Oleksandr Drozdov: “The substantial understanding of Сonventional guarantees by judges and lawyers must replace the mode of just referring to the decisions of ECHR”

-    On the Congress of Attorneys you will nominate yourself for being a member of the High Qualifications Commission of Judges from the lawyer’s community. What is interesting for you in this job, since the commission has no disciplinary functions and is focused mainly on creating the judiciary?

-    Sure, after the judiciary reform High Qualifications Commission of Judges has lost its disciplinary functions. Today Commission is an organ that is responsible for problems connected with the formulation of the judiciary and judge’s career.

I’m sure that considering these questions, I will be able to realize myself because I have been working for a long time in scientific, legal and educational areas. I have the organizational experience, I know the practice of the European Court on Human Rights, and can rely on certain achievements, including those gained during the work in the Higher Qualification and Disciplinary Bar Commission of Ukraine.

-    Let’s consider the question more practically. Relying on your experience, what is exactly missed in the judge’s qualification and osculant processes?

-    In my opinion, in Ukrainian law enforcement practice, the form often predominates over the substance. When the preference is given not to the understanding of the essence of social relations but to formal compliance with the requirements of the law, which, with or without the intention, distorting the norm itself.

It’s become popular among the lawyers to refer to the European Convention on Human Rights and practice of ECHR in the procedural documents. It’s obvious that the law obliged judges to do so, introducing the new source of law actually. And lawyers who form the legal position of their clients whisper in the ear of Themis some of the European precedents. But where is the guarantee that the legal conclusion based on the decision of the European Court coincides with the original decision?

- The question about the availability of adequate translation of decisions arises here. Cases against Ukraine at least appear in an official translation, but how to deal with the rest of the cases?

- As part of the public project “ECHR: Ukrainian Aspect”, we are trying to eliminate this information vacuum: we print texts of last decisions, generalizations, analytical reviews. Permanent seminars in the High School of Advocacy on the practice of the ECHR can be regarded as an educational work in this area. Of course, this is not enough. A lawyer who wants to be a judge must have a clear understanding of the content of each convention and the main court decisions in Strasbourg. After received the mantle, the judge is obliged to monitor the development of legal concepts, to draw attention to the content of the decisions of other European institutions.

Why is it important? We recently provided a translation of the resolution of the Parliamentary Assembly of the Council of Europe No. 245 (2018) concerning the practice of concluding an agreement on the admission of the quilt. The resolution emphasized that thoughtless copying and use of Western institutions can have negative consequences. The same is about the ECHR decisions. The substantial understanding of Сonventional guarantees by judges and lawyers must replace the mode of just referring to the decisions of ECHR. And here the role of the High Qualifications Commission of Judges (at the beginning of the professional way) and the National School of Judges for the maintenance and improvement of the qualification level of the servants of Themis is decisive.

- Speaking about the mode, we have the mode for all European... How to use their progressive institutions without a negative impact on the national legal system, in particular, the judicial system?

- High Qualifications Commission of Judges, according to law, has the authority to participate in international co-operation, in particular, to establish links with foreign institutions and organizations. These powers can and must be implemented in order to comply with Article 14 of the Association Agreement with the EU.

I remind you: within the framework of cooperation in the field of justice, Ukraine should pay attention to the establishment of the rule of law, which envisages strengthening the judiciary, increasing its effectiveness, guaranteeing its independence and impartiality, combating corruption. And the main principle of cooperation is respect for human rights and fundamental freedoms in this area. That is why the convention and ECHR practice should become the guideline that will ensure a fair trial in Ukraine.

-It is clear. However, this is the experience of the European Court. What positive can you use from your experience in the Higher Qualification and Disciplinary Bar Commission of Ukraine in your future job in the High Qualifications Commission of Judges? 

- During my term of office as the head of the Commission it became possible to arrange periodic generalizations of disciplinary practice, to initiate systematic measures for the improvement of the qualifications of lawyers. Also, the scientific potential of the commission has been raised in recent years. I think that the High Qualifications Commission of Judges should also improve the analytical and educational component of its activities.

- Two more of your colleagues have proposed their candidacy for the position of member of the High Qualifications Commission of Judges. Almost the same amount in proportion to one vacancy was willing to join the High Council of Justice. Why are such posts unpopular in the lawyer's community?

- Taking into account the total number of lawyers (about 45 thousand are registered as lawyers), 2-3 candidates for such a post – this is really a bit. However, it should be understood that, in addition to requirements relating to the professional level of the applicant, there are other requirements, determined by the legislator, and follows from the specifics of the profession.

The first category includes, for example, the absolute transparency of the acquisition of wealth, the completion of declarations, the justification of income, etc. Not every lawyer wants to showr this information to the public.

The second category – the immense responsibility imposed on the lawyer by the membership in the qualification-disciplinary bodies, a tight schedule of work, attention of the public, attracted to them, etc. These factors make many professionals decide to refuse to take part in the competition.

- Why didn’t you nominate yourself for being a member of the High Council of Justice?

- I am sure that the issue of disciplinary liability of judges does not differ significantly by its substance and nature from the issues of disciplinary liability of lawyers. I do not think that after working as the head of the Higher Qualification and Disciplinary Bar Commission of Ukraine, I could have mastered something fundamentally new as a member of the High Council of Justice. However, as a teacher who is examining students all the time, the work in the High Qualifications Commission of Judges is much more interesting. Therefore, this choice was well-grounded.

- If colleagues support your candidacy, you will enter the commission at the height of competitions and qualification assessments. And this is a huge amount of work. Are you ready for it, since the work of Higher Qualification and Disciplinary Bar Commission of Ukraine is not so tense now?

- Since the beginning of my term of office as head of the Higher Qualification and Disciplinary Bar Commission of Ukraine, my colleagues and I have been constantly discussing various issues related to the improvement of the review procedure. I have always been a supporter of the fact that the Higher Qualification and Disciplinary Bar Commission of Ukraine is a quasi-judicial body, and therefore its activities should be subject to the Conventions, in particular, Article 6, which refers to the right to a fair hearing within a reasonable time. We have succeeded in persuading the judicial authorities in it. Moreover, we reflected this in the Higher Qualification and Disciplinary Bar Commission of Ukraine regulations.

By the way, we discussed the appeal to the Council of Advocates of Ukraine at one of the last meetings. We propose the Council of Advocates of Ukraine to consolidate the possibility of suspending the decision of the Qualification and Disciplinary Bar Commission of the regions, on the basis of which disciplinary sanctions were applied in the form of the termination of the right to conduct advocacy practice. We hope for the understanding of the Council of Advocates of Ukraine, because in our opinion such a decision will be a step towards lawyers. If the lawyer is convinced that the regional Qualification and Disciplinary Bar Commission deprived him of the certificate or stopped his activity without justification, he will be able to work until he applies to the Higher Qualification and Disciplinary Bar Commission of Ukraine with the corresponding complaint and receive it’s final decision.

The position of the head of the Higher Qualification and Disciplinary Bar Commission of Ukraine is free of charge. I think it is correct, since the work itself is extremely honorable, and the election is a manifestation of high trust of colleagues. However, it is necessary to provide yourself with the outcome, which means performing paid work. I am engaged in scientific, practical, and teaching activities. So, if the Congress makes a decision, I do not think that the schedule of the High Qualifications Commission of Judges member will be different from my schedule today.

- And what about scientific work?

-  I will not stop any scientific or teaching activities. According to the current legislation, the post of the member of the High Qualifications Commission of Judges allows it. Science has always helped me to understand more deeply legal phenomena, to investigate the legal facts involved. Talking about the activities of the Higher Qualification and Disciplinary Bar Commission of Ukraine, science has helped me with the consideration of qualifications or disciplinary matters. I hope that I will complete my doctoral dissertation.

- Recently, advocate's self-government bodies faced the pressure of civic organizations. It's no secret that activists are equally pressured on the High Qualifications Commission of Judges. In addition, the commissions have to work with representatives of civic organizations and listen to their opinions. Are you ready for cooperation with the public and to the possible pressure that some of its representatives will do in one way or another?

- The head of any state or non-state body should be prepared to dissatisfy the persons whose interests are affect by his activities. It makes a person stronger and you can get used to it. In addition, I practice advocacy. In accordance with Article 135 of the Constitution, the profession of advocate is independent, sooner or later some individuals will have the desire to restrict this independence. We see that the lawyers are subjected to the pressure now. Representatives of professional self-government, Ukrainian and foreign experts have repeatedly discussed this issue.

Taking into account the fact that the same article of the Constitution guarantees the independence of the judiciary as well and we live in one society, I do not think that the affairs in judging are radically different from the situation in the advocacy.

As for cooperation with public organizations within the framework set by the legislation, I do not see the complexities.

- Is the formation of the advocacy different from the formation of a judge corps?

- I think that I know quite well the legal and practical component of the formation of the lawyer community. But I can compare it with the formation of the judiciary only from the legal side.

The mechanisms that make it possible to select a judge are prescribed by law and are understandable. Comparing them with the mechanisms that enable a lawyer to get a certificate of the right to practice lawyers, I can note the following. The legislator imposes stricter requirements on candidates for a judge than those who want to obtain a lawyer's certificate. This is understandable, since the judge carries out important government functions, in connection with which judging is one of the branches of power.

The formation of the lawyer community is simpler. However, the mechanism for access to the profession is reviewed by the working group. It work will help to improve the quality of the selection of individuals who will fill the lawyer's bench.

The practical components of both selections can be compared only in case of the corresponding decision of the Congress and the mastering of new responsibilities.

- How do you assess the psychological testing of candidates for a judge? Is it really necessary for a qualitative filling of judges’ corps?

- I am sure that such testing should be. After all, a judge's decision is determined by a number of psychological factors that should not affect the validity and legitimacy of the verdict. At the same time, testing should be transparent and conducted in accordance with well-defined, clear criteria so that the person who passes it can understand the assessment and challenge the result if necessary.

- What will you say about the structure of the qualification bodies of the judiciary and the advocacy? The last mentioned is split into regional Qualification and Disciplinary Bar Commission, which helps to more quickly consider issues related to the advocate’s career. For several years, experts have spoken about the possibility of introducing the same system for the qualifying judicial authorities. Is there a need for regional judiciary qualifications?

- I am the opponent of the draft law No.9055, in particular, in the part concerning the creation of a system of qualification-disciplinary advocacy bodies. I think that the mechanism of the formation of the law office is not flawless. But it provides access to the profession in the regions, so it should be as close as possible to them.

As for the judiciary, I believe that this system should be centralized, with a division of qualifying and disciplinary functions and secured from external influence.

- If you are elected to the High Qualifications Commission of Judges, are you planning to participate in methodological work, cooperate with the National School of Judges, etc.?

- I have such a wish. Moreover, in the case of the corresponding decision of the Congress, I do not plan to leave teaching at the Higher School of Advocacy. Perhaps I will not be able to hold the post of first vice-rector, but I will hold seminars and other educational activities. I will also cooperate with the National Association of Advocates of Ukraine, take part in the development of regulatory documents, etc. Also, if the National School of Judges considers it necessary, I am ready to cooperate, share knowledge, including in the field of ECHR practice and the criminal process that I have been teaching for many years.

I think my experience will be useful. At least this has already been recognized by the Supreme Court, choosing me as a scientific advisory board.

The article by Alexander Drozdov was published on the "Law and Business" website.