“I believe there should be a good mix of “fresh blood” and experience in the judicial system… I would not emphasize the fact that some candidate with a well-known name got into the new Supreme Court. It is also necessary to look at what contribution he can make to the stability of legal system”, –Dovydas Vitkauskas, Project Team Leader to the EU Project “Support to Justice Sector Reforms in Ukraine”comments.
This Project was launched in Ukraine immediately after the Maidan. Also, it provided the High Qualification Commission of Judges of Ukraine with financial and expert assistance in holding the competition to the Supreme Court of Ukraine. The total budget of the Project from the end of 2013 amounts to almost 9 M euro.
Why the representatives of the Project do not interfere in the political games regarding passing the procedural bill in the Parliament, why the Public Integrity Council needs being reformatted and where the dynamics of the judicial reform comes from, – in the interview with Dovydas Vitkauskas for LB.ua .
“There is no reason to reproach the HQCJU”
The competition to the Supreme Court started in November last year. The Law of Ukraine “On the Judicial System and the Status of Judges” foresees its completion in May this year. Is it appropriate to question the legitimacy of the competition in this case?
The fairness of the process is sometimes more important than its holding period. I don’t think that the period of the competition to the Supreme Court is unreasonable, next time we may provide more time for such kind of a competition given the complexity of checking the works of the candidates, duration of the interviews.
It is important that the Commission (the High Qualification Commission of Judges of Ukraine – ed.) brought this process to the end in order to ensure that the promises regarding transparency, technocracy of the process, application of the predictable selection criteria are kept.
The competition to the Supreme Court is unique. I do not know any country in the world which completely restructured the Supreme Court by holding a competition. This is a very difficult task politically, legally and technically. Ukraine has chosen the path of technocratic selection while in most European countries the judges of the Supreme Court are appointed through the political behind-the-scenes discussions without full justification of the criteria for such a decision to society or by giving society an effective channel for participation in the process.
The Commission held a special selection process of the judges. Some of its stages have not been applied in the public sector yet. For instance, a full psychological testing, during which the general knowledge (IQ), ethics and integrity, propensity for different psychological risks, teamwork and other parameters were tested. There are no questions regarding duration if one realizes the comprehensiveness and complexity of the process.
By the way, according to the results of psychological testing disclosed by the High Qualification Commission of Judges of Ukraine during the round table on July 20, 57% of the candidates showed the “above average” result.
The purpose of the psychological testing is rather to show the risks to the Commission in terms of psychological and social characteristics of the participants of the competition based on data collected during the interview with the candidates than to decide which candidate is better or worse. Such approaches are developed at the American universities and are used by consulting companies in business.
There was an opinion drawn up on each candidate based on which the Members of the Commission could operate with different criteria, data on each criteria in order to determine the acceptability of a candidate for the position of judge of the Supreme Court.
We generalized the different statistics by comparing the results of psychological testing. For instance, 98% of lawyers had “the least acceptable” psychological profile while only 91% of judges. 75% of academics complied with the profile of “ideal judge” while only 48% of judges. If compared by age, the group of candidates at the age of 33-34 years old had better results, the group at the age of 55+ had worse results. It is also interesting that male candidates had better results than female ones.
The HQCJU is being criticized for the fact that the practical task was carried out not on computers but handwritten. Based on the handwriting it can be determined whom the work belongs to what can be an opportunity for abuse during the evaluation. Have you had any remarks on this issue to the High Qualification Commission of Judges?
All the decisions, including evaluation of the practical tasks, were made collectively. The risk of propensity of one member or another to help someone from candidates is significantly reduced by collectivity. Moreover, the practical task shall not be confused with testing. There is no “right” or “wrong” answer, there is a way the participant comes to the answer. This way should be evaluated. This is a very important moment. We showed the methodology of evaluation to the Commission and our experts taught the Members of the HQCJU.
The HQCJU also determined the passing score for the stages of competition after their completion. How do you assess the application of such practice?
The Commission consulted with different experts, including the expert of our Project, regarding the possibility of application of such methodology. In terms of international standards of testology, such approaches are possible and acceptable.
The Commission had quite a specified task – to select 120 people at the end of the competition. But it is difficult to determine in advance the level of skills these participants will show. Using a theoretical passing score would create a risk to set it high or low. Accordingly, there could be a situation that very few or too many candidates will proceed to the next stage.
The Commission decided to eliminate from 100 to 200 participants at each stage. Perhaps, the Commission can change the procedure of participants’ selection for clearer and more predictable in the future. But following the competition as of today, we can positively assess the work of the Commission. Probably, even the European countries will learn something from Ukraine regarding the approaches to selection of candidates to the Supreme Court.
Have the cameras detected any violations in the class where the testing and practical task were carried out?
We are not aware of any abuses.
It should be noted that the first stage of the competition was the most difficult in the terms of number of the participants in the terms of logistics, security and transparency of the competition since it was necessary to organize the testing of 650 candidates, then practical task of 521candidates, to check all these works and to carry out the psychological testing of 381candidates. There is no reason to reproach the Commission, since the HQCJU invited foreign experts to observe all the stages. Moreover, the Experts of our Project, in particular, were directly involved in the evaluation of practical tasks and psychological testing.
The Commission starts the selection of candidates to study at the National School of Judges who will be able to participate in the competition of judges of first instance in the future. More than five thousand people submitted their applications for 600 places. Such a demand confirms certain level of confidence to the approaches of the Commission at least among the legal community.
Will your Project participate in this selection?
Few weeks ago we received an official offer from Mr. Koziakov to work with them on this selection. Currently we are studying the issue. In fact, we have to elaborate new questions to the testing, to change the topics of the practical task, to carry out psychological testing. This is even more complex activity than the selection to the Supreme Court.
How have you selected the experts who prepared the tests and practical tasks for the competition to the Supreme Court?
Together with the Commission we selected the experts who inspired confidence with quality of their skills. Those were the university lecturers, lawyers, former judges in Ukraine. As for psychological testing, we hold a tender to attract an independent company which would have the biggest experience in such kind of competitions in Ukraine. Company OS Ukraine which is actively involved in such kind of testing in private sector conducted the tests. The company also conducted the testing during the competition to the National Anti-Corruption Bureau of Ukraine.
“The process of drafting and justifying of the negative opinions of PIC is far from perfect”
Public Integrity Council was established before the competition to the Supreme Court. The purpose of its participation in the selection of candidates was, in the first place, to increase the confidence in the competition. How would you assess its role given the aggressive behavior of some PIC members, cases of subjective evaluation or the remarks of the HQCJU members regarding the abuse of authorities provided for in the Law “On the Judicial System and the Status of Judges”?
It should be noted that the establishment of such an institution as the Public Integrity Council is a unique practice. There is no such analogue in European countries. This is sort of injection of the civil society into judicial self-government.
Obviously, the involvement of PIC to the competition to the Supreme Court is a positive practice, but according to the opinions of the Experts of the Council of Europe, the other international experts, it is also necessary to improve the approaches, the methodology of evaluation of the participants by members of PIC. For instance, can they approve negative opinions on the candidates by 8 votes out of 20? Besides, it was not always clear whether members of PIC were announcing their own opinion regarding certain candidates or on behalf of the authority as a whole. This also needs a clear framework.
The Council of Europe and other international observers criticized PIC, in particular, because it consisted of quite a lot number of acting lawyers. There were cases, when some of them remembered exactly those cases in which they took part as a party of the trial during the interviews with the judges.
In my opinion, reformatting shall not influence PIC badly. It is necessary that it has less lawyers, more women and those who have different approaches to evaluation of an ideal judge. Then, probably, PIC will better perform the role which it was empowered with by the society.
At the same time, I would like to underline that when we analyzed findings of psychological tests, almost in 90% of cases, when PIC provided negative opinion regarding particular candidate, the same conclusion could be made based on the findings of psychological tests.
PIC should be given some time in order to team up as an institution. I believe that the role of PIC members will be really important in the future, including during the selection to the courts of first instance.
Do not you think that this authority received too much power? In order to overcome the negative conclusion of PIC, members of the HQCJU had to vote with 11 votes out of 16.
Let’s wait for the final result. I believe that the Commission has shown very big loyalty in the process of interviews as well as regarding the content of work of PIC. First of all, it allowed its members to fully participate in the interviews, to ask questions. One can argue if they have such right provided for by legislation. Secondly, the Commission indeed took into account the negative opinions expressed by PIC. Almost half of the candidates “vetoed” by PIC were excluded from the competition by the Commission. However, it should be underlined again that the process of drafting and justification of the negative opinions of PIC leaves much to be desired. If PIC is serious regarding its legitimate functioning as a body of judicial self-government, but not as “an external” lever of control, smoother interaction with the Commission will be reached in the future.
It is possible that there will be surnames of judges, lawyers or academicians in the final list of the competition winners with bad reputation. Will this affect the image of the HQCJU and the new Supreme Court in Ukraine and in the international society?
One of the reasons why in Europe and in the USA the process of selection is exclusively political and rather closed is that this method guarantees the stability of the legal system to a greater extent through the unity of practice, more precise and predictable judgments of the courts.
What does it mean? Usually, no one expects that a young person coming out of system will make a significant contribution to make the system more stable, clear and predictable.
I believe there should be a good mix of “fresh blood” and experience in the judicial system. This very approach to the competition, in my opinion, corresponds to the goal which the Commission wants to reach during this process.
That is why I would not emphasize that some candidate with a well-known name got into the new Supreme Court. It is also necessary to see what contribution he can make into stability of the legal system.
In one of your interviews you said, I quote: “Until recently, the reforms were made rather for the sake of appearance, to avoid the critics of the power by donors. Everything has changed after 2014 –a drive for changes appeared. And this dynamics is not decreasing. At what level is this dynamics visible? At the Administration of the President? In the Parliament?
When we start working as experts in any society, the main task is to explain to the society what justice means. It is not just the courts, but the whole system ensuring their work, including the bar, notary, enforcement service etc. There is no single ministry which would fully determine the policy of this system, change the legislation and implement it. Therefore, we need solidarity of a number of state and private structures in order to implement the changes.
First steps in this direction were made in 2015 when the Council on Judicial Reform, the advisory body at the Administration of the President was established. It has adopted the Justice Sector Reform Strategy 2015-2020 and the clear Action Plan of the reforms implementation together with it. Moreover, it gathers every year and determines the annual plan with more specific, procedural actions. The level of organization of reforms in the justice sector is really impressive. But the incoherence between different branches of power, institutions that have a connection with the judicial system in one way or another still remains.
For instance, the interaction of the Ministry of Justice and the judiciary. They are not used to “play” together. And attempts to get them work in pair take us some time. Still, I am convinced that there will be positive results.
On one hand, the Ministry of Justice does not criticize the judiciary for all the problems in the Ukrainian society any more. On the other hand, the judiciary starts thinking more structurally – it thinks of itself as a part of a more powerful system that should bring better services to the society.
Of course, the reform does not end with the establishment of consensus between the Ministry of Justice and the judiciary. It is also necessary to think about the bar, the Prosecutor’s Office, criminal investigation bodies which, again, have their own objectives and approaches for their implementation. They have to sit down at the negotiating table and to determine the direction of further steps.
Let us come back to my question. What was the source of strive for changes? Administration of the President?
The Council for Judicial Reform is the owner of the justice sector in Ukraine. Accordingly, the AP in this case took the most active stand, although the role of the Ministry of Justice in the reforms is also very valuable.
Now we are proceeding to make the Council something more than just an advisory body that meets oftener than two or three times a year. To have its meetings on a regular basis, with a clear, pre-determined plan. I would like the Council to monitor deeper how the reform is being implemented.
“You should not think that every member of the parliament can do anything s/he wants, only because s/he was elected.”
The Verkhovna Rada has not considered the bill on amendments to procedural codes, without which the new Supreme Court will not be able to start functioning.
Comprehensive amendments to the procedural law are an ongoing process. One should not expect that the parliament will amend the codes once and that’s all. It is necessary to constantly monitor how the implementation of these norms is coordinated with Ukrainian legislation and international approaches.
Do you communicate with members of parliament, convince them in the need to adopt this bill?
I am convinced that it is necessary to communicate with the stakeholders involved in its implementation before the bill is submitted to the parliament.
It is necessary to take into account how many lawyers there are in the parliament, how many can understand the nuances of the concepts incorporated in the bill on amendments to procedural codes. Probably very few. Therefore, Ukraine needs to think in the future about optimizing the law-making process. Work on amendments to legislation should be done before any bill gets into the Verkhovna Rada, and not after that.
Interaction between the parliament and other branches of power should be better. You should not think that every member of the parliament can do anything s/he wants, only because s/he was elected. In any state with a high level of democracy, bills that are submitted to the parliament pass certain procedures and expertise. And it is impossible to file a draft law, so to speak, from under the table. The role of government in this process should be more substantial. A very big problem in Ukraine is insufficiently regulated process of lawmaking. But I am not sure that the Ukrainian parliament is ready to change approaches in its work.
So you do not interfere in political games on the procedural bill, don’t you?
No. Such an approach could only give a short-term result. It does not change the system of legislation drafting. I think one could start with a separate law on how to draft laws. There is no such thing in Ukraine. One can run a special electronic system where to submit all proposals for a given bill. And then there would be no such situations when a bill was quickly introduced to the parliament, where it was changed beyond recognition and approved.
Let’s go back to the judicial reform. Have you noticed in the process of competitive selection or preparation of the legislative framework, the desire of one of the branches of power to get more authority to influence the judicial system in the future?
The temptation to influence the judiciary exists in any state. It is just necessary to establish so-called checks and balances. So that no one has the absolute power, each branch of power can control each other.
“Failure to enforce judgments in quantitative terms is an even greater problem than the quality of the administration of justice in the courts”.
Your project is also engaged in the reform of the executive service.
This is one of our key tasks. We believe that failure to enforce judgments in quantitative terms is an even greater problem than the quality of the administration of justice in the courts. Regardless of what was the result in court, the chance that it will be enforced is very small. In the civil process, the number of non-enforced judgments is more than 90%.
At this stage, the Ministry of Justice conducts a competition to recruit private enforcement officers (or bailiffs, as they are sometimes called in Europe). Almost 100 people have already obtained licenses for such activities. We hope that in August they will really be able to start working.
In fact, every person can come to a private enforcement officer, as they come a lawyer or a notary, can’t they?
Yes. Enforcement officers will not work as commercial entrepreneurs, but it is still a private activity.
The system uses their entrepreneurial spirit to find effective ways to get money from the debtor. To date, according to various estimates, the undistributed debt based on judicial decisions in Ukraine amounts to about 400 billion hryvnas.
Execution of court decisions is a key element to ensure that property rights in the country are protected. This, in turn, greatly affects the attractiveness of the state for potential investors.
How do private enforcement officers differ from employees of collection companies?
Private bailiffs can not be compared to collectors, since the activities of the former are clearly regulated and controlled by the state. This is not a commercial profession.
Private enforcement officers will have substantially more significant obligations than collectors. In addition, they will have broad powers to act on behalf of the state.
The system of self-government will supervise the ethics of behavior and the quality of work. The Ministry of Justice has the authority to enforce the legislation on private enforcement officers. If they violate the law, you can file a complaint to the court.
Will the work methods of private bailiffs change in comparison with the state bailiffs?
A private bailiff is more interested in obtaining results. S/He has no reason to drag out the process, because from effectiveness of work s/he will receive interests from the amount received through the enforcement of the judgment.
For the full enforcement of judgments it is very important to create electronic registers of all assets. One of the reasons why judgments in the European countries are executed and enforced quickly is that there are well formed registers where you can quickly find all the assets, simply entering the name or code of a particular debtor, and to seize his/her property. Therefore now together with the Ministry of Justice we are engaged in reform of registers in Ukraine.
What is the budget of your project since the end of 2013?
Almost 9 M euro. Next year, the EU plans to launch a new program called Law, which will work in two main areas: justice system (to consolidate and improve the reforms that are already underway) and reforms of police and Ministry of Interior, including the system of criminal investigation.