"Only by creating proper conditions for the work of judges can we speak about the results of judicial reform"

Lawyers have found themselves in the epicenter of the legal reform. They have new opportunities for representing the interests of individuals, new guarantees of the protection of professional rights, and new promises to reload the bar as a whole. Did the reformers take into account everything? On the eve of the Judicial Forum of the Bar Association of Ukraine, Oleg Malinevskiy, EQUITY Partner, told about what they forgot to prescribe in the procedural codes, what significance for the reform the real independence of the judges has and why they are still procrastinating in the adoption of the relevant law.

The past year was extremely busy for the bar community. Lawyers received new codes and declared the exclusive right to represent the interests of litigants in courts. Has this changed the professional field as a whole? What are the key points you could point out?

There are several such moments.

Firstly, the role of the bar as a public institution has increased in recent times. Indeed, not least this was facilitated by the position of the legislator in securing the exclusive right of attorneys to represent interests of individuals in courts at the level of the Main Law. This gave a powerful impetus to increase the demand for services of attorneys. Although it is mostly not a qualified request, but a request due to the formal need in the presence of an attorney. After all, a business that was previously satisfied with the work of its own in-houses now needs or wants to have its own attorneys. Moreover, lawyers themselves, who previously represented interests of individuals in courts and do not want to change the direction of their activity, understand that they need a certificate of an attorney. Nevertheless, the number of lawyers began to increase rapidly. Apparently, this trend will continue in the current year. Accordingly, competition in the market for services of attorneys will also increase.

Secondly, along with the growing role of the bar, pressure on it began to intensify. This is natural, because when the role of an institution increases the number of those willing to influence it also increases. Law enforcement agencies, individual members of the public, entire community organizations, and various political forces try to impose their will on attorneys. Last year, some attorneys, as well as the bar as a whole represented by self-governing bodies, had to confront protests, beatings, threats, political manipulations that unfold around the future of the bar. Of course, this is reflected on the mood of the representatives of the profession.

Thirdly, the lawyers themselves are changing. If earlier the attorney was primarily associated with the criminal process and we imagined him as a mature, experienced person, now the lawyer is significantly younger. The realities of today require more mobility, greater creativity, mastery of novelty technology and legislative changes. This makes the professional community more mobile and, perhaps, more interesting.

And finally, fourthly, it is worth understanding that the bar is not in a vacuum. Therefore, changes that take place in the courts, in law enforcement bodies and in the society as a whole do reflect on the bar community. All in all, the bar is in a state of reformation and it is not known when this reform will end. 

Obviously, it will happen when the new edition of the special law is adopted. However, parliamentarians are procrastinating too much. In spite of the fact that the same project No.9055 has been in the Verkhovna Rada for a long time, he has never been on the agenda. Why do you think it is so?

In 2012, at the time of the adoption of the current specialized law, attorneys were ready to consolidate and defend their own independence. Then revolutionary regulations on qualification and disciplinary bodies, which were composed exclusively of attorneys, as well as independent self-government, were supported by all members of the professional community. Of course, there were a few dissatisfied and even injured, but there were only a few of them. 

Now there is no such unanimity. In my opinion, this is due to both the complex structure of the bill and the different sentiments in the circles of attorneys, which hinders constructive discussion.

So the bill actually consists of two parts. The first concerns the strengthening of the guarantees of legal practice and, in principle, is not opposed by anybody. After all, every attorney wants to have proper protection of his or her professional rights and this protection is never too much. Although, I note, now we have enough mechanisms to protect the rights. In addition to the guarantees provided for by law, many regional councils and the National Bar Association of Ukraine have established advocacy committees that have already proven themselves as effective mechanisms to counter violations on part of law enforcement agencies.

Another part of the document relates to changes in the system of self-government, access to the profession, and approaches to disciplinary liability. And here are some problems. There are attorneys who are fully satisfied with the model introduced by the current law on the bar. They are convinced of its optimality and try to preserve it in every possible way.

There are lawyers who do not interfere with the discussions and even are ready to agree on the proposals of the authors of the bill, in order to continue to stay away from the processes taking place in the professional community.

Also there are also such lawyers who for a long time have been initiating various disputes in the environment of attorneys and are now trying to take revenge in the course of radical changes. They have the support of certain political forces and some of the pro-grant organizations, who believe in the possibility of full re-formatting of the lawyers.

As for me, I treat these ideas with caution. After all, even after legislative changes, the expected re-formatting may not be successful, and the system that, though is not perfect, has been justifying itself for many years will be lost.

And what place in this debate is for the system of free legal aid? After all, for some reason it is separated from the bar, although it is made of the same attorneys...
- I have a distant relation to the system of free legal aid. But, in my opinion, it is one of the great tools of this struggle. It is like a certain electoral field, on which some political forces in the bar are counting in discussing future changes and in forming the composition of self-governing bodies. It seems to me that there is no definitive position in the system. The former director of the system had a great influence on this institution, he, we must admit this, did a lot to create it. However, the system is changing. New leaders are emerging. And it is still not clear on whose side those attorneys will be.

And how did the judiciary change from the point of view of an attorney?

There are also two aspects here: changes from the inside and changes from the outside. Both of them, in my opinion, were rather incomplete in their form as well as in their substance, but they not only failed to solve the urgent problems, but also created additional inconveniences.
For example, let us consider internal reformatting. New editions of procedural codes were adopted. They were positioned as those that were able to fundamentally change the approach to the process. However, fundamental changes have not been seen yet. Yes, there were new rather interesting mechanisms. For example, the expert opinion in the field of law. However, such a conclusion is not evidence and serves only as a benchmark for the judge who will make a decision. Or the institute of witnesses in the commercial process. But we formerly also took explanations from the informed individuals in writing, got them notarized and provided to the court. Yes, we can refer to the fact that now the witness in the commercial process will bear criminal liability for false testimony. However, I do not know of any case where a witness would be brought to liability in the civil process. Although the institute of witnesses has been operating there for many years.

Another aspect is that the legislator has tried to tighten up the procedural deadlines and discipline the parties, in particular regarding submission of evidence. However, in practice, if a party fails to submit evidence in a timely manner, it will initiate another process to "legitimize" its evidence or will wait for the decision and initiate a review of the case for newly discovered circumstances. Thus, one subject matter of the dispute can generate several processes that will take time in the already overloaded courts.

The question about the possibility of co-defendants to sue each other within the same process remains unresolved.

Undeservedly, the legislator ignored the notion of class action. After all, allowing multiple claimants to state their claims for the same remedy would be more logical and more economical.

But the Supreme Court has pilot decisions ...

This is not the same. Pilot decisions are made in administrative jurisdiction only and mainly in social disputes. They really become precedents that the plaintiff can refer to when applying to the court of first instance, but such an individual appeal must still take place.

All these and many other shortcomings, in the end, not only did not relieve the load on the courts, but also made it more cumbersome and more formal. Unloading can be due to a long-awaited electronic court. However, provided that it does not turn into a sms-notification program and an archive of court decisions.
Now we have a unique opportunity to introduce a justice system software that could, for example, set clear requirements for the form and content of documents. This would not only simplify their search in the system, but also discipline the plaintiffs - would make them to clearly state their prayers for relief in of claim and the grounds for appeals. Over time, the program could even independently make decisions on minor issues, etc. If this is not done, the opportunity to digitalize justice and introduce the novelty information standards may be lost.

And about the form ...
So, now look at the form. A new Supreme Court was created. And the fact that we have finally come to the three-unit court system is an undeniable advantage. But at the same time the Great Chamber has appeared. Theoretically, it should form judicial practice. However, not all cases fall into its consideration. The GCh of the SC by itself determines what to consider and what not to consider. And if we look at the whole mass of its decisions, we will see that most of them deal with issues of jurisdiction, as it is provided for in the legislation. Lawyers expect more from the GCh of the SC.

Next, the appellate courts. Some courts have ceased to exist, some have been united and their names have been changed. In my opinion, such changes were probably addressed to the public, which can not track the legal aspects but sees new signs on buildings. These changes are quite ambiguous. For example, the criterion for the changes is not clear - some courts were distributed according to the territorial criterion, which was reflected in their names. Other courts were numbered. There also remains a jurisdictional division. That is, there was an artificially created confusion, which, in my opinion, was not worth the effort and money.

If at some time the reformers had had enough courage, one could, by the example of some European countries, refuse to divide the courts into jurisdictions, choosing to create separate chambers. Then, citizens would be deprived of the hassle of determining the appropriate jurisdiction on their own. If there were an error, the suit would move automatically to the desired chamber, which would greatly simplify the perception of justice.

Well, of course, the first instance. So far, one of the most painful consequences of the reform has been lack of human resources. Some courts do not have a single judge with the authority to make justice.

Obviously, it would be appropriate to introduce transitional periods in the implementation of new codes and in reformation of the judicial system. Perhaps then the changes would have been more painless.

Has the level of trust in the court changed?

Such a concept as "level of trust" should be treated with extreme caution. This is due to the results of social surveys. Thus, the representatives of the Center of Rozumkov received a rather low level of trust when those who were not related to the courts were asked about this. At the same time, the same indicator among respondents that one way or another dealt with the judicial system is much higher.

In general, the level of trust in court can hardly be judged objectively.

First, the level of trust in court can not be high in a country with a low level of trust in the state. Secondly, we really have a certain number of decisions that make us doubt the level of justice of the courts. However, it should be noted here that most of those verdicts were made due to imperfect legislation. Nevertheless, such decisions are stand apart from the general mass.

Thirdly, is it worth having trust in the court to which you can come in balaclava, commit a rape, fight in the court hearing room, burn the tires in front of the building, and so on. The impunity of activists plays a role in shaping the authority of the judiciary.

But we have the freedom of speech ...

Freedom of speech is something different. For example, when the US Supreme Court ruled on labor rights, which affected interests of hundreds of thousands of people, the convention of those people could be understood.
In Ukraine, the courts do not make such fateful decisions. As a rule, protesters are almost always involved in a particular case by one of the parties and are used as an additional means of exerting pressure on the court. And if one party can get the support of "non-indifferent" citizens, why the other can not do this? How can the court in such a case make an unbiased decision? I believe that the state should not only increase the responsibility of judges, but also provide them with adequate protection.

But we have Article 374 of the Criminal Code.

Indeed, but this article is almost not applicable. Instead, law enforcers are "in love" with Art. 375 of the Criminal Code, which provides for liability for the making of an unlawful decision. Sometimes there are absurd situations - criminal proceedings are opened even when the decision "survived" in the appellate and cassation instances. But, despite the fact that the entire court vertical has recognized the verdict as just, the investigator adheres to another opinion, taking over the powers that are not inherent in his office. What is this, if not another way of putting pressure on judges?

Look at the court decisions. Almost all decisions of the SC and many of the decisions of the lower courts refer to the practice of the European Court of Human Rights. When making a verdict, Ukrainian judges are forced to refer to all possible regulations in order to be on the safe side. How can a judge be guided by the principle of the rule of law, if he or she will have to answer the decisions to disciplinary or law enforcement agencies?

Therefore, I consider it necessary to delete Art. 375 from the Criminal Code, and to edit Art. 374, reinforcing responsibility for obstruction to justice. After all, by creating proper conditions for the work of judges and by ensuring their independence, we can talk about results of the judicial reform and of the bar reform.