On the newly passed law on the court system and the dangers to judge independence

In an interview given to the information agency “MOST-Kharkov”, Arkady Bushchenko, Bar Lawyer and Head of the Board of the Ukrainian Helsinki Human Rights Union, spoke of the problems with the recently passed law on the court system and status of judges: why the law is bad, how to fight it, and what to do so that judges work for people and not for officialdom. The following is an abridged version of the main points.


What is your assessment of the new Law on the courts from the point of view of human rights?


In my opinion nothing will change radically. It certainly won’t improve, in any case. In some aspects it could deteriorate since, for example, the competence of the Supreme Court on reviewing cases is reduced. Now it will only re-examine a case if one of the high specialized courts has doubts about the consistency of its practice. The applicants will furthermore have the impossible burden of proving lack of consistency». Arkady Bushchenko cites the Constitutional Court which has the same norm as his reason for believing that this will not work.


The Supreme Court, he notes, has a much smaller role in protecting human rights than the first instant courts where most cases are decided. “All that is required from the court system and the Supreme Court is to establish case law, some kind of consistent approach on resolving this or that court question. I think that the new law will not resolve this problem, but on the control exacerbate it.”


The law, he says, is applied very differently, and why is not clear. “At present in any first instance or appellate court on analogous cases you can get absolutely opposite rules. That means that what many judges of the Supreme Court have insisted on, the introduction of the principle of precedence, is not being carried out.” A first instance court does not have to follow a Supreme Court precedent on other cases – the judge can say that s/he is independent, free and can do as they wish. And they bear no liability for this, which Arkady Bushchenko says is a real problem which the new law only exacerbates.


“Effectively, 4 separate jurisdictions are created: civil; criminal; administrative and economic. They are so little connected that we will soon have four different types of law, 4 different legal systems”, which is absolutely absurd.


While at lower levels specialization of courts can be desirable, at higher court level it is important to strive towards the idea of single law, principles applicable regardless of the type of legal situation, that is “protect the law from disintegrating into several independent elements”. Ensuring an integrated legal system is the task of the Supreme Court of any country. .


Regarding promises that the law will reduce the time frames of court cases


Arkady Bushchenko sees no grounds for optimism, and stresses that reduction in the period allowed for lodging an appeal could seriously violate the rights of the parties since preparation of an appeal can take time.


As far as the periods for examination in court are concerned, there are already provisions which oblige judges to review cases fairly quickly, but this doesn’t happen.

He sees this as a systemic problem, not resolvable through introducing new legal norms, and notes that in Ukraine there is no understanding, even, of the need for court management. A second problem is the lack of financing. – the court simply doesn’t have the people, the facilities, even the stationery. You can bring in even the death penalty for missing terms, but it won’t help if the financial and practical sides are not resolved.


“Heads of the court are forced to go and bow to officialdom, pleading to be magnanimously granted 50 % financing or, if they ask really nicely, maybe, so to speak, interesting the officials, they’ll receive 70%. This is the problem, the law won’t resolve it.


The ban on returning cases to first instance courts will, he agrees, make it possible to reduce time wasting through ping pong between courts. However he says that the practice of returning cases to first instance courts was established a long time ago. He sees sense in it, and says that the authors do not give serious arguments for abandoning it.


“If this norm is accepted, it will lead to appellate courts approving any, however idiotic, ruling of those courts in order to avoid taking on the financially and organizationally burdensome role of these courts. If the appellate court overturns the ruling of a first instance court, it has to take on the examination etc itself. This is a huge headache which most will prefer to ignore by agreeing with any ruling.


Regarding the simplified procedure for dismissing judges


Arkady Bushchenko says that this can be a plus and a minus. The fact that it’s easier, could indeed make it useful in fighting corruption, however when they say that the mechanism for dismissal is very simple, this means that a judge will lack independence – s/he can influenced by threat of dismissal.


“The problem is that the law gives too much power for influencing the court system to the High Council of Justice, a political, not a judicial, body.


You can basically say that judges to a large extent lose their independence since their appointment, any penalties, career movement depend on a political body. And if this body is under the control of one political form, then it, as well as influencing politics (which is in the nature of things) will also influence the courts. It will force the courts to act in accordance with its changeable political moods, like some norms more, some less, approve everything that the executive and legislative branches do, not approve what their opponents say …


At that point a court stops being a court, because a court is intended specifically to minimize the influence of politics on the legal system. Politics should remain within the boundaries of the legal system and not the legal system within the boundaries of politics. Here is all turned upside down. This may be the most dangerous thing from all that is proposed in this reform”.


He goes on to say that the court system asked for what has happened by effectively doing nothing for almost 20 years. They did not form court tradition or corporate ethics, no proper disciplinary system etc.

“Now judges are terribly unhappy with what can be called rape of the judicial system. Yet they asked for that rape for 20 years.


I’m not sorry for them, but I’m sorry for our society which could in this political battle lose the judicial system in principle. We’ll have troikas [notorious during the Stalin terror – translator] or dwoiki [two judges], a political court where the political force (it doesn’t matter which) will decide what’s correct, what’s incorrect. What we are to like, and what to not like. What we have a right to and what we don’t. That’s what we’ll get!  You can dislike many judges. You can consider that they work badly, and that will be true. But you can’t destroy the court system because of that.”


He says that the new law does not take fundamental principles of court systems into consideration  This had been spoiled over 70 years and it needed to be restored not brought to its knees.

Asked how, he says that it’s necessary to begin with judges, and asserts that there is no proper legal education. “There are educational institutions of the Soviet type which simply foist the type of thinking which leads to a situation where such laws get passed. “


He stresses that judges must give motivated reasons for their rulings. And there needs to be constant professional development of judges since the law changes quite quickly.


The only area, he says, of agreement over the new law is in the reduction of judges of the Supreme Court, since there are presently around 100.  This is not the sort of numbers needed to gather and establish a single position. He stresses, though, that decreasing the number must be combined with changing procedural norms since at present the Supreme Court is totally overloaded, with anybody able to turn to the Supreme Court on any trivial subject. The Court’s role, he repeats, must be to establish precedents.


On mechanisms for appointing judges and bringing them to answer when needed


Arkady Bushchenko says that the flaw of the system is that people unprepared for court work become judges. They are nurtured by the very system. They may have been a secretary at court hearings, then after a while move on to become a judge’s assistant, then at the latter’s protection, become judges themselves. Or end up as judges after being investigators, traffic police, whoever. He says that this corrects the court system. He has nothing against investigators or traffic police, but they are not suited for court work.


Judges should, he says, be people who worked in the court on one or other side – a prosecutor or bar lawyer. However, the main thing is a court community which regulates itself own state of professional health. Where judges will themselves not tolerate some swine damaging the reputation of the profession. 


The Law has already been passed and the President will probably sign it, which means, as you put it, the system of judges will become hostage to the political situation. How will you fight this?


We will inform the international community about what is happening. Perhaps with the help of judgments of the European Court of Human Rights we will get certain norms revoked. We will approach the authorities and point to the failings. However the main hope is that politicians will understand that they too need an independent court system. If we remain within the framework of a democratic country, then any political force should understand that tomorrow it could be the opposition, and it will need to clutch on to something – to the law and independent court system.


Unfortunately, our politicians learn slowly – they’re people with unhurried development. Yet if we turn into a totalitarian country like Russia, Turkmenistan and Kazakhstan where everything is under the President or some political force, then you can forget about any independent justice system. That’s simply another system of values.


Your prognosis – what will Ukraine choose, democracy or totalitarianism?


The chances are about 50-50. I hope that democracy has a bit more. Not because our politicians care about democratic values, but because they won’t have the power to make a fully totalitarian state.


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