2021 can without exaggeration be called the year of anniversaries. 25 years of the Constitution, 30 years of independence of Ukraine, and the same for the system of economic courts. Also, 20 years ago, on July 11, a new network of appellate courts appeared on the court map. However, probably never before has the judicial system worked under such pressure as in recent years. Why did this happen and what real goals are covered by the screen of the next judicial reform? Is it possible to build trust in people on negative slogans?
mantle? "ZyB" talked about this and another with the chairman of the Association of Judges of Economic Courts of Ukraine, the chairman of the South-Western Appellate Economic Court Natalya Bogatskaya.
Natalya Stanislavovna, in your opinion, why is there a tendency to accuse judges of all problems in the state for the eighth year? They say that investors do not come to us because the courts are corrupt, and citizens lose faith in the state because they do not find justice in the courts, and they do not give us loans because we are in no hurry to reform them...
Unfortunately, one gets the impression that the trend "judges are to blame for everything", which is an invariable slogan of every judicial reform, is precisely the vector of reforming the judicial system set by the authorities, thanks to time. Its observance allows this very power to be in demand.
The populist thesis about total distrust of courts and judges, supported by personalities far from jurisprudence, can be understood: how else can one justify the endless reformation of judicial power, if its real purpose must be hidden from the ordinary citizen?!
Meanwhile, the goal of constant reformation of the same institutions of judicial power is quite prosaic and not original. It can be traced as the aspiration of the executive and legislative powers to subjugate the courts and judges, to strengthen control over them, to make them manageable, extremely tolerant, such that they respond to any whims of the authorities.
That is, the reform itself is used as an instrument of pressure on the courts?
It is more correct to say: the information company on the discrediting of courts is one of the tools for justifying the expediency of the next reformation. But there are others. After all, there are requests that will influence the decision of the court for abuse of power, facts of psychological and physical pressure on judges. Our Association has repeatedly covered such facts, they were the subject of appeals to the leadership of the authorities regarding the illegality of such actions.
In particular, attention was paid to the assumption by the National Police of the functions of anti-corruption bodies to check the declarations of judges, requests to carry out a comprehensive check of courts and exert pressure on their leaders. Until recently, it was a trend to manipulate law enforcement agencies by opening and examining criminal proceedings against judges under Article 375 of the Criminal Code. And only in June 2020, this norm was declared unconstitutional.
As a means of psychological pressure, accusations of "incompetence, corruption, bias and lying" and even calls for physical violence against judges were heard everywhere in the information field.
Such public displays of contempt for judges and courts on the part of deputies, state and public figures provoked in the history of judicial proceedings a whole stage of humiliation of the human dignity of judges for their chosen profession - from threats of physical violence to grenades in court sessions, Molotov cocktails, burning tires and completely destroyed halls court session. At the same time, the only legislative mechanism for the protection of judges from interference in their activities in the form of criminal liability under Article 376 of the Criminal Code turned out to be ineffective due to the inaction of law enforcement agencies.
Echoes of impunity for manifestations of interference in justice are experienced by the judicial system of Ukraine every day. And the "trendy" types of pressure inherent in past judicial reforms also continue today.
So, you think that all these claims against the domestic Themis are unfair, as well as the so-called mistrust rating, which isn't broadcast every day?
It will be fair when the level of trust of citizens based on the results of polls will be illuminated simultaneously in all three branches of power: judicial, legislative and executive. And only then it is possible to draw conclusions about the functional capacity of the institutes.
In turn, depending on the specifics of the activity of each of the branches of government, the respondents of the trust survey should be an appropriate representative audience with a mandatory study of the source of information about the activities of these or other bodies.
Perhaps in other countries, people are more familiar with general procedural issues and the effectiveness of the work of state bodies. And we mostly get information from TV and social networks. At the same time, and in the future, the tendency of politicians that the best report on their work is a criticism of the work of the courts remains.
Of course, it is more convenient to start your talk on the assessment of trust and references to sociological research, and as a rule, this is research by the Razumkov Center.
Let's take, for example, the latter and analyze it in the context of an equal balance between the three branches of power. 78% do not trust the state apparatus (officials), 76% of the Verkhovna Rada, 75% of the Government, and 77% of the judicial system. That is, all branches of government have approximately the same level of trust among citizens, within the limits of the research error. However, less than 67% of respondents do not trust local courts, 68% of the Supreme Court, and 70% of the Supreme Anti-Corruption Court.
Thus, even despite the constant discrediting of courts, especially local ones, the level of trust in them is significantly higher than in the parliament, which these same citizens elect.
I think that the figures of these polls are manipulative, because they rather indicate the level of satisfaction of the population with their lives. And they are unlikely to differ if a question about trust, for example, to sellers or neighbors, is added to the questionnaire.
If they ask about trust in the generalized image of the representatives of the categories you have given, then maybe it will be so. After all, a person cannot trust in general those whom he has not even seen in the eyes. In addition, it is not known what exactly each of the respondents invests in the concept of "judicial system".
At the same time, the results of the second survey, already among the participants of the court hearings outside the court premises (from October 21 to 28, 2020), showed that 66,1% of respondents in whose cases decisions were made recognized that they were legal and fair
So, it should be understood that the perception of the results of even the most objective sociological studies depends primarily on the angle of presentation of such information and the pursued goal.
By the way, the newly created bodies - NABU, NAZK, VAKS, Supreme Court, as well as the prosecutor's office, the police, which were completely reformatted, also have a low level of justification expected by society. So, shouldn't we stop at the creation of new bodies and think about the need to improve the legislation in order to improve the quality of the work of the existing ones?
Probably, they thought about it and decided that abroad would help us with confidence in the courts. Do you believe that foreign experts are able to solve this problem?
As for attracting international experts, in the context of judicial reforms, this is perhaps the most discussed topic in recent years. According to the Supreme Qualification Commission of Judges, the issue of their involvement has already been resolved, and the Supreme Council of Justice is next.
And regarding the answer to your question, here should be the same approach: assessment of the effectiveness of already implemented similar measures, assessment of risks, assessment of the balance between risks and the expected result, conclusion about expediency. We have practice, since we already have bodies formed precisely with the participation of internationals, but has this had a positive effect on the level of trust in them?
So what, in your opinion, is the problem with the formation of trust in the courts?
Any measures and strategies for the formation of public trust in courts and confidence in the rule of law will not be justified and effective in the case of systematic public disrespect for courts and judges. Public statements and judgments of people's deputies, officials, and prosecutors based on their "expected" outcome of the court case, criticism of the personality and professional qualities of the judge in whose jurisdiction the case is pending, directly influence the formation of people's negative attitude toward the court. After all, the legality of a decision that has not even been taken yet is already being questioned. This only creates disappointment in society in the proper protection of violated rights in court, and consequently undermines trust in the courts as a whole.
That is, in order for people to trust judges, they cannot be criticized?
Of course, in a democratic society, a judicial decision can be criticized, but not the personality of the judge who made it. Judges are ready for increased attention from the public due to publicity and powers, but criticism must be constructive and justified and not exceed permissible limits.
I note that the mechanism of the judge's responsibility is clearly regulated by law and ensures the basic principles of the rule of law. 3 types of declarations, 19 based on disciplinary liability and 9 state inspection bodies — isn't that enough control?!
At the same time, whether intentionally or not, the main ground for mistrust is not taken into account - the lack of understanding of the essence and order of consideration of cases by the court. Competitiveness is the main principle of judicial proceedings, especially the economic one.
It is the quality preparation of the parties for the trial, the chosen method of defense, the normative justification of arguments, objections and evidence that are important during the trial.
The court is not authorized to collect evidence on its own initiative, instead of the parties, relating to the subject of the dispute. The court can only procedurally assist the party in obtaining evidence - provided that the institutions and organizations refused to provide the party with certain information.
The judge is not an "investigator", he is an arbitrator who evaluates the legal positions of the parties and their justifications, evidence on the basis of relevance, admissibility and credibility in the order regulated by procedural legislation.
The court only assesses the evidence presented by the party in the form of case materials, not words, posters or articles in the mass media. In the conclusion of the KRES, it is noted that "judges should speak to society through court decisions and should not explain them in the press or make public statements." And at the demand of time, the courts have learned to work with the information space, will explain and react to preemption. Believe me, despite everything, they continue to work on improvement!
Even fierce skeptics, if they wish to objectively assess the level of openness and accessibility of the courts, will be able to freely access information about court cases; parties, the subject of the dispute, judges, their property status and the premise of possible conflicts of interest, financial expenses of the court and the like.
Regarding insinuations about the court and judges, it is already a personal choice to trust sources of such information and an elementary desire to check them.
But an ordinary citizen perceives a judge precisely as a representative of the government, who must resolve the dispute first of all according to justice.
Yes, indeed, people expect a just decision from a judge, and everyone has their own concept of justice. Along with this, the legality and justice of a court decision may not always coincide, because national laws do not fundamentally reflect justice in the understanding and representation of ordinary citizens.
Unscrupulous and short-sighted politicians and officials build their manipulative statements and comments on this, sometimes shamelessly using the common human desire for justice.
One famous director said that the system is created by people, but the system also creates a person. So, first of all, today it is necessary to change during the judicial reform in order to achieve the goals that are announced as the expected result of the judicial reform?
A brief overview of the previous stages of the judicial reform shows that in recent years there have been significant changes in the judicial system: new procedural codes have been adopted, there has been a transition from a four-tier to a three-tier judicial system, the subject and subject jurisdiction of disputes between courts of different specializations has been delineated, a new system of disciplinary responsibility has been created , the procedure for the appointment and transfer of judges, etc., has been changed.
However, the same theses are put forward to justify the need for another judicial reform: the fight against corruption, ensuring access to justice and the right to a fair trial. Currently, these tasks are updated with a thesis about the need to improve the investment climate in Ukraine.
Doesn't a politically neutral observer have a logical question: is it really possible to ensure the implementation of these tasks, as well as other bodies with a special status? What are the true reasons that hinder the movement to a fair trial?
Answers to these questions do not contain a single draft law or a concept of judicial reform.
However, according to the Strategy for the Development of the Justice System for 2021-2023, it is planned, for example, to create new higher specialized courts, including for consideration of administrative cases for consideration of cases involving central executive bodies and other state bodies, the jurisdiction of which extends to the entire territory of Ukraine.
That is, the further reformation of the judicial system is planned in the form of a new branching of jurisdictions, and consequently — and complicated access to justice. In this direction, the further reform of the judicial system may lead to the separation of courts according to the subject matter — consideration of family, "medical", "ecological" disputes, etc. Also, in the future, the formation of courts for consideration of disputes with the participation of... depending on the entity that is a party to the dispute (case) is looming.
The absurdity and fallibility of such an approach, in my opinion, is obvious.
At the same time, really serious problems, in particular — the additional staffing of courts, the introduction of the electronic justice system, the provision of guarantees of independence, including due to proper financing, are postponed, at best, or completely ignored.
In words, concern is expressed about the state of the judicial system, the lack of personnel, excessive workload, the length of the court process, and a low level of trust, as the main factors of the unsatisfactory investment climate. In fact, we have cut funding to such an extent that there is not enough for the salaries of the employees of the apparatus, nor for elementary things, such as paper and postage stamps, payment for services for the consumption of energy carriers, and the like. Therefore, first of all, it is necessary to recognize and solve the urgent problems of the judicial system, and then start to improve it.
And what, in your opinion, should be the judicial reform?
Constructive and consistent, to ensure an increase in the efficiency of the work of institutions of judicial power. However, along with the change of political power, the lack of constructive completion of the previous changes can be traced, but new, radically different ones are initiated, and so every time.
From the latter: neither the legal community nor ordinary citizens understood the essence and expediency of the reorganization of appeals courts by liquidating them. It's hard to explain it to me. I can only recall the colossal amount of liquidation work, the creation of a new legal body with the same functions, the termination of the administration of justice during the documentation of the procedure, additional financial costs, including new templates, court names, seals, and the like.
However, did the citizens get what they expected from the reforms — easier access to justice? After all, in the newly created courts, consideration of all unfinished court cases was carried out anew.
Sides of the world and serial numbers - this is how the names of economic and administrative appeals courts are now remembered. It has been 2,5 years, but these names continue to confuse both when paying the court fee and when filing appeals.
It is no secret that until 2019 we did not hear about the lack of funds for the implementation of justice. But recently, the Economic Court of Kyiv announced the termination of sending correspondence. Do you see the light at the end of the tunnel of this financial darkness?
To be honest, in fact, today the courts are undergoing another test due to the artificially created shortage of judicial personnel and lack of funding. We feel the unsatisfactory state of financing for the second hour in a row. In 2020, the amount of funding met the needs by only 50-60%. When the draft budget for 2021 was published in October, it became clear that the solution to this issue this year is not worth waiting for.
The new budget year began with court accounts payable and a shortage of basic goods necessary for the administration of justice, such as postage stamps, envelopes, paper, and the like. The volume of expenses of local and appellate courts not only did not increase, but on the contrary decreased by 4,31%.
The Supreme Court found that the level of meeting the needs of courts in financial resources for this year is 38,4%, which is the lowest indicator since 2017. Then it was 79,1%, in 2018 — 77,9%, in 2019 — 69,5%, in 2020 — 64,4%.
The announcement of the courts on the termination of sending of postal correspondence and the lack of funds for the payment of salaries to the employees of the apparatus is, however sad, but it is not even news.
As you know, last month the parliament still adopted amendments to the budget, providing for an insignificant but still increase in the financing of the courts, primarily for the salaries of the employees of the apparatus. Will this help to reach the end of the year?
The current costs of courts are not only salaries, paper and postage stamps. These are elementary expenses for the payment of communal services and energy carriers, which are provided in the budget for the courts only half of the needs. And if in 2019 and 2020 the courts stopped working due to the lack of judges with powers, then this is also due to underfunding.
Thus, due to the impossibility of completing the repair of the heating system, the consideration of criminal cases in the Bagliy District Court of Dneprodzerzhinsk was temporarily suspended. We also informed the bodies of the judicial administration about the prerequisites for the suspension of justice due to the impossibility of concluding a new contract for electricity supply. But here hostages of the situation would be both the Economic Court of the Odesa Region and the Odesa Regional Department of the School of Judges, since they are located in the same administrative building. A month of expected redistribution — and temporarily the situation is resolved, but temporarily.
Now, according to the information of the GSA and VSP, the deficit of funds already amounts to UAH 113,1 million. And this is only the beginning.
Regarding the critical state of underfunding of the judicial branch of power, the courts, the Supreme Court of Ukraine, the State Administrative Court of Ukraine, the GSA, judicial associations, including judges of the economic courts, appealed to the legislative and executive authorities, but the authorities did not hear, or rather did not want to hear.
By the way, the amendments to the budget that you mentioned were submitted to the President for signature on June 22. Therefore, we expect ...
One of the reasons for the judicial reform is that business, primarily foreign, does not come to our country because it does not believe in judicial protection of its investments. What can solve this problem?
For a favorable economic climate, the stability of legislation and the stability of judicial practice must be ensured. First of all, it will help the business to level the risks of negative consequences of legal disputes and reduce their number. Subjects of economic legal entities sometimes simply do not have time to adapt to numerous changes in legislation and their ramifications.
Substantial changes in economic conditions, corporatization of many enterprises, increase in the share of private property in the economy of the state, etc. affect the character of the legal entities themselves, from which the dispute arises.
For example, the trend of recent years is an increase in the number of disputes related to lending, protection of property rights, protection of rights in corporate relations, land disputes, when it comes to protection of rights in land relations, bankruptcy cases.
In addition, today it is almost impossible to find a case with a single claim. But within the limits of one dispute, many unresolved issues between the parties accumulate.
Courts are increasingly faced with the facts of double registration of immovable property, land plots, which were preceded by numerous transactions on acquisition, change or termination of mutual rights and obligations of the parties. It is not uncommon for the participants in the process to provide evidence that is generally mutually exclusive. For example, these are contracts related to the same subject, but different in terms of rights and obligations.
And against this background, the need to ensure a unified judicial practice becomes even more important, since its stability is the key to conscientious business law enforcement.
But it was to ensure this unity that the judicial reform of 2016 was announced.
As long as there are gaps and inconsistencies in the legislation, the courts will try to create something out of the "uncreated". After all, it is precisely the inappropriate quality of laws that leads to different interpretations of its norms.
It is necessary to understand that any legislative changes, even if they are very positive, cannot be made effectively in one day. Years are needed for this! And this will be confirmed by any international expert in the field of approval of legislative innovations.
Unfortunately, today it is impossible to establish the stability of judicial practice, especially in relation to such legal conclusions as: the basis of the implementation of the representation of the interests of the state in court by the prosecutor, the procedure for extending the land lease agreement on the basis of Part 6 of Article 33 of the Law "On Land Lease", the definition the deadline for applying to the notary with an application for execution of an executive inscription, depending on the subject composition of the legally related participants.
At the same time, the highest judicial body, which accumulates legislative gaps and must initiate legislative changes, still does not have the right of legislative initiative.
Also, for economic law, the excessive regulation of the order of consideration of cases only creates grounds for the abuse of procedural rights with the aim of delaying the consideration.
One of the advantages of economic courts was the fast resolution of disputes. Judges of the economic jurisdiction have always tried to adhere to the terms, realizing that this is not a declared requirement of economic relations. But it is becoming increasingly difficult to do this.
And not only because of the insufficient staffing of the judicial corps, which leads to an increase in the workload, but also because of the lack of funding. The procedure of review, regulated by procedural legislation, based on the date of delivery of the procedural document to the party does not work. There is no postage - there is no proof of delivery.
Thus, due to the lack of the concept of "official electronic address" and general requirements for the mandatory indication of an electronic address in documents with which a party applies to court, electronic correspondence is currently used only as an alternative to postal delivery.
Here it is worth recalling the effective judicial practice of the previous edition of the Economic Procedural Code. Then the proper notice was the court sending the decision to the legal address. In the case of its return by the company with a note of receipt or with reference to the absence (dropout) of the addressee, refusal of receipt, storage period, etc., it was considered that the addressee was notified of the time and place of consideration of the case.
So, the court must properly send only the initial ruling on initiation of proceedings to the address officially specified in the Register of Legal Entities. And the fact that the legal entity evades its receipt was not important for the qualification of the court's actions from the point of view of proper notification.
With the current version of the Code of Civil Procedure, almost every court procedural document must be sent with a note of delivery. Therefore, the narrowing of the list of such procedural documents will not only reduce the financial burden, but will also contribute to the terms of consideration of cases.
An alternative is also the legislative definition of "official e-mail" and the e-mail address in the context of proper notification of the participants in the proceedings. Corresponding proposals for improving the norms of the Code of Criminal Procedure, developed by judges, are sent to the Verkhovna Rada Committee on Legal Policy. And if the legislator is really interested in the effective judicial protection of economic entities, he must consider these proposals.
The 2021th anniversary of the creation of the public organization "Association of Courts of Commercial Courts of Ukraine" is added to all the other round dates that fill 5. What prompted the judges to initiate its creation?
Yes, the Association was created at the end of 2016. The reason for such a decision was precisely the events connected with the unprecedented systemic demand for pressure on judges and the need to establish communication with the public, mass media, and also between the courts themselves. It was necessary to build an educational work on the activities of the courts as soon as possible and increase the level of access to justice.
The association has become a platform for communication and unification of judges in their professional activities, an instrument for protecting the interests of its members from illegal interference in their professional activities.
In internal and external areas of activity, the Association and its separate subdivisions have repeatedly raised topics important for independent justice. And the main goal of the ACHS was and is an activity aimed at implementing the principle of the rule of law, independent justice, and improving the legislation.
This is, first of all, a generalization and the adoption of concrete measures to solve actual problems existing in the judicial system. Consolidation of the efforts of a wide range of representatives of the judicial, legal and scientific communities, including with the support of international projects and partners, with the aim of identifying and discussing the practice of applying the norms of substantive and procedural legislation and developing a unified vision in law enforcement.
For comprehensive coverage on the territory of each administrative-territorial unit, separate subdivisions are created and function. They are mainly concentrated in appellate courts. Each has its own leadership, mainly court presidents, and independently carries out activities to solve internal, organizational regional issues that require discussion by a wide range of lawyers and the fulfillment of the Association's statutory goals.
A separate direction is the analysis of draft laws and relevant current legislation, especially the Economic Procedural Code and the Code on Bankruptcy Procedures.
This is only the beginning of the big work to achieve the goals for which the Association was created. However, there are already achievements that one can be proud of - this is the consolidation and unification of non-indifferent professional judges of economic courts into one driving force, as well as the establishment of a dialogue between judges, scientists, lawyers, the professional legal community, professional associations of subjects of economic activity, civil society, and other branches state power and local self-government.
Summing up, can you say that, taking into account the current state of the judicial system, are you optimistic about the future? And underfunding, the lack of judicial personnel will not affect the quality of justice?
Today the countdown of the new history begins. At the very least, if access to justice is limited due to the absence of judges, the impossibility of ensuring elementary sanitary standards in the courtroom, or for other reasons beyond the control of the court and judges, then the level of awareness of citizens about the causes of problems in the courts will acquire a new quality and understanding the origin of these problems.
And the best evidence of the quality of judicial proceedings is facts. I will bring them in the context of economic jurisdiction. Thus, in 2018, 45,2% of the decisions of appeal courts were revised in the cassation procedure, 10,9% were canceled; in 2019, 26,9% were reviewed and only 7,1% of them were canceled; in 2020, the rate of reviewed decreased to 23,5%, and canceled to 5,8%.
So, I am convinced that even in spite of all the problems, for example, the lack of proper funding and numerous accusations by representatives of other branches of power, the courts will preserve and develop the acquired achievements against the background of openness and accessibility, and at a high professional level will continue to ensure the quality of the administration of justice.
By the way, on the occasion of the 20th anniversary of the creation of appeals courts, I want to wish my fellow judges and employees of the apparatus endurance, strength and inexhaustible vital energy in this responsible time! Let high professionalism, principles and tolerance be the key to effective court proceedings!
