Who judges the judges? Peter Solomon on Successes & Challenges of Legal Reform in Ukraine

Hello and welcome to Ukraine Calling, your weekly review of what’s been happening in Ukraine with a focus on a main issue. I’m Oksana Smerechuk for Hromadske Radio in Kyiv, and here’s a look at some of the stories that were in the news this week.

HEADLINES

CULTURE and MUSIC

LOOKING FORWARD

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FOCUS INTERVIEW: Canadian Judicial Reform Expert Peter Solomon talks to Marta Dyczok about the Successes & Challenges of Legal Reform in Ukraine.

Dyczok: Peter Solomon is Professor Emeritus of Political Science, Law and Criminology, at the University of Toronto. He is one of the co-founders and long-time director of the Petro Jacyk Program for the Study of Contemporary Ukraine at the University of Toronto’s Munk School of Global Affairs. He specializes in post-Soviet politics, and in the politics of law and courts. And is one of the world’s leading experts on judicial reform in Russia and Ukraine. He has been involved in the Support for Judicial Reform in Ukraine Program sponsored by the Canadian government for a number of years. This week he was in Kyiv to speak at a major international conference on, “Independent Judges and Free Media: Synergy for the Future.” I’m Marta Dyczok for Hromadske Radio’s Ukraine Calling. Professor Solomon, thank you very much or finding the time to speak to us.

Solomon: It’s a pleasure, Marta.

Dyczok: Legal and judicial reforms are arguably the foundation for all other reforms, since if courts don’t function properly then it’s impossible for individuals to protect their rights. Ukraine has been reaching out to international experts for advice in this area for the past two decades, with, I would suggest, mixed results. Let’s start with the conference you were attending this week. Could you please describe the conference to our listeners, what was its purpose? Who were the organizers? The participants? What were the main findings, outcomes from the event?

Solomon: The conference brings together the courts, judiciary on the one hand, and media on the other. It’s part of an effort to give some serious national attention a nagging problem, which is how the courts are presented in the media. I do not think it’s news to your listeners that public trust in and evaluation of courts in Ukraine is very low. It is actually got worse after EuroMaidan. In part because branches of power encouraged criticism of judges. But in any case, we went from the situation when 15% to 20 % of the public trusted the courts, which is kind of the norm in Southern and Eastern Europe, to single digits when 5% or 6% had some respect for courts, even though more than that would actually go to courts.

In our project we decided it was particularly timely to increase attention that we gave, or our Ukrainian partners gave, to court-media relations. We are working in two regions: Odesa and Ivano-Frankivsk, with judges, journalists, civil society organizations, advocates, on all measures that people can do to improve court-media relations.

In this case [the Forum in Kyiv] we are trying to give the issue national attention. This is much desired by leaders of judiciary and journalist world. In fact, at the opening session, we had a line-up of very prominent figures who, I would say, came to ‘bless’ the conference. There were over 100 judges and media people. Many judges came not only from Kyiv, but from many other parts of the country. People who thought a lot about what could be done in this area.

Now what I was presenting, was a talk on comparative experience, on what is done in the USA and Western Europe. There are two really different traditions. One of them is in USA and Canada, whereby staff of courts take the role of helping journalists, explaining things, defining rules, working with them – in other words – the role of a press secretary. Whereas in the European tradition it is judges who do this. What’s immerged in the last 20-30 years is the role of the press judge. One or two judges in a particular court who actually take on responsibility of talking to journalists. Interestingly enough, what has been happening in the last 2-3 years both of these roles have emerged.

In fact, if you look at legislation or regulations in 1,5 year after EuroMaidan, orders were sent out in the country that they should have both of these roles. The problem is that most of people fulfilling them, staff positions, have backgrounds in law and not in communication. They do not really know what they should be doing. So training is something we are working on.

I was particularly impressed at this conference by some of the presentations by press-judges and court secretaries from different parts of Ukraine. They were talking about their experiences and their challenges. It was very full program and a lot of speakers. I think the most valuable thing is that judges of different schools and journalists were talking about these issues to each other, and shared perspectives.

One of things that was done by the conference organizers was that they took quick instant polls at the beginning and at the end of the conference. At the beginning people were asked, “What is the state of relations between judges and journalists?” Over 60% said “bad” or “very bad”. Then they were asked at the end of the conference “On having had these meetings, what do you think the prospects are for the future?” Substantial share of those people who had been so negative at the beginning showed some hope and came up with much positive answers. We had a sense that conference had accomplished something for individual members, for people who attended. It is also clear that the subject got tremendous media attention. As an event involving media, naturally, there was lots of journalistic coverage and quick TV interviews. Even I did a couple interviews in Russian, with people from the different parts of the country. In short, that is what this event is about.

Dyczok: That is very interesting. You mentioned that judges are meant to fulfill the role of informing the public. Could you explain how it is supposed to work? I do not know if I even heard about this before. Are they supposed to hold press-conferences regularly?

Solomon: It’s that sort of thing. In fact, I was talking about what is done in the Netherlands, in Spain, and so on. Not just any judge but the press-judge, particularly. Say, there is a high profile case that people are very interested in. Periodically the press-judge (not the judge who is actually handling the case in the court room) would either do a press conference or meet with journalists, explain thing. And if you are lucky enough to have a courtroom where there is also a press-secretary, then the two can work together. In Spain, they discovered that a lot of judges do not know how to talk to journalists.

Dyczok: It’s an absolutely different skill set…

Solomon: Exactly. And they need help. I suppose in this part of the world the idea of a judge being responsible to connecting to a society is not that strange as in the Anglo-American world. If you think about, it in Soviet times, judges were indeed expected in the 1920s and 1930s to go out to factories, talk about what they were doing. When you move particularly into the post-Stalin period, when judges were elected (to be sure in a non-competitive elections) one of their duties was to periodically go out and talk in public settings explaining what was going on. The judges even had an obligation to hold office hours and let the members of public come and ask them questions. In various international projects we have been trying to discourage that sort of thing, because it may give one side an advantage, or at least the appearance of that. I have a sense that it may become in the next 3-4 years, to have the judges doing these sort of things, rather than to have a staff person who can devote a lot of time to it.

Dyczok: That’s a very interesting historical context that it might be easier to introduce these sorts of positions in post-Soviet context. Something you said earlier about level of trust towards courts and towards judges that has decreased since the Euromaidan protests, do you have any insight about what is causing this? Is this, perhaps, the matter that there is more freedom of speech, so people are expressing themselves more openly or is it your sense that the courts and judges have started performing more poorly than before? What is causing this?

Solomon: I don’t think they are performing more poorly. It is much more a matter of what appears in the media. I mean, it is more free, of course the media is extremely open. And I think that overwhelming majority of coverage of what goes on in the courts is negative. But then, contributing to that, what judges have told me in many parts of the country, is the tendency of legislators and people in the executive branch to scapegoat judges. They say that is where the biggest problems of corruption are, or sometimes lawyers, who lose a case that people are following, will go to the press and say ‘Eh, the only reason we lost is because the other side paid more,’ or something like that. So, you get a lot of that stuff. But you know, hopefully your listeners know that there is a major new wave of judicial reform underway…

Dyczok: That’s what I wanted to touch on next, because they’ve been introducing these reforms. So, in your opinion, how successful have they been if they are still getting all this negative media coverage?

Solomon: Well, this is early. Remember, reform is not something that happens overnight. A key piece of legislation, there was some kind of agreement as to what sorts of changes to personnel and structure they would really go with about a year ago. But let’s put it this way, they are doing two things. They are trying to renew the judicial core, review credentials of current judges. Trying to find ways of weeding out people who either are incompetent, or there are signs that they must be corrupt, because of their living style, the cars they drive that they could not possibly afford in any other way. So, there is this big process of re-attestation that’s been going on. In fact, that started even before a year ago. And some judges, frankly, don’t want to put up with it, they don’t want to do it. Either because they find it offensive, or, frankly, because they think they will be shown off. So a lot of judges have left, retired early or moved out.

There are a lot of vacancies. And actually this includes judges who had had five year terms, but it came up for life appointment, but then Rada decided that they had to go through the whole new attestation and appointment process. So, there are actually people who are attached to courts and are being paid salaries, but are not allowed to hear cases.

It is very early to know what will come of this. But there will be a lot of new judges eventually. And hopefully, there will be new social expectations that will translate into new norms. It is not clear if that will happen, because if the old structures are there, the old system of evaluation, new judges may behave the way old ones did.

But the other thing that is going on is a big time institutional change. And we’ll see what comes of that. They have changed the functions of the High Council of Judges, of High Qualifications Commission, changed the composition of these bodies, and I must say from what I see of them, they are performing their functions (selection, promotion, discipline) much better than they used to. And certainly in a more transparent way.

But the other big institutional change relates to the top courts. They reached a point under Yanukovych, when the Supreme Court was cut down and made quite small. And there were three high courts, cassation courts, one for administrative cases, one for commercial and one for civil and criminal, which did most of the work. And if you took three courts plus the Supreme Court, you had nearly, I guess, four hundred judges at the peak of the system. A decision was made that those three high cassation courts are all going to be eliminated. And a new Supreme Court is being formed, which could have two hundred judges, but start with a hundred and twenty. An extraordinary thing of this winter and spring that everybody is watching, is a process of selecting judges for this new Supreme Court.

Dyczok: This what I wanted to get you to focus on: who judges the judges? How do you set up a system where you have a tradition of corruption in the courts and a political will to clean that up? Who is in a position to make these evaluations? What is the process?

Solmon: Well, you are absolutely right, it is a very complex process. First of all, the body that decides on which people will make it through the competition is a High Qualifications Commission. It has a new composition that includes some judges, but also lawyers, scholars, it is a mixture of people.

Dyczok: Who did the vetting of that commission?

Solomon: Well, the different people who are handling the selections..

Dyczok: So, is this a political body?

Solomon: No. The advocates were selected by the advocate organization, the judges by the, I guess, the council or the congress of judges, I do not remember which level. But what I wanted to say, to answer your question it is important to add that there is another body involved – the so called Public Integrity Council, which is about fifteen people, who work voluntarily. Two thirds of them are from the so called Reanimation Group, which is a sort of radical reform group, they emerged after Euromaidan.

Dyczok: Coming out of civil society…

Solomon: Coming out of civil society and what they get to review – the dossiers and materials on every candidate, who at least passes the introductory stage and issue an assessment. And they have three of four different grades. And if they issue a negative assessment, say this person should not be a judge because we see signs of corruption or some other ethical problems, it’s an ethical review. Then this information goes back to the commission and the person is allowed to proceed the competition only if eleven out of fifteen members of the commission decide to overrule the Integrity Council. We don’t know what the total picture will be. But I had a long conversation, actually this weekend, with one of the members of the Council, so I am sort of up to date on what they are up to. They are trying very hard and one of the other things to say is this whole process is extraordinarily transparent. The reports of this Council are public. The sessions of the Qualifications Commission include not just a group as a whole, but interviews that they do with candidates for the positions on different stages. These are all available. You can watch them online on the website of the Qualifications Commission. It is really quite extraordinary. And the same thing, if you want to get some of it, there is a newspaper Sudebnaya Yuridicheskaya Gazeta which also carries a lot of this material.

Dyczok: This sounds like the process is very well organized, you’ve got political actors, professional actors, civil society actors, transparency. Something that I was listening to you speak occurred to me, what happens if they can’t find enough honest judges?

Solomon: Good question (laughs). I think they are OK. I mean, given the standards. This is a big competition, and what I should mention, it was open not only to people who are working as judges, including all of those people in high courts that are being abolished, but also, for the first time, to academics and practicing lawyers. And in fact 30% of the applications were from those categories. Some of them are not going to do well, because they could not get the dossiers together or other things. But my guess is that the new Supreme Court in the end will be at least 10% from people who came from the side, and represent completely new blood. One of the things that happens through a judicial career is that you become somewhat of a conformist. Remember that Ukraine has the same system as most West European countries, where you become a judge a few years after law school. It’s not like Canada or the US where it’s something normally for mid-career, where you’ve worked for 20 years in a legal capacity. So, if you work your way up the judicial bureaucracy, you tend not to be independent minded in the way you approach issues. Some of these other people, I think, may well introduce a new degree of energy and creativity.

Dyczok: I don’t know if this is within your realm of expertise but, to attract talented new people with good qualifications, there’s an economic dimension.

Solomon: Oh yes.

Dyczok: In your view, from what you know, is there enough economic incentive for these well trained, legally trained people with integrity to enter state service, as it were?

Solomon: Well, I hope so. They’ve raised the salaries quite drastically. I don’t have the figures in front of me, but the position of judge on the Supreme Court will be extremely well paid. And even judges on lower courts are going to get a lot more than they did. And even so, they were doing better than comparable civil servants, better than procurators [prosecutors], for example. There’s a recognition that paying judges properly is a necessary condition for a new quality of justice, although probably not a sufficient one.

Dyczok: So, from everything you’ve said, it sounds like the reforms are moving forward. And yet public opinion about judges continues to be low. How do you fix that problem?

Solomon: Well, you have to develop a communications strategy, for the country, for particular courts. That’s the whole idea. You have to remember the tradition, if you go back 10 or 15 years, was for the courts to do almost nothing for journalists. Not only not have nice guidelines to say when you could use cameras, when you can do this, when you can do that. Not explaining what’s going on with big cases. Even making it hard for journalists to get into the courtroom. A lot of judges didn’t want journalists around. In fact to this day some of them are quite suspicious of journalists. They say, ‘oh, they’re all on somebody’s payroll. They’re corrupt. You think we’re corrupt. What about those journalists?’ There’s all kinds of traditional misperceptions, or exaggerated perceptions, that need to be overcome. And I think that when most courts start dealing with journalists and society around them in an effective way, I think public trust in the courts will change. It’s not something you expect overnight. You don’t measure this in months, you measure it in years, as a minimum. And if in that same period you have new judges, you have courts that work better, that help people better, and all that gets reported, that’s the whole idea. People in the courts have to give journalists something newsworthy, that’s positive.

Dyczok: Maybe Ukraine needs a Law and Order type of TV show, to explain how things work?

Solomon: I think it has some, but that’s a whole other subject. But those have to be done very carefully too. I remember from the Spanish story. When the press judges started working, one of their goals was to overcome, to correct misperceptions that a lot of the journalists had about what courts did, which were based on American television shows that were shown in Spain. It’s like everything else, it’s a question of how good they are.

Dyczok: Well, it sounds like there’s room for hope in this area, that reforms are on track, and it’s just a matter of keeping them that way. Is there anything you’d like to add that I didn’t ask you?

Solomon: Well, there’s the Constitutional Court, which is having all sorts of trials and tribulations. I think that the judges there are afraid, they’ve got some very big, controversial cases that they’re ducking. It’s kind of a weak spot that I worry about. The biggest problem, of course, is the context. This is a country that you know, that everybody knows, is at war, has a declining economy. It’s not easy to change institutions in that context. And when you talk about corruption, corruption is not something that was ever unique just to judges and courts. It’s a general government problem.

Dyczok: Absolutely

Solomon: A general government problem.

Dyczok: And a societal problem.

Solomon: And a societal problem.

Dyczok: People offer bribes all the time.

Solomon: So I stop and think. Suppose we have a regional court. What about their staff? Staff in courts in Ukraine are paid miserably. There’s a huge gap. As judges salaries kept going up and up and up, much of the staff salaries did not. There’s no question that in some courts, money is paid by litigants that basically goes to support staff. Often it’s both sides that pay money, and it’s more of a service fee than an inducement. But again, if that kind of practice continues, the public will remain cynical. So, these are complicated matters.

Dyczok: They are indeed. But you’ve given our listeners a very insightful picture into what is happening and what still remains to happen. Thank you very much.

Solomon: Everybody should remember that the work of this Forum, Conference was above all part of a wonderful Canadian Support for Judicial Reform Project, as you said at the beginning.

Dyczok: We’ve been speaking to Peter Solomon, an expert on legal and judicial reform from the University of Toronto. I’m Marta Dyczok for Hromadske Radio, thanks for listening.

HEADLINES

Language Laws passed on TV broadcasting

The Ukrainian Parliament passed a bill this week, requiring that a minimum of 75% of TV broadcasting be in Ukrainian. The bill was passed by a majority of legislators and will be law once signed by the President. The language quotas will be in place from 7am to 10 pm. The 75% minimum would apply to national broadcasters, but local and regional broadcasters may have a 50% minimum Ukrainian-language content.

This follows a law, adopted in November last year, establishing a Ukrainian language quota for radio. It requires a minimum of 50% radio broadcasting in Ukrainian. Also, Ukrainian songs are to feature more prominently on radio. The starting quota was 25%, increasing to 35% over the following year.

Tax officials arrested in an anti-corruption crackdown

Ukrainian authorities have arrested 23 high-ranking tax officials, who were working with ex-President Yanukovych’s associates. According to Interior minister, Arsen Avakov, the officials arrested had been involved in helping the Yanukovych family avoid paying 96 billion Hryvnia in taxes. The massive crackdown was announced by Ukraine’s Chief Military Prosecutor, Anatoliy Matios, on the 24th of May. The operation involved more than 1,700 police officers and about 500 military prosecutors, who conducted raids in 15 regions across Ukraine. The tax officials were detained and brought before courts in Kyiv. Most have been released on bail while waiting for further hearings.

Reactions to ban on social networks

We reported last week, that Ukraine had increased its sanctions against Russia by banning certain social networks, Odnoklassniki and VKontakte and Yandex online services. In the past week, there was a different reaction to this move in different parts of Ukrainian society.

On the one hand, human rights organizations and journalists, and many users of the networks criticized this ban, saying that it limited the freedom of expression and was undemocratic. There was a high volume of users of these networks, around 20 million users daily.

Yet on the other hand, this move was supported by many Ukrainians, and particularly by people from the government and security services, who felt that a ban like this, was long overdue. Particularly since the social networks were being used as instruments of information warfare.

The Head of SBU Security Services of Ukraine, Vasyl Hrytsak, explained the need to restrict access to Russian social networks because they are used by the Russian propaganda machine to brainwash citizens. Hrytsak stated, that the SBU had found over 800 Anti-Ukrainian communities in these networks.

In a related move, Ukrainian border guards expelled the Head of the News Service at the Ukrainian Channel Inter, Igor Shuvalov, who is a Russian citizen. He was declared Persona Non Grata for spreading propaganda, according to the Interior Ministry.

According to MP Anton Herashchenko, Shuvalov’s presence in the media was used by the special services of the Russian Federation in anti-Ukrainian active measures. He was involved in a large-scale campaign to disrupt European integration reforms and was actively promoting Russia.

The War

This week was relatively lucky for the servicemen of the Ukrainian Armed Forces, as there were no soldiers killed on the frontlines. However, due to the ongoing hostilities, 26 soldiers were wounded in action.

There was shelling all along the frontline, but the area around Avdiivka was a hot spot and shelling destroyed some private houses. The Ministry of Defense commented that the two areas that experienced the most provocations were around Avdiivka and in the Mariupol area near Maryinka.

CULTURE

In a country that is undergoing reforms, budgets for culture tend to shrink and cultural needs tend to become low priority. Which leaves lots of scope for community activists. One large project that has been gathering traction this spring is #Sosмайбутнє оr #SOSfuture. The idea is to gather grassroots support to identify cultural sites and community places that need rescuing and to build up a national register on a website. Once the sites have been identified, private donors can contribute and organizers are hoping that government grants will also be found to restore significant cultural heritage sites.

One example of a site that is targeted by SOSFuture as needing attention, is the Park with Folk Sculptures, located in SeveroDonetsk. It has a unique collection of outdoor folk art and has been a focal point for local community, but now has deteriorated and being located in the Donetsk oblast, close to war frontline, hasn’t helped.

This week on Thursday, one group of SOSfuture cultural volunteers, spearheaded by Art Ukraine Foundation, set to restoring Shota Rustaveli Square in Kyiv, which has been an outdoor community space, a focal point for Georgian culture and literature in Kyiv, but which has sadly become neglected. The volunteers, assisted by a class of schoolchildren, and some support from Kyiv city gardeners, restored plantings, removed graffiti and cleaned the square. The general idea was to make it once again user-friendly. But that was just a warm-up before the group starts on more ambitious projects from their register, such as the Severo-Donetsk Park or restoring a castle or two.

MUSIC

And here’s a song for you about spring. It was performed in the 1970’s by the Kyiv band Vizerunky Shliakhiv, which means something like Road’s Ornaments. It that featured the now legendary Taras Petrynenko. It’s a love song about spring. But because it contains lyrics about the gold sun reflecting in the blue sky, the colours of the then banned Ukrainian flag, the Soviet authorities frowned on it. See what feelings the retro song evokes in you.

LOOKING FORWARD

Next week Bohdan Nahaylo will be hosting the show and looking at Ukraine and international issues. Tune in for a new episode. And we’d love to hear from you. Write to us at [email protected]. I’m Oksana Smerechuk for Hromadske Radio in Kyiv. Thanks for listening.

Interview transcribed by Larysa Iarovenko, Ilona Szieventseva, Max Sviezhentsev. Marta Dyczok. Headlines and Culture, by Oksana Smerechuk. Music selected by Marta Dyczok. Sound engineer Andriy Izdryk. Web support Kyrylo Loukerenko.