largely determined by the following.

Firstly, organisational miscalculations while the concept of reforms is losing its value.

Considering the long-lasting and permanent nature of judicial reform for Ukrainian independence, drawing an analogy with art, reformatting of the judiciary in Ukraine can be compared with the construction of the Sagrada Familia by Antoni Gaudi for Barcelona and Catalonia. According to legends, the construction of this architectural masterpiece is not completed, since the World will end should it be.

In this aspect, the results of a nationwide survey conducted by the Democratic Initiatives Foundation, in cooperation with the sociological service of Razumkov Centre from 19 May 2018 to 25 May 2018, are not very optimistic. According to the survey results, the vast majority of citizens (73% of respondents) regard the progress of judicial reform as unsuccessful (furthermore, 43% consider it completely failing). Only 10% of respondents rated it as successful.

I have repeatedly emphasised that the process of restoring confidence in judiciary is a "two-way road". Acceleration in the opposite direction (towards the decrease of confidence) is much higher. All it takes is one reckless step that can undo the previous achievements. That is why it is of critical importance to set clear deadlines for certain stages of the reform and to pre-explain to the society and business community their real consequences (which are sometimes connected with their temporary inconvenience), thus preventing inflated expectations.

In addition, in this aspect, it is of prime importance to take into account the practical experience of applying certain procedural institutions (especially such fundamental ones as filing a claim, appeal or cassation appeal), as well as statistical data. Failure to take such a simple step can lead to extremely unpleasant consequences for the society (for example, excessive load on court).

Indeed, we already have an unfavourable situation, when the approximate average load on a judge of the Civil Cassation Court is 1,520 cases, and the Administrative Cassation Court – overwhelming 2,213 cases. Obviously, such things have a negative effect on the observance of reasonable timeframes for considering cases, the quality of judgments, and ultimately cause distrust in a court as a human rights institution. Legislative force majeure, like the "Lozovoi's amendments", only adds chaos and pressure to the justice system and, as a result, adversely affects the level of confidence in court.

Secondly, controversial nature of justice and negative media coverage.

Given that the issue of society’s confidence in court is essentially a matter of society’s subjective perception of publicly available information, the quality and objectivity of such information are decisive. This is especially true for a professionally unprepared audience or for people who have never dealt with courts or have no legal knowledge. They easily perceive the uncontrollable negative media coverage of court and judges, which is spread by public channels of communication (media, social media sites), often becoming a victim of information manipulation.

The results of the Razumkov Centre's survey for December 2017 speak for themselves in terms of understanding the domestic information policy on legal proceedings and its consequences. According to such results, the level of distrust in court among those who deals with court is 41.4%, while among ordinary citizens the level of distrust is catastrophic 80.9%. Thus, those people who do not have practical experience in communicating with court and receive information from hearsay (media, acquaintances, etc.) have much less hope in justice than those with relevant experience. Moreover, conclusion of this sociological survey directly highlights that the highest level of distrust in court among all state institutions is precisely due to a negative media coverage and a factor of financial and political influence on judges.

As regards the confidence indicator of 41.4% (of those dealing with courts), it can partially be explained by the controversial nature of cases, which, as a rule, have at least two parties contesting, one of which, most likely, loses a case remaining dissatisfied with the result and judge's decision.

Thirdly, general distrust in the authorities and politicisation of judicial reform.

Regretfully, the judicial reform, having wide public response, became the object of attention and speculations for politicians (both pro-government and opposition ones). The pro-government politicians usually emphasise only the positive aspects of changes in judicial system, without explaining to society the possible thorny and long-lasting path to their achievement. The members of the opposition bluntly ignore the obvious positive changes, focusing the public's attention solely on miscalculations and unresolved issues.

The political speculation surrounding the creation of a new Supreme Court can be a good case in point. After all, it was a chronological and informational flagship of the entire reform. So, one camp highlighted only the unprecedented openness of the recruitment process, almost the impeccability of each and every winner, while the others, focusing on a certain miscalculation, took a stance "the game is up, let's start all over again".

This is also the case with the Anti-Corruption Court of Ukraine, the creation of which has become a rather political issue (with an international flavour) than a socio-legal one. Without denying the possible benefits of its implementation, the lobbying for the creation of a new body in judicial system was accompanied by a direct pressure from certain representatives of the "active" public, while publicly discrediting the already received positive results of the reform (regarding the same unprecedented renewal of the Supreme Court staff).

Fourthly, the quality of legislation and legal culture.

There is no point in expecting fair justice under an unfair and controversial material legislation, as well as the legal nihilism that is quite common for our society. After all, the vast majority of the most high-profile judgments, which survived on the verticals of the entire multilink system of judiciary, are generally made with the formal observance of law.

Should we analyse them from a professional point of view, the factor that contributes to public response would be the imperfection of the material law, most often on corporate regulation, lending and banking relations, state registration system, etc.

For sure, the procedural component also matters when we talk about the formation of a general picture, but the possible abuse there is usually concentrated in several legal institutions – preliminary injunction (in case of a claim, appeal and cassation appeal), reconsideration of judgments upon discovery of new facts. In this context, it should be noted that de facto there have been no revolutionary changes.

On the contrary, new legal dilemmas have emerged. For example, the issue of challenging a judgment delivered by a court of appeals on the merits of a dispute by a person who did not participate in a case. 

Since, based for example on Part 4 Art. 287 of the Commercial Procedure Code of Ukraine, which provides that a person who did not participate in a case, if a court resolved an issue related to his/her rights, interests and/or duties, has the right to file a cassation appeal from a judgment only after it is reconsidered on his/her appeal to appeal petition. Therefore, in order to exercise the right to cassation appeal guaranteed by the Constitution, such a person will have to formally appeal a judgment of a first instance court (which has already been quashed or amended), which was logically delivered in his/her favour.

Fifthly, no legal guarantees of authority of the court.

Western standards, which the Ukrainian society is at least declaratively seeking to achieve, provide for deep respect for judge (regardless of surnames, only by status). Of course, authority of the court that exists there and the means of its securing exclude the manifestations of "public activity" common for us, in particular the dissemination of false information about a judge in the media, quasi picketing of dissatisfied activists and citizens, etc. Clearly, it all is a manifestation of pressure on court in a certain case and discrediting of its authority.

Sure, we can say that authority of a judge is one of the manifestations of trust in him/her. That is why the unacceptable cases of pressure specified could be regarded as consequences of social distrust.

In order to break this vicious circle, it is necessary to work systematically aiming to ensure public respect for judge and his/her authority in society. What is important in this case is not only the information support, but also the specific legislative instruments, including those of criminal law nature. In this regard, the following steps may be helpful: decriminalisation of Art. 375 of the Criminal Code of Ukraine, which is often used by law enforcement agencies as an instrument of putting pressure on court; expanding liability for any manifestations of pressure on court, interference with judge's private life; formal and direct prohibition of any manifestations of public activity (picketing, demonstrations, etc.) in a courtroom, court building and within the area around a court; establishment of presumed unreliability of disseminated negative information about a judge, as well as consideration of bringing criminal action for false accusations of a judge.

Cementing optimism

In no way trying to blacken the picture, I have tried to describe some of the challenges that most often undermine the confidence in judiciary and can annul the good intentions and significant efforts of legislator to reform it. Obviously, they cannot be left behind and require a prompt response from relevant state and public institutions. Furthermore, I would like to briefly dwell on the trends that have been formed during the reform, which are already beginning to facilitate restoring public confidence in court.

Firstly, transparency of judges and recruitment procedures

Despite certain complaints about the methodology of calculating votes and adopting final decisions for certain candidates, we can state that the procedure for forming the new Supreme Court was unprecedentedly transparent. At the same time, the new supreme body of justice still adheres to transparency trend, not least because of the scientists and attorneys involved in judicial circles.

The judges being active in social and mass media, direct explanation of the content of certain judgments and review of judicial practice, public discussion of general issues of legal proceedings and practice regarding certain categories of disputes and other activities have become common phenomena for the post-reform reality. Moreover, society has the opportunity to obtain information from the original source, to understand the specifics of activity of judges and the logic of their judgments.

Secondly, formalisation of the process

Since I support the idea of the broadest formalisation of legal proceedings, I cannot but approve the emergence of a new structure of judgments of the Supreme Court (though, yet at the level of certain judges’ initiative). I believe it is an important step towards restoring confidence in court, ensuring that the content of judgments is understandable, that they are lawful and substantiated (at least as regards the consideration of all arguments of parties), ensuring unity and sustainability of judicial practice.

I hope that this idea will be further developed and that, based on a unified information and telecommunication system enshrined in the law, we will get a unified, clear and transparent matrix of procedural documents when resolving a dispute (statements of claim, objections to claim, judgments, appeals and cassation appeals, documents admitted as a result of their consideration) that will have a single and unified structure.

Thirdly, education and professional development

The main trend of the processualists’ legal life is education. Court officials now have a training period. It includes general study of new codes of procedure by each and every representative of the legal profession, preparation for certification of judges and mobilisation of knowledge before exams of candidates for attorneys. Finally, the issues of reforming the legal education are being actively discussed. Today, judges are already trained taking into account the Western standards, with the broad involvement of knowledge in sciences that are adjacent, but crucial for communication with society (e.g., psychology, sociology, neurobiology, etc.). Furthermore, due to an extensive attorney-oriented educational campaign the public is objectively provided with access to knowledge about the updated legal process.

In conclusion, I would like to emphasise that any changes start with each of us. Therefore, the overall success of judicial reform and restoration of confidence in court will be impossible without a qualitative change in the mindset of both the professional legal community and society as a whole. I hope that such self-improvement and, thus, qualitative changes will be a fact of life in the era of digital technologies and open access to valuable knowledge.