External observation

The involvement of public activists and some" experts "in the work of the judiciary is nothing more than the establishment of external control over it, and eliminates the system of checks and balances" - Pavel Grechkovsky, member of the High Council of Justice.

Adopted on October 16 of this year The Law of Ukraine "On Amending the Law of Ukraine" On the Judicial System and the Status of Judges "and some laws of Ukraine regarding the activities of the judiciary" (bill No. 1008) is presented to the general public as an act that strengthens the role of the High Council of Justice in the judiciary. However, in the HCJ itself, the attitude to the bill No. 1008 is ambiguous. What might turn out the enactment of this legislative act for HCJ members and what risks may arise when attracting foreign experts, Pavel Grechkovsky, lawyer, HCJ member, told the editorial office.

- Pavel Nikolayevich, what are the risks for the HCJ that the bill No. 1008 bears and whydo you and your colleagues not like it, because the authors promise that the role of the Council in the judiciary will strengthen?

- There is nothing really reinforcing the role of HCJ in the project. Moreover, the HCJ provided an advisory opinion to Bill No. 1008 as early as September 5, prior to its adoption in the first reading, and outlined ten points for comments indicating risks. This conclusion states that the current problems in the judicial system concern interference with the activities of judges, the creation of new courts, a shortage of personnel and the completion of the qualification assessment of judges. Which of these tasks does bill No. 1008 solve? The most ambitious task of the bill is to restart the Supreme Court and the Higher Qualification Commission of Judges of Ukraine. It is proposed to change the formation of the HQCJ. The commission becomes a kind of subordinate body of the HCJ, in which the right to make all decisions regarding judicial administration is concentrated. Conditionally, this can be attributed to the strengthening of the status of HCJ. At the same time, we have to go through procedures and make decisions that have nothing to do with strengthening judicial management. And if we evaluate them from the point of view of the Basic Law, and the GSP is a constitutional body, then we will see that they are trying to change the structure of the GSP in an unconstitutional way. Here I see a legal conflict created by the adoption of Bill No. 1008 in the form in which it was lobbied.

For now, let’s even miss the moment that the members of the HCJ will have to undergo a new test for integrity. Let me remind you that each member of the HCJ, even in the status of a candidate, underwent a special background check, without successfully passing it no one could be appointed or elected. This check was not carried out by judges or judicial authorities. Now the inspection body will be a certain commission with the participation of foreign experts, and the High Council of Justice should form its composition. Such powers of the HCJ are not provided for by the Constitution of Ukraine, and according to Article 19 of the Basic Law, authorities and their officials are obliged to act only within the powers and in the manner provided for by the Constitution and laws of Ukraine. It turns out that without forming a commission, the HCJ will break the law, and having formed it will go beyond the constitutional powers. Intentionally or not, but the legislator is forcing us to violate. Moreover, any of the decisions will receive appropriate publicity in the media, and the HCJ will still be presented in a bad light.

- How do you feel about the idea of attracting international experts to verify the integrity of HCJ members?

- Let’s first decide who the expert is, an expert in what area is needed to check integrity and who confirms the status of an expert. It seems to me that this concept has lost its original meaning, because it is semantically related to the word "experienced." It seems that the expert should be a person who has appropriate education, successful experience in a particular industry, professional achievements, and reputation.

There are certain qualification requirements, for example, for an expert involved in the consideration of a dispute in international arbitration or in our courts. But in the context of the judiciary, some "experts on judicial reform" appeared, most of whom did not work in court for a day, did not practice as lawyers, did not work in any government bodies, and have a very naive idea of how the state works. Most of their activities are comments on TV channels, speeches on forums and other public events (in the process of lobbying Bill No. 1008, such activities were blamed on judges of the Supreme Court, although why can't they be experts in judicial reform and speak publicly?), Facebook posts. The same faces flash, and no one asks a logical question: and what professional experience and knowledge are behind these "judicial reform persons"? This is just a conglomerate of several public organizations that smoothly flow into each other with the same staff, with partial support from the same donors. Do I believe in civil society? Yes. But I believe that many years of paid activity in such organizations is not a civic activity or a representation of the opinion of the whole Ukrainian society. These are different things.

Similarly, with foreign experts. Bill No. 1008 does not provide answers to questions about qualifications, citizenship, status of international experts appointed to the Commission on Integrity and Ethics (Ethics Commission). How independent are they if they are proposed by any particular public organization? What interests of the state do they defend in their activities, if their financial support comes from the budget of a particular country? I do not want to question the authority of any of those people who will be included in the "expert council" in advance, but I think that it was necessary to find answers to these questions before adopting the law in such a wording. It should be noted that most of the position documents of the Council of Europe, the embassies of the European Union and Canada critically evaluated the provisions of Bill No. 1008 on these international experts.

- Although the law has not yet been signed and the verification process has not begun, some public organizations already call the members of the HCJ, and you are among these people. Comment on your complaints: re-election, accusation of a crime, punishment of Judge Larisa Golnik?

- Everything that is charged to me as dishonesty has a legal assessment. In June, the Constitutional Court of Ukraine (CCU) put an end to the question of allegedly re-appointment to the HCJ. CCU refused to open production on the constitutional proposal of the people's deputies of Ukraine. This decision was made by the entire composition of the Constitutional Court and officially made public. Moreover, two deputies who were the first to submit false allegations to the public about the "unconstitutional re-election" of Grechkovsky should, by court order, refute their speeches from the rostrum of the parliament. They lost in the Pechersk district court of Kiev in the case on the protection of honor and dignity.

Another argument is the case of Judge Larisa Golnik, in which I was a rapporteur, that is, according to the rules of the HCJ, I did not vote for the decision and did not sign it. But, speaking of my role, the "activists" are silent about this or they themselves do not understand that the rapporteur on a disciplinary issue does not take part in the decision of either the disciplinary chamber or the HCJ. Moreover, in the decision, the Grand Chamber of the Armed Forces confirmed that violations had taken place, however, the sentence was canceled. Thus, the story with Golnik consists of several legal collegial decisions, and not Grechkovsky "author" of the fate of this judge.

And finally - a criminal proceeding opened against me, according to which on October 21 of this year the acquittal entered into force. If the so-called experts needed a decision by the appellate court to stop calling me a criminal case in each case, then please - there is already a solution.

- It turns out that through verification they are trying to revise the composition of the HCJ. Who will they get rid of?

- The Reform seems to be new, but the approach is old. And it consists of removing those who do not have leverage, or those who are not pleasing for other reasons. This applies not only to members of the HCJ, but also to all representatives of the judicial system. The subjective factor is not only not minimized - it is practically legalized as a component of the decisions of the Ethics Commission. I do not exclude that not everyone will want to go through such a dubious check and resign. Such examples were brought up during the reboot of the High Council of Justice in 2014, and as a result of such an experiment there was no quorum. Now we again run the risk of paralyzing the judiciary in the course of ill-conceived attempts to reform something again. I will not comment on the obvious for a long time - Bill No. 1008 poses serious risks to the independence of judges, members of the HCJ, bodies of judicial administration and destroys barriers from interference in their activities, set by applicable law. The legislator does not assume all responsibility, but involves the "professional community". I cannot explain with professional approaches that in fact two "experts" get the right to annul the decision of 50 thousand lawyers or 5 thousand judges, who are probably more versed in matters of justice.

But, I repeat: this is nothing more than control of political entities over the judiciary not provided for by the Constitution of Ukraine. An attempt to influence, at risk, to deprive of posts, to dictate decisions, and in case of disagreement, may completely block the work. After all, the "unscrupulous" members of the HCJ can be replaced only with the permission of the Ethics Commission, and the organization of congresses without such an audit can take three to four months. So it’s quite possible that we will lose the HCJ quorum for several months.

- In your opinion, are lawyers next? After all, now the question is about the abolition of the advocate monopoly, and maybe we will soon see the draft new law on advocacy?

- Sure, we'll see. But lawyers are used to fighting. Their whole professional life is a confrontation, and given the constant opposition to the state accusation of criminal proceedings, lawyers are always in opposition to the authorities.

As for the "abolition of the monopoly", I am ready to assure that the lawyers will not suffer professionally. They will have customers, as before. But those who really lose from the abolition of the monopoly are the courts (which are used to the participation of professionals in three years, which significantly reduces the production time) and citizens, both in terms of real competition in the process, if the opponent is represented by a lawyer, and in terms of the right to legal assistance of good quality. No lawyer without the status of a lawyer can guarantee the client complete confidentiality, does not have a tool equal in effectiveness to a lawyer's request, and will not be liable in case of damage or the provision of low-quality services.

But even this does not bother me as a lawyer, but instead of fulfilling the provisions of the Constitution of Ukraine, without even trying to live in this legal field, the norm is being changed. And the authorities showed not so much attitude as fear of lawyers, because it was Bill No. 1013 (draft Law "On Amending the Constitution of Ukraine (regarding the abolition of the lawyer monopoly)" - approx. Ed.) That was one of the first to get into parliament and was examined in HCJ.

Interviewed by Irina GONCHAR, "Legal Practice "