The Constitutional Court was established immediately afterwards, and the High Council of Justice was created in 1998. The Constitution provided for certain changes to how the courts of general jurisdiction were organised, following the framework of specialised courts and the new rules of the judiciary procedure. In 2001, Ukraine implemented the European system of appeal and cassation. For the judiciary, this meant that we joined the EU, that is, Ukraine introduced the European legal system.
The most tragic and unfinished issue from then has been the procedure to select, appoint and form the judiciary, as well as the bodies that enforce its accountability. No government and no reformers have offered the necessary changes ever since, even though this problem was defined as a priority back in the mid-1990s. Solving the staffing issue requires over a decade. It covers many aspects, from the extent of knowledge of law to psychological and moral capability, and more. This issue ought to be addressed systematically and gradually, not hurriedly and haphazardly.
This year, Ukraine has changed the Constitution in the sphere of justice and jurisprudence. This was a big mistake. The Constitution should not be changed in the times of war. Justice can definitely be reformed without amending the Constitution. You just have to find other ways to do it. Under the new rules, the High Council of Justice is made up of judges by over 50%. While the whole purpose of the judiciary reform was to overcome the clan system, which, as widespread opinion holds it, has cultivated itself within the judicial system.
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Comprehensive measures to change public attitude to the judiciary are needed. The primary task of the authorities is to stop the stigmatisation of judges. Journalists, NGOs and citizens have the right to criticise, because they are not limited in any way. However, judges are also harassed by the authorities: Prosecutor General, MPs, government officials, and representatives of the Presidential Administration. When an official leaves public office, he or she can say whatever. But not while in office.
I support just criticism of judges. But it’s wrong to say that all judges are bad because there are some bad examples. Think of the Maidan. There were doctors who hid the wounded from the authorities and operated them in secret. But there were also those who obeyed the orders and handed the activists over to the authorities. Similarly, there is a category of unscrupulous judges, let's say, 30%, but it’s wrong to say that the whole judiciary is bad. There are those who protested, those who resigned, and those who acquitted or refused to consider the cases of Maidan protesters under various pretexts.
The greatest obstacle to reforms in Ukraine are the people, not the law. Even with bad laws you can make positive changes when there is will to do so. In 1990s, French consultants recognised Ukraine’s procedure of forming the High Council of Justice (HCJ) to be "the most democratic." At that point, the HCJ was selected and approved by representatives of seven branches of public and legal spheres. Still, the same French experts added: "Yes, this is a great step towards building a democratic society from the theoretical point of view, but will you not get trapped in your own roseate assumption that your society is ready to live up to these theoretical principles?" So far, as it turned out, the French were absolutely right.
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I can see no prerequisites for a rapid change for the better any time soon. During the year and a half after my retirement from the Constitutional Court, I visited a number of court hearings and HCJ meetings. What I saw is appalling. Those dealing with criminal cases ignore the constitutional aspect of law. My impression is that they never read proof theory or studied systems analysis. A judge can use a legal provision out of context and consider the matter resolved with it alone, while forgetting that one provision cannot be applied in its pure form to some legal relations, since it overlaps with other categories of relations.
Next, we can leave out the provision ensuring that 50% of the HCJ is made up of judges and move to the selection process. I would be ready to grudgingly accept an option where NGO representatives and human rights activists with training in law convene and elect candidates from the judiciary. But, since HCJ members are elected by the Conference of Judges, how can we fight the clan system? Just recall that Oksana Tsarevych, accused of abuse of justice in cases of Maidan activists, was elected delegate to the latest Conference of Judges. As a result, it comes out that a "clan" gets to elect a "clan."
Viktor Shyshkin served as the first Prosecutor General of the independent Ukraine in 1991-1993, MP in three convocations of the Verkhovna Rada in 1990-2002, and judge at the Constitutional Court in 2006-2015
Translated by Anastasia Leonova
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