Strength in association
"In the context of investment attractiveness of Ukraine, the lack of a consolidated position within the judicial system is still the main problem", — Anna Ogrenchuk, Managing Partner at LCF, claims
— The changes to the Constitution of Ukraine in terms of justice and the new implementing legislation came into force on September 30. In your opinion, is it justified that the employment issue was put at the top of the judicial reform campaign?
— There was a lot criticism leveled at the courts, and not always constructive and reasonable, and sometimes even populist. At the same time, it should be understood that the court is an institution, and justice is administered directly by judges. And if society has complaints, they should be addressed to the specific judge. It is necessary to estimate the operation of courts through the prism of work of each judge; therefore, the main emphasis in the course of reform was put on the identity of the judge.
From the perspective of a member of the Judicial Reform Council, I can say that one of the priorities of the reform was to renew the approaches to staffing the judicial system. The President and Parliament lose the right to exert influence on the process of appointment and dismissal of judges, and now these and other personnel and disciplinary functions are a prerogative of the new body — the Supreme Council of Justice. The status and functionality of this body talk about its political apathy, which gives hope for autonomy of the procedure for forming the judiciary in the future.
It should be noted that all authorities, beginning with the Supreme Court, are provided with the possibility of injecting lawyers and academic lawyers into judicial ranks, who have the relevant work experience in law. But there are certain risks. For example, will the lawyers who don't have work experience as a judge, be able to administer justice professionally and qualitatively? Renewal of the judicial structure is not an end in itself of the reform, it is equally important to retain qualified, professional and experienced personnel in courts. In this case, much depends upon the algorithm of personnel selection, whose task is to select lawyers worthy of holding the high rank of a judge. For this purpose, the High Qualifications Commission of Judges (HQCJ) has already developed a questionnaire and examination program to evaluate candidates for judicial appointments. The selection procedure will be open and transparent to the maximum, especially since HQCJ defers to the opinion of the professional community and uses the principle of publicity in its work.
— Much has been said about what changes society and the professional legal environment expect from judicial reform. And what hopes do representatives of business, including foreign investors, place on it?
— Business expects effective legal proceedings. The concept of efficiency includes three key criteria: efficiency of consideration of the case, presence of justice and predictability of judgments. Having conversed with foreign investors, we have concluded: they do not care how many links or jurisdictions the judicial system has. The main thing is how effectively it operates: whether it is possible to foresee legal consequences of actions and whether it is possible to obtain a final court decision in the shortest possible time. To ensure all the above-mentioned, first and foremost it is necessary to increase funding of the judicial system. Quality justice cannot be cheap. Therefore, the fair remuneration of judges and the administration, as well as proper protection of the courts are still among the key issues. We hope that the minimum sums for wages, as declared in the Law of Ukraine "On the Judicial System and Status of Judges", will be observed in full in future.
However, in the context of the investment attractiveness of Ukraine, the lack of a consolidated position within the judicial system, as well as disbalance of judgments by different authorities and jurisdictions, is still the main problem.
— And is the mechanism to solve the problem of unpredictability of judgments laid down in the adopted laws?
— The mechanism for changes is partially stated in the Law of Ukraine "On the Judicial System and the Status of Judges". In particular, the Grand Chamber of the Supreme Court is common for all judicial jurisdictions, and therefore, practical application of rules of law will be also common for all courts irrespective of their jurisdictions. Certainly, we expect that such changes will ensure the unity of judicial practice; however, the experience gained by the lawyers of our firm makes it possible to speak about insufficient efficiency of only procedural mechanisms. The readiness to develop a common grounded position and to follow it in the future is what we expect from the Supreme Court. For our part, we openly express these expectations and hope to be heard. After all, formation of a positive image of judicial system and, thus, improvement of Ukrainian positions in international ratings will, in many respects, depend on the activity of the Supreme Court.
We hear more and more often complaints regarding the need for the clearest separation of the jurisdiction of various categories of disputes. The course change of jurisdiction of disputes with state registrars, the Deposit Insurance Fund and officers (bailiffs) of the State Enforcement System was the latest shock for lawyers. This is really a sore subject, which, along with the existing problem of fully irrecoverable court costs on legal aid, continues to concern the legal community and business.
— Can the judicial branch be independent of other branches if there are disagreements in the judicial system?
— The presence of a consolidated position within the judicial system depends only on judges. Judicial power should not identify itself with other branches of government. On the contrary, we expect that it will adopt the status of a separate, independent branch in the near future, and will begin to use tools that other branches have: these are both communication policy and strong management. Strategic planning, forecasting, proper personnel policy, monitoring of the level of satisfaction of process participants with judicial services, PR promotion, dialogue with society and business – all of these are important in judicial administration as well as in business management.
— Is business ready for such dialogue?
— Both business and the professional community are ready for this. And recent evidence of this was the consolidated position of representatives of the legal market as to providing courts with proper protection and guaranteeing the independence of legal proceedings.
The events that happened in the courts of Odesa and Kharkiv are inadmissible, since unprotected legal proceedings primarily affect our clients. However, there is not only direct, but also indirect damage, as both the reputation of the judicial system, and image of the state in general suffers as a result.
— Your forecast: when will the results of judicial reform actually be tangible in practice?
— Considering the comprehensive nature and scale of the innovations offered, as well as the fact that changes are provided at the very deepest level, the constitutional level, we can say that there will be no instantaneous effect from judicial reform. In addition, legislators have provided a step-by-step algorithm for the implementation of certain changes, such as for the advocatory monopoly. There should be a certain transition period, at least several years, before the results of judicial reform will be fully tangible in practice.