Leaders of change
It is 5 years since the Revolution of Dignity, and it is already possible to sum up certain results of the reforms that the society demanded at that time. EQUITY law firm partner Oleg Malinevskiy presented his assessments and prognosis.
- 5 years ago we, Ukrainians, spoke for changes, for real protection of rights in courts and since then we have been moving in the direction of change. It's time to look back: have we achieved what we wanted? Has it become easier for clients to resolve their disputes?
The process of judicial reforms is, naturally, difficult and complex; it involves not only judges, lawyers, and other professional proceduralists, but also politicians, business, society in general. Therefore, no immediate results should be expected. Moreover, the time limits given by you are of a conditional nature, since formally the country has been undergoing judicial reform since far 1992, on the other hand - only a year has passed since the entry into force of the new procedural codes, the practice of application of which is still at the stage of initial formation. Among interim results, it is worth mentioning personnel changes - it is about updating the personal composition of the judiciary, in particular the Supreme Court, and changes in the mentality of the judges themselves, their openness, readiness for changes and self-improvement. The introduction of the monopoly of the bar, among other things, put on attorneys the role of leaders of changes in court proceedings, reporting and adapting their substance to the final recipients - members of the entire society.
I am convinced that when evaluating reforms, the time measurement should be used with extreme caution, since it is precisely this time measurement that the risk of destructiveness is laid in. Citizens who mostly lack the necessary knowledge in the judicial field are in a hurry, waiting for immediate changes - from the imprisonment of all whom they consider as scammers to the winning decisions in absolutely all private cases. But this contradicts the essence of judicial practice. The parties to the dispute are always two parties with opposite legal positions (the plaintiff and the defendant, the prosecution and the defense), of which only one is in the end correct. This is natural. And, it seems to me, the problem of the legislator is the high pace imposed from outside, and therefore allows for organizational flaws. The result of this is lack of professional personnel, courts overloaded with work and other difficulties of the transition period, which cause even lower trust in the courts.
- Attorneys can professionally assess the quality of legal proceedings: Are processes really competitive and judges independent?
Of course, an increase in the material provision of the judicial corps, along with the introduction of transparent procedures for the selection of judges, have positive effect on the level of their independence. As for adversariality, this issue is mostly procedural and legal. Unfortunately, the updated codes did not suggest any revolutionary changes and, therefore, it is still to be hoped for the professionalism and conscientiousness of the judges and procedural monopoly of attorneys.
It is worth taking into account the strengthening of the role of the public, whose unregulated activity has a contradictory effect on the independence of judges and adversariality in specific court cases. It is a question of the numerous semi-professional activists who publicly take the side of one of the parties, arranging rallies in court and theatrical performances at hearings, or harassing judges in mass media and social networks. Such extra-procedural influence gives a psychological "advantage" to one of the parties in proving its own right, while undermining both the adversariality of the process and the independence of the judge. These are unacceptable things that must be prohibited, and the relations between the public and the judiciary must be regulated as much as possible.
- What changes have become decisive in order to assert that the reform has taken place?
As long as the personnel aspect of the reform prevails over the content. Time will show how critical and, most importantly, positive the upgrade of the judiciary corps and the reformatting of the courts will be. Regarding categorical statements, I will confine myself to stating that the reform as such is underway, and this is important, as it shows the existence of political will for the necessary changes. And they will certainly come on the condition of the public support and consolidation of efforts of the entire professional community.
Implementation of a reform is a hard work; adoption of legislative changes in fact means only the beginning of an active phase, the success of which depends not only on the judiciary, but also on all of us - attorneys, prosecutors, media representatives, and the public. Being in constant mutual communication, one must identify a clear roadmap for further industry development, and it is important to analyze and correct errors on this complicated and long-term path as quickly as possible.
- The most sensitive type of justice is criminal. Are there any real changes in this area?
Despite the lack of a new version of the Code of Criminal Procedure, changes in the criminal justice system have been most significant in recent years. One of the main reasons for this is the change in anti-corruption legislation and a determined course to fight corruption. New anti-corruption bodies with a completely new philosophy and principles of activity have been created, a significant area of public relations has been criminalized, with attributing it to "white-collar" crime. Both in the society and in the law-enforcement activity – there is presumption of guilt. That is why there is a need to reform the criminal-procedural law and provide attorneys with a wider legal instrumentarium for client protection.
The aforementioned anti-corruption changes have reformed the structure of domestic legal practice, led to an explosive demand for attorneys in the field of "white collar crimes". Also, the portrait of a typical TOP attorney in the field of criminal law has changed. He has become much younger, and the horizons of his knowledge are no longer limited to knowledge of the classical rules of criminal law and process. With highly developed practices in the criminal law, bankruptcy and dispute resolution practices, we are proud that EQUITY has become one of the few effective procedural "trouble-shooters" on the entire domestic market..
- Why do we hear about negative experiences and unfair court decisions more often? Even acquittal verdict or decisions in favor of a person in resonant cases always cause criticism, or even condemnation of society?
Unlike other state bodies, the court only begins to carry out its mission when a dispute is already underway - an active legal dispute between several members of our society. Regardless of the legal justification of the final decision, it is most obvious that one of the parties will be dissatisfied with the result. Imagine that this dispute has a great social resonance and the majority of the society is on the side of one of the parties. So the root of the problem is in real and imaginary expectations of the society: it wants from the court a conviction of a particular person or a particular decision based on the rules of law. Frequently, these are different things.
Indeed, the society has a simplified view of the judiciary, when the judiciary becomes a kind of the sacrifice goat in the field of all legal problems that are not resolved by the state. But the court - it is only a law enforcement agency, which in its activities is limited to the requirements of substantive law, the formation of which is the exclusive prerogative of the legislative branch of power.
- Do you feel the offensive on the rights of lawyers in your daily activities?
The issue of observance of rights and guarantees of legal practice has become especially important in the criminal-procedural sphere. For law enforcement officers, the attorney is not only an uncompromising procedural opponent, but also a source of evidence. Despite the legal professional privilege guaranteed by the law, attempts to conduct searches in the premises of attorneys, seizure of documents, and interception of their telephone conversations with the purpose of further formation of the evidentiary base against the client are not uncommon. The risk of such violations of the rights of attorneys increases when they provide protection of interests in resonance cases upon charges of corruption crimes.
Obviously, having received a public carte blanche to imprison the next "corruptionist", law enforcement officers consider it superfluous to consider anything else that could prevent them from achieving such an honorary mission, even such a trifle from their point of view as attorneys’ rights. I hope that the society will soon change its attitude to the bar, depart from the practice of identifying the lawyer with the client, finally realizing that it is the attorney that is almost the only independent superhero whose vocation is to protect the rights of everyone from any violation of their rights, especially from the state repressive machine.
- Do you think lawyers are united in protection of their rights, can unite against the offensive on their rights to strike, as it was recently done by notaries?
Lawyers not only can but also repeatedly prove their ability to be united and resolute in advocating their own rights. I am convinced that notaries and other independent professions should take over the experience of fighting for their own rights. The point is not only in the form - although here attorneys have something to be proud of, too - the activity of bar committees to protect the rights of lawyers, initiation of hearings in the Parliament on specific cases of violations of rights of attorneys, the existence in the professional organizations of attorneys of Committees of attorneys' rights and mobile violation response groups, and many more.
In this context, an important milestone for the domestic bar was the reform of 2012 and the formation of independent bodies of the bar self-government. Of course, attorneys can conflict with each other about their own self-organization, especially on staffing issues, but they, fortunately, are monolithic and unshakable in protecting their own profession from any external threats, especially from law enforcement agencies.
- What is the success of a lawyer measured by?
Success is a highly evaluative and philosophical category. Perhaps, the main measure of the success of an attorney is the human factor, primarily the team and clients. The first component - the team - is the intellectual basis of success and at the same time testifies to the ability of the attorneys to unite highly skilled peers around them. Clients and related projects are the evidence of the professionalism of the attorney and his or her team. Respect of colleagues, high places in ratings and other external attributes of success are only derivative evidence of the fact that the attorney and his firm are on the right track. Given the highly professional and family friendly EQUITY team, as well as the high rank of our clients, we are proud of the success that we have been able to achieve in recent years and we are glad to be looking forward to the future.
Certainly, our team and our clients are the quintessence of our common professional success. We have something to be proud of and somebody to move forward with, jointly implementing incredible ideas and projects. Also, while professing the philosophy of responsible leadership, we support projects in the field of lawmaking, legal education and professional communication, openly share our own practical knowledge and experience, thereby making a significant contribution to the development of the successful future of the entire legal profession.