Despite the war, Ukraine’s courts continue to function
An interview with Bohdan Monich, chairman of the Ukrainian Council of Judges. Interviewer: Serhiy Bosak
November 30, 2022 - Bohdan Monich Serhiy Bosak - Interviews
SERHII BOSAK: Please tell us how the judicial system in Ukraine currently functions, how do courts work during the war?
BOHDAN MONICH: All courts with the exception of those located in the occupied territories work. This is because, in principle, there is no such thing as a “wartime procedure” for courts. Justice must be administered under martial law and cannot be limited, there cannot be any special procedures, and so on. Courts should work in their regular mode, but of course, it is not always possible to maintain regular mode. When the active phase of the war began, the Council of Judges was planning its regular meeting. But everyone knows what happened. Therefore, on February 24th 2022, the Council of Judges emphasised that a person’s constitutional right to judicial protection cannot be limited and we also provided certain recommendations to the courts. In general, the situation developed differently in different regions. But for the most part, courts worked. In some cases, due to the security situation, the courts suspended certain cases. In some places, the work of the court was suspended altogether.
There were cases when the courts considered only urgent cases, for example, the extension of the term of arrest, or ones involving collaborators, traitors and so on. After some time, when the situation changed, the courts expanded the list of cases. Where it was relatively peaceful, the courts worked mostly in regular mode, as far as I know.
At the same time, due to the war, the number of court appeals decreased. Today, this trend is changing and the number of cases is increasing. We already have figures for the first half of the year. If we take Vinnytsia Oblast, for example which is relatively peaceful, although there are really no places like that in Ukraine, in 2021 local general courts received 106,000 cases and records. In the first half of 2022, 39,800 cases have been received. According to the results of the first six months of the year, the rate fell by 25-30 per cent. Apparently, the number of cases in courts throughout Ukraine decreased by a third. Of course, justice has stopped in the occupied territories.
Courts operate in the regions where hostilities are underway but remain on the territory controlled by our troops and our government. At the same time, they work even under artillery fire; for example in Nikopol, which is constantly under fire. Judges work and do not go anywhere. In addition to considering cases, the courts prepare for a possible evacuation, deciding whether certain case records need to be digitised. In light of our recent ruling that the air raid warning is not to be ignored, some courts are wondering how it should be enforced in practice. After all, in some cases, it is during the air raid that a criminal’s term of arrest may expire. Courts will determine on their own whether it is advisable to hold a meeting in each specific case. Recently, I spoke with the head of one of the Nikopol courts. The peculiarity of their work is that, unlike Kyiv and Vinnytsia, which come under missile attacks only, they are affected by artillery fire. In fact, the warning signal sounds when the shelling begins and the first shells arrive. But Ukrainian courts work even in such conditions, they hold trials.
But in principle, judges announce a break during the air raid siren?
Absolutely. The alarm cannot be ignored. Whether it is Vinnytsia or Transcarpathia, whether it is a civil case, or an administrative case, of course, it is necessary to announce a break. Safety comes first, but there are exceptions to this rule.
How many cases have been tried by the courts during the war?
If we talk about local general courts, then in the first half of the year, 820,111 cases were received, and 827,570 trials were held. If we are talking about general appellate courts, then 88,855 cases were received and 88, 846 trials were held. The number of cases received equals the number of those considered (with a slight overflow). For example, 143,000 cases were received in district administrative courts, and 191,000 cases were considered. More cases were considered than received because the war actually allowed the courts to take care of the backlog (in the given example, 50,000 more cases were considered than were received – ed.).
And how many courts operate in Ukraine?
Almost all courts operate. Certain courts, where it was impossible to administer justice, temporarily suspended their work or certain categories of trials. Later, the chairman of the Supreme Court changed the jurisdiction of such courts by his order. Cases from those courts were transferred to others. The courts located on the occupied territory do not operate. Those who are captured. All the rest are 100 per cent operational. Up-to-date information on the working courts and courts where work has resumed is available on the website of the Supreme Court.
Are there traitors and collaborators among the judges?
Unfortunately, there are. We receive such information. Today, it comes to different parts of the justice system from different bodies. In some cases, it is more reliable, in others it is not. That is why, on August 5th 2022, the Council of Judges of Ukraine adopted a decision to prevent inefficient use of budget funds and created a working group to provide information regarding possible involvement of judges or court employees in collaboration. The working group will decide on a case-by-case basis whether to suspend the judge’s remuneration who are reasonably suspected of collaboration or treason. In general, this is a forced step taken due to the fact that the Supreme Council of Justice, which could solve these issues, is not currently operational in Ukraine.
Also, for example, there is information that certain retired judges, in particular in Melitopol, have entered into collaboration. Unfortunately, we cannot deprive them of their lifelong financial support, because they are retired. First, law enforcement officers have to investigate the relevant criminal cases, the judge has to be found guilty, and then the verdict has to enter into force. But even then, the decision of the High Council of Justice, which is not operational, is required to deprive him or her of lifelong financial support. As for working judges-collaborators or court staff, the situation is somewhat simpler, because their judge remuneration or salary can be temporarily suspended. But situations are different, because some people are forced to stay in the occupied territories. Therefore, the aforementioned working group will deal with each specific case.
Do I understand correctly that collaborating judges who are retired have certain guarantees?
That’s right. It is very difficult to deprive them of lifelong financial support. The judicial branch of government practically has no influence over this, because the funds are disbursed by the Pension Fund directorate. In general, this is a difficult issue. It is one thing if a person has not committed any crime and could not leave the occupied territory. Does a pensioner have an obligation to leave the territory? And what about a judge, who is retired and is not going to get another citizenship or cooperate with the enemy? It is difficult for me to answer these questions. Judges who have entered into collaboration are a different matter. Ukraine does not have to and will not spend money on their support.
Are there many judges like this?
Unfortunately, they exist but I cannot tell you the exact number. I wouldn’t say there are many of them. Perhaps this is due to the fact that different law enforcement agencies forwarded this information to different bodies. For now, we have asked them to provide this information to the working group and then the overall picture will be clear.
Do you know how many judges who stayed in the occupied territories and became collaborators have dual citizenship?
I don’t have this data at the moment. As for those who stayed in the occupied territory, I have already said that this is a very difficult issue. It is one thing when a judge from Kherson is forced to stay, hides documents and hides from the invaders himself (I personally know several stories when judges spent more than two months under occupation and then left for the territory controlled by Ukraine under fire). It is another matter when the judge cooperated with the occupying authorities or acquired the citizenship of the occupying state. Again, we expect law enforcement officers to provide such information. We will deal with it.
How can you evaluate the work of the courts during the war?
I think that the judicial branch of government has endured. The judicial branch of government managed. Yes, there may have been some issues in the first days, but overall, I think we managed. And we are holding on with dignity.
Can you name the top three problems that the courts are currently facing?
Underfunding. There are no funds for anything at all. As of today, the government is able to pay only wages, any other expenses and I do not mean maintenance, but basic purchase of stamps and so on. On the other hand, we understand everything. People lost their homes and jobs. According to the latest data, more than 30 per cent of our citizens lost their jobs during the war. The judge remuneration is quite high today, even considering the rise in prices and the dollar exchange rate. Therefore, the majority of judges joined the initiative to transfer part of their salaries to support the armed forces. Many judges are also actively involved in volunteer initiatives. Individual judges buy paper and stationery with their own money. But this is not quite right. If it is for personal use it is more or less OK. If a judge buys them for the court, these are signs of corruption, because the current legislation prohibits financing the courts from sources other than the state budget. However, I would put this problem last. The first problem is, of course, the war.
How do international partners evaluate the work of Ukrainian courts during the war?
From the communications I had, they are overtly astonished by how the judicial branch of government works. Of course, the general problems that existed before the war did not disappear. I mean the judicial reform and the formation of the High Council of Judges and the High Qualification Commission of Judges of Ukraine as the first step in this reform. Had the High Council of Judges worked, things could have been much easier.
Did citizens’ access to justice change during the war?
It has changed only in that people mostly started using electronic means of communication with the court. There were no drastic changes. Why? Because we lived and worked during COVID, and now we continue. Even during the COVID period, we provided judges with similar recommendations. If there is an opportunity to connect online, via video communication, then you should use these opportunities. And we are trying to introduce electronic services with citizens. We encourage people to provide their mobile phone numbers, because if there are no postage stamps, then there are mobile messengers. If a person provides the phone number then one can get all the information without using stamps and envelopes.
Has access to justice changed?
There is still access to justice. At certain points, its volume may have slightly decreased, but this only applies to those regions that are occupied because the region was occupied and the court stopped working. Of course, this led to an access problem. In the occupied territories, people have other priorities, namely the preservation of life and health, so I associate the decrease in the number of cases with this, and not with the fact that the courts are underperforming somewhere. People in these territories clearly have no time for courts.
This interview was also published by ukranews.com in Ukrainian.
Bohdan Monich is chairman of the Council of Judges of Ukraine.
Serhiy Bosak is a Ukrainian journalist with the news portal ukranews.com.
This article is published in the framework of the “Bohdan Osadchuk Media Platform for Journalists from Ukraine” co-financed by the Polish-American Freedom Foundation as part of the "Support Ukraine” Program implemented by the Education for Democracy Foundation and the Foundation for Polish-German Cooperation. Texts published as part of this project are available free of charge under open access Creative Commons license. Republishing is allowed under the CC license, however requires attribution and crediting the author and source.
This article is published in the framework of the “Bohdan Osadchuk Media Platform for Journalists from Ukraine” co-financed by the Polish-American Freedom Foundation as part of the "Support Ukraine” Program implemented by the Education for Democracy Foundation and the Foundation for Polish-German Cooperation.
Texts published as part of this project are available free of charge under open access Creative Commons license. Republishing is allowed under the CC license, however requires attribution and crediting the author and source.