Ukraine's judges are still not aware that they are the ones who create justice instead of various bodies with competing powers.
Poland will probably no longer be able to create or rebuild the justice system from scratch. The reform of the judiciary is mainly based on further improvement of insignificant detail in an average working machine. The car has been slightly tuned for thirty years, and no one noticed that each season exploits it excessively.
So maybe it’s time to buy a new vehicle? Maybe you should start thinking differently about moving around? Maybe instead of a car we will start by taking the train, walk or cover short distances with a scooter?
By translating the car market into justice, one could start thinking about reducing court cognition, popularising an alternative dispute resolution mechanism, and ways to provide online support for the judiciary. To promote restorative justice.
And to paraphrase Magdalena Ogórek, the former social democratic candidate in the 2015 presidential election, it is not necessary to rewrite the law but to rewrite the justice system.
In a (crooked) mirror
An interesting experience for me is looking at Ukraine’s attempts to adapt the legal and judicial system to the requirements of Europe. At the same time, undertaking Ukrainian activities, I look at Polish reforms as if in a mirror (sometimes crooked).
I have the impression that this is a kind of repetition of the challenges faced by Poland, the Czech Republic, Slovakia and Hungary in the early 1990s. It’s an absolutely difficult journey. And their car remembers much more: times of regulated gasoline and shortages of spare parts.
Every car has a driver. The reformers’ cars, to make it easier for them, are usually driven by a few drivers. From the passenger seat, rear seat and even from outside of the vehicle.
The situation in Ukraine is still unique because there are actually many more cars: the Ministry of Justice, the National Council of the Judiciary, the High Council of Judges, the State Judicial Administration, to name a few. Since there are several vehicles, you need to think carefully about which one to choose for your trip.
Most of the male members of the Ukrainian National Council of Judiciary have military service behind them. Some of them in the one and only Red Army. One happened to sail on a submarine in the Pacific Ocean. This was in the mid-eighties when the freedom of Ukraine was a dream. For a long time, the reform of the justice system in Ukraine has been ongoing and it is not always moving in the right direction. The ship is slightly drifting.
A simple and clear idea
The idea of the European Union was simple and clear. The stabilisation of the legal system of Ukraine would allow attracting investors, facilitate business activities, ensure both the market and select more contractors. Not only EU experts but also Americans and Canadians have been working on this in Ukraine for the last couple of years. Work is not easy. Changing regulations is one thing and changing mentality is another, much more difficult task.
The paper on which the laws are written is patient and will bear much. Changing consciousness is a task for generations, especially as negative examples from the summits of the third power remain in memory.
One of them was a former general prosecutor. In 2014, the media managed to enter the residence of the Prosecutor General of Ukraine, Viktor Pshonka, located in the village near Kyiv. A white piano, a Faberge egg, a white-marble pool or a portrait of a lawyer reminiscent of Julius Caesar are just some of the furnishings of the mansion. This is how a civil servant lived. “Servant of the people”. Once again, the people felt cheated.
From what I gather, the confidence level in the Ukrainian justice system is currently six per cent (!). It seemed to me that it was still the “Pshonka effect” and a series of similar, mainly corrupt, events. However, this is a much wider phenomenon.
Several hundred judges are still not appointed and, in some courts, less than half of the staff adjudicates. The selection committee, which was to verify the judges, stopped working at some point. Court hearings in Kyiv take place every five minutes, and overloaded judges have hearings every day of the week. Court employees, who earn far too little, are prone to corruption. The promotion system is not transparent, and its criteria are unknown. Almost every judge has disciplinary action against him. The ordinary citizen is simply not able to believe in such justice.
A certain privilege
There is a certain category of internet memes that juxtaposes two seemingly distant phenomena and gives them the slogan “too similar to sleep peacefully”. Including the images of the judiciary of Poland and Ukraine in this scheme would, however, be too easy to sleep peacefully as well as too simplistic
Rather, Ukraine has the privilege of being the youngest sibling, thanks to which a lot of clothes and toys of older brothers and sisters can be tried on and picked for the best fit.
Computer technology is already established in the Ukrainian courts. Cases have been randomly assigned to judges for several years. Parties and proxies get digital access to court decisions. Work is underway on the visual identification (signage) of the judiciary and the use of simple language in judicial communication. The press service of the judiciary is not idle. International organisations are also a great source of support.
In Ukraine, there is an efficient system of free legal assistance, with a 24-hour (!) phone line to a lawyer in the event of being arrested by law enforcement agencies. Lots of brochures and manuals for citizens are issued.
The threat to the freshly rebuild rule of law and the success of reforms is, as always, the human factor. Despite many bodies and institutions that formally guard the justice system (the above-mentioned ‘cars’), there is currently no self-government association of Ukrainian judges, modelled on Polish “Iustitia” or “Themis”.
Such judges’ associations are a very important, bottom-up voice of the important stakeholder, as well as a tool of support in a crisis. It is worth recalling that the Association of Polish Judges “Iustitia” associates over 35 per cent of Polish judges, which gives it a strong mandate to represent the community.
Develop their own model
The previously mentioned human factor needs constant support. One needs to regularly review oneself in the mirror to be able to correct any beauty defects.
Overloaded with work, Ukrainian judges still have not managed to develop their own model of independence and impartiality. They are still not aware that they are the ones who create justice instead of various bodies with competing powers.
The sooner they understand this, the sooner it will be possible to speak about the success of what is the reform of the systemic bloodstream of a country of great importance for Europe.