Interview 2022-09-29T04:04:00+03:00
Ukrainian news
Supreme Court's Ex-Head Boiko: Currently Created Conditions Aimed At Making Citizens Unable To Litigate

Supreme Court's Ex-Head Boiko: Currently Created Conditions Aimed At Making Citizens Unable To Litigate


Early in July, the GfK Ukraine research company presented results of a poll under which a total of 46% of respondents claimed that the situation in the judiciary to have worsened since 2014. Besides, 61% of pollees said that the right to fair trial could not be executed in Ukraine. At the same time, 2% of respondents said that such a right was ensured and 32% said they could partially exercise such a right. Over 50% of pollees expressed their distrust in the Constitutional Court and newly established Supreme Court, as well as in judges in their population centers or districts. About 40% of the respondents did not support implementation of the judicial reform in Ukraine. Judiciary experts believe that the latest polls indicate that the Ukrainian citizens have not noticed any changes in the judicial system since 2014.


The Ukrainian News Agency decided to get to know the real situation in the judicial system from a person who had not represented it for many years so far but once headed the Supreme Court of Ukraine, Vitalii Boiko (December 21, 1994 - October 24, 2002).

He told about his attitude to the latest reforms in the judicial sector, how independent the courts have become and what they were like in the mid-1990s. Besides, he talked about how justified was the disbandment of the Supreme Court of Ukraine as well as the establishment of the new one.


In your opinion how independent the courts are at the moment?


I'd like to note the fact that against the background of the changes that are taking place in the society now, the need in the reformation of the judiciary was obvious. What is the goal of the reform? To make courts more accessible for the citizens, to allow the citizens to protect their rights and freedoms, as well as to make courts to ensure the human right to objective and unbiased trial. To put it in other words, to make courts and judges act based on the principles of independence, objectiveness and justice. Were courts and judges independent before? I worked in courts between 1963 and 2002. I have passed through all the steps of the judicial hierarchy starting in the days when judges were elected by people. From my experience I can assure you that judges must not be elected as it happens with the members of the Ukrainian Parliament. A different way to elect judges has to be found. As you know earlier, the Verkhovna Rada of Ukraine had been the body to provide such authorities to judges. I know well that some MPs unsatisfied with certain decisions of a judge did not want to provide them with the status of permanent judges. The same refers to the President… I mean the judges were always dependant on the presidential teams. Later, they established the High Council of Justice. We were permanently criticized for the fact that it was formed of three judges only, while the rest of its members were representatives of the Ukrainian Parliament and the Government. Such conditions extremely complicated taking certain decisions on a judge. European partners criticized us for violating the EU documents regarding judges' independence. I do not like that our politicians, including the president, state that Ukrainian courts are biased and corrupt. What kind of an investor can come here after hearing such an estimate from top officials?! By doing so, they clearly tell potential investors not to count on any protection of their interests in Ukraine. When I headed the Supreme Court, I was addressed by MPs who complained about the rulings. I decided it was wrong and forbade it.


Are courts independent now?


I believe that achieving real independence of Ukrainian courts will take a long time. At present I am a bit concerned about attempts of the prosecutor's office to bring judges to justice for knowingly passing of unlawful rulings. I can't get how that is possible. If one does not agree with the decision, go challenge it! I don’t understand how one can initiate an investigation in a judge for alleged passing an unlawful ruling. That undermines judges' authority, makes such judges more loyal to the authorities.


Was the Supreme Court independent in the times you headed it?


I think it was. I had some conflicts with the top officials, however, they were settled soon. In particular, I had certain disputes with [former president of Ukraine (1994-2005) Leonid] Kuchma regarding the appointment of acting prosecutor general without receiving respective consent from the Verkhovna Rada of Ukraine. That was unlawful and I stood by my opinion. The Supreme Court did not accept any claims from the acting prosecutor general and did not let him visit the plenary meetings. As a result, the President apologized for the strain he used discussing the problem. In some time, a legitimate prosecutor general was appointed in a legitimate way.


Let's talk the new Supreme Court. What's your opinion regarding the disbandment of the 'old' and establishment of the new Supreme Court?


Yes, currently there is a conflict between the judges of the Supreme Court of Ukraine (aka 'old' Supreme Court) and the new Supreme Court. That really worries me. Firstly, they have gotten rid of the word Ukraine in the court's name. So we have Prosecutor General of Ukraine, Ministry of Interior Affairs of Ukraine… but what about the Supreme Court, isn’t it Ukrainian? I can't understand that. I admit that could be done in order to dismiss those working in the Supreme Court of Ukraine. However, the Ukrainian Constitution does not envisage any disbandment of the Supreme Court. So there is a conflict now. Recently they banned Supreme Court of Ukraine's judges and employees from getting to their working places. That shows the qualification and professionalism of those who are helping and reforming, those offering the changes. They should have envisaged that conflict. And now the judges of the Supreme Court of Ukraine intend to address the European Court of Human Rights (ECHR). It means the conflict is about to get its fame at the European level, which of course would not be so good for the Ukraine's international image. Besides, I'd like to talk the reform that provided for disbandment of municipal district courts and establishment of regional district ones. It's absolutely okay for Kyiv, but what about the regions where there are no buses, trams and electric trains? Did they think about the citizens' trying to get there? That's a problem with justice availability. The conditions being currently created seem to block the possibility to litigate for citizens.


During the rule of what president were our courts the most independent?


Every president has certain problems with understanding of what is allowed by the law and what is not. For instance, the first president of Ukraine (1991-1994) Leonid Kravchuk once decided to dismiss a minister, which was impossible without the consent of the Verkhovna Rada. And so he just passes respective decree. [Former president of Ukraine (2005-2010) Viktor] Yuschenko once did not like behavior of one of the road police officers and decided to disband the whole service. Later everyone understood things were going really bad without the service. Besides, he started to dismiss judges of the Constitutional Court elected within the presidential quota. I mean he abolished respective decree on their appointment. Then the dismissed judges challenged his decision and won the case. They were reinstated and decided resign right away. I remember the presidency of Kuchma for his facile decisions in some situations. However, he accepted his mistakes and corrected them. President Yanukovych had hard times too. I was directly involved in his life. He had two criminal records. When I worked in the Donetsk regional court, I was addressed by the member of the USSR council / double hero of the Soviet Union / pilot astronaut Beregovoy who requested me to verify the grounds for his [Yanukovych's] conviction. We studied his cases and saw they were evidence-free, farfetched if you will. The presidium of the regional court abolished those sentences and closed the case in absence of evidence. Speaking of Poroshenko, the idea to disband the Supreme Court of Ukraine belongs to him and his teammates. I think it actually really needed to face the reform, however, it should have been implemented in some other way.


Does the Ukrainian judiciary depend on the West?


Putting it baldly, our judiciary needs considerable changes and improvements, being brought in line with the western model. I mean judges and courts have yet to become more independent. Their [western] experience is in some way being used in Ukraine, which is in no way negative for our country. Ukraine has to learn from the European experience and apply all its positive elements.


Does Ukraine need the Anticorruption Court or it's just a temporary measure?


Let the Higher Specialized Courts work, but within the general instance courts. I mean a standalone specialized court is not necessary, especially when taking about corruption. Earlier, that was the issue dealt by the courts of general jurisdiction. They could have continued doing that. Everyone's equal before the law and the court. However, they decided to establish the Anticorruption Court. I'd like to note that legislative acts' drafting is currently at a very low level. I doubt that the Anticorruption Court will start working this year. I also doubt we need foreign experts within its public council.


Do you think the vetting of judges is a normal practice?


Yes, sometimes material status of judges needs to be inspected.


Has the situation in the judicial procedure changed since 2014? Has it worsened or improved?


The situation has changed a bit. Unfortunately I believe it has worsened. If a judge is removed from office through a dumpster, shame on Ukraine. Thus, anytime now when a judge hears a case, they pay particular attention to reasons for mass gatherings outside their windows. It's impossible to pass an unbiased ruling having someone to be rallying outside. That means that the pressure of the masses on the decision-making process at courts is huge nowadays.





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