Ukrainian Judges in search of an elephant

The judicial corporation does not recognize its own problems, and that is why we have been in Christopher Nolan’s film “Memento” for 30 years, only instead of the main character in the recursion, we have the judicial reform.

Ivan Mishchenko (wrote the entire text more than once),
Robert Broekhuijsen (provided the idea of the elephant),
Dima Gadomsky edited and made pictures.

Last week, the Selection Commission for selecting new members of the High Qualifications Commission of Judges of Ukraine (HQCJ), of which Robert and I are members, formed and submitted to the High Council of Judges (HCJ) a list of 32 candidates, from which the HCJ must now select 16 members of the HQCJ. There are only ten judges on this list, although the HCJ believes that there should have been 16 of them.

For many years, the Spanish writer Arturo Pérez-Reverte has been publishing in El Pais, where he writes about and criticizes everything — the quality of street lighting, corruption in the government, Spanish history, his favorite cafes. Later on, these articles were published in separate books with eloquent names Con ánimo de ofender [With intent to offend] and No me cogeréis vivo [You won’t take me alive]. What these columns had in common was that almost every one of them provoked a heated debate. People were often offended by what was written but involuntarily began to discuss the figure of the provocateur writer.

Our “list of 32” was not intended to be a provocation, but it had the same effect on the sidelines, on the pages of legal publications, and in anonymous Telegram channels.

We are conducting a fairly healthy dialogue with HCJ at the moment. With this text, we want to raise a more metaphysical context: why, in our opinion, there were not at least 16 judges worthy to work in the Supreme Court of Justice.

The first reason: mathematical (few judges applied for the competition)

When selecting candidates for the HQCJ, our commission used the principle of positive selection, not negative, which was previously used in similar competitions in Ukraine. In other words, instead of weeding out the worst, we chose the best.

The first thing we noticed already at the stage of collecting questionnaires is that there are half as many judges who want to change the judicial system as “non-judges”: we received 107 questionnaires from judges and 194 from non-judges. Later, these two categories behaved almost identically.

At the first stage of the competition, we selected those whom we wanted to invite for an interview based on the results of the analysis of written materials: these are 25 out of 107 judges and 39 out of 194 non-judges. If we translate this into percentages, according to our selection criteria, 23% of the pool of judges and 20% of the pool of non-judges who received an invitation to interview are potentially great candidates who had to prove in the second stage that they are really the best.

For those who want to replicate this data on the entire judiciary, I immediately warn you against it: our sample is too small to draw any reliable statistical conclusions.

But our task was not just to identify good players who play consistently and well; we had to identify those who are ready to play for the national team. Therefore, in the second stage, we had to choose 32 extraordinary people from these 64 people. As we wrote above, we selected 10 out of 25 judges and 22 out of 39 non-judges; it is 40% and 41%, respectively.

We may make two conclusions from this. First: Judges and non-judges in the “list of 32” showed almost identical results on competence and integrity. The second: the fact that we selected only 10 judges was influenced, among other things, by the number of questionnaires that we received.

And now, it is logical to move on to our thoughts about the low desire of judges to participate in the HQCJ in particular and the desire to change the system in general.

The second reason: philosophical (elephant in the room)

During the selection, we had a lot of time and opportunities to think about an obvious question — why has the judicial reform continued for 30 years and has not been converted into trust? Why does every new president start with reforming the judicial system, and the role of an active society in this process grows every time?

Our answer is this: because the judicial system has been reformed from the outside for all these long years. The system itself “agrees” to these reforms only in the hope that they will one day stop.

One of the four universal plots of Jorge Luis Borges is “The Siege of the City” which is precisely about the Ukrainian judicial system. Few insiders recognize the existence of systemic and worldview problems, and therefore any attempts at reform are met with sharp rejection by the judicial corporation. Everything is fine with us, say the judges, but it’s all bad journalists, bad politicians, and bad activists. All we need to do is better communicate with them and better explain how well we’re doing.

A paradoxical situation arises when judges participating in reforms (this is a vivid example) do not see problems in the judicial system itself. Why, then, is there the reform of the HQCJ? Why, then this Selection Commission with foreigners, complicated wartime competitions, G7 activists, and ambassadors? Just to “overcome the personnel shortage in the judicial system?” (inaccurate and out-of-context quote from interviews).

The judicial system is so used to the elephant in the room that it has learned to ignore it. But society sees the elephant, constantly runs into it, and, as a result, constantly demands new and new reforms from the authorities. And that’s why we are in the recursion of reform — the society does not get the desired result.

This paradox is explained simply: the judicial system does not recognize the existence of systemic problems in the very system. And if you do not recognize something, it does not exist for you — which means that it is a priori impossible to change it.

During the interviews, we asked all the judges what they do see as the problem. The generalized answer: “there are no particular problems, it’s just that everyone criticizes us, so it is necessary to just prohibit criticizing the courts.”

Most of the judicial corporation does not see any problems within itself and is offended by the fact that our commission chose only 10 candidates out of 107. As fundamentally, there is no problem in understanding the judicial corporation because judges somehow work and somehow make millions of decisions. There are certain manifestations of corruption or unscrupulous behavior recorded by NABU — but where none exist? Collaborationism in a couple of cases — but where none exist? Are the solutions unclearly written? Well, it is so convenient for us to write in such a way, there are many cases, and the lawyers will sort it out. There are some controversial decisions — every judge has a dozen of them a month. Show us the elephant!

The third reason: worldview (career judges vs. “judges by announcement”)

The first success of the Ukrainian recursive judicial reform was the competition for the Supreme Court (as my grandfather used to say, “Every wader praises its swamp” [Every cook praises his own broth]. Then the higher court received about 25% of new people from outside the system, whose task was to see the elephant, point at it with a finger, and try to finally take it out into the fresh air. But very quickly, we heard disparaging words like “they don’t have experience”, “they don’t understand anything”, “they recruited based on advertisements”. “Delete your Facebooks” — we heard from judges who continue to trust information from anonymous Telegram channels and sometimes even launch them by themselves.

It became clear quite quickly that experience in the form of the number of years in the status of a judge is almost the only virtue on which the outlook of many career judges is built. And almost all the positive achievements of the reformed Supreme Court (without Ukraine) belong to judges who were recruited just “by announcement”: Olena Kibenko, Vasyl Krat, Kostyantyn Pilkov, Arkady Bushchenko, Dmytro Gudyma, and many others. Of course, there are some experienced judges who share the same philosophy, which is why we managed to achieve, for example, writing court decisions in a new format, fundamentally new communications, and so on. That is why the Supreme Court has existed for these 5 years without public demand for reform (the unsuccessful attempt in 2019 failed precisely because society did not support the “fresh” idea of “reducing” the number of Supreme Court judges).

But the High Council of Justice at that time could not be filled with people who would have seen an elephant. Many judges and court functionaries with expensive watches called the reform of the HCJ unconstitutional and “an attack on judicial independence.”

That is why the HCJ was never able to suspend the judges of the District Administrative Court of Kyiv from the administration of justice after “Wednesday, and there are no lawsuits” [the famous quote of judge Vovk regarding continuous lawsuits to HQCj]. Again, the Supreme Court was the only one to speak publicly about the boss, who was always being offered to stir things up at the session of the Plenum.

The story continues. Recently, in the Commercial Court of Cassation, where such “judges by announcement” are the most, the positional confrontation between career judges and new judges ended with the dismissal of the chairman Bohdan Lviv (the judges dismissed the chairman last year because he had a Russian passport, we wrote about it here — editor’s note).

Unpleasant and bitter, but true (instead of a conclusion you can draw on your own)

We hope that the HCJ, like our Commission, will see the elephant in the fact that half as many judges as non-judges applied for the competition to the HQCJ. The fact that judges do not see fundamental problems in the judiciary. That judges who have actively criticized the reform see no problem in taking part in it as a candidate (it’s like a GreenPeace activist submitting a resume to Royal Dutch Shell). The problem with judges, unfortunately, is often that they don’t understand what the problem is.

And here we are talking not only about the appointment of 16 members of the HQCJ, which we, like the G7 ambassadors, are looking forward to. I would like to check the box opposite “judicial reform — completed”. But if HCJ really looks at the problem through our eyes and impartially analyzes the results of the competition, it has a unique chance to fundamentally stop the endless process of reforms by leading them. “Yes, dear society, we know that we have problems, and we are solving them on our own” — that’s what everyone would like to hear from the constitutional body.

We know that the judges do not like the result of the competition. I know why they don’t like it, because “the Commission offended them.” But do you, colleagues, like all these endless reforms? Do you like the constant insults in our direction and the way taxi drivers expertly talk about the judicial system? Do you like it when any official, in any interview, once again “rides” the courts and says how bad is in there (while he is a “reformer hero” who will manage everything)? Or do you like the traditional second-to-last place in trust ratings? I know that you don’t. But to get rid of it, you need to recognize the problem and solve it yourself. You have to get better.

I will say from my own experience — it is simply incredibly pleasant to hear the words “Your Honor” spoken with respect. But it happened in my life only when I went to war. I want our profession to be respected in itself, not as it is now. Try this feeling; it is very nice.

This commission told the bitter truth. To recognize it means to make a fundamental decision. It is complicated but adult. And in the existing conditions — the only thing possible. Any other option is the samsara wheel of reform, held in the hands of the god of death Yama (to get out of the samsara wheel is to gain immortality, but more on that I will tell another time).