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President of the Supreme Court Vsevolod Knyazev: "I am ashamed of the decision of HCJ members who resigned two days before the war"

President of the Supreme Court Vsevolod Knyazev: ©
On challenges for the judiciary, collaborator judges and the unsinkable Circuit Administrative Court of Kyiv (CACK)

article by INNA VEDERNIKOVA, ZN.UA politics editor

The judiciary entered the war at the height of the reset of the main bodies of judicial power. Currently, all processes of reforming the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ) are frozen. Part of the powers - those not defined in the Constitution - passed to the President of the Supreme Court.

Vsevolod Knyazev headed the Supreme Court in December 2021, and in February 2022 he gave recommendations to the judiciary on how to behave in a war situation. In fact, today he is the personification of the judiciary in Ukraine, and the stability of the system in this difficult time depends on the signals given by the President of the Supreme Court to the army of thousands of judges.

How did the judicial system reformat during the war? What are the mechanisms for identifying collaborator judges, and what is being done with them next? Why is CACK still working, where Yanukovych's lawsuit lies, and what is the threat to our statehood? Why is e-court needed right now, and who is responsible for its implementation? What can the critical underfunding by the Cabinet of Ministers mean for the judiciary?

Read about this and much more in an interview with the President of the Supreme Court Vsevolod Knyazev.

Court and war

- Vsevolod Sergiyovych, if possible, outline very schematically how the judicial system was reformatted during the war.
- The system has changed a lot. Sixty judges went to the Armed Forces or territorial defense. Hundreds of court staff are at the front. Many judges - women with children - went to Western Ukraine or abroad. Gradually, they are returning, but the shelling of cities and the continuation of hostilities are very slowing down this process. The husband of one of the judges recently tried to return to his house in Bucha and exploded in a mine.

Speaking of the functioning of the judicial system, there are three main types of courts depending on the territories in which they are located. The first type is the courts that are under occupation. It is impossible to administer justice there in any way. The Supreme Court has already made a number of decisions to change the jurisdiction of cases heard in these courts. The second one is the courts located in the territories where active hostilities are taking place. Everything happens differently there. Where the situation is critical, operational decisions to suspend the courts are made by the assembly of judges, as well as territorial divisions of the State Judicial Administration. The third type - the courts in the rear, whose activities, in fact, have not changed.

There is a proactive map on the website of the Armed Forces, which indicates the types of territories. I hope that information about the launch of courts in the regions liberated by the Armed Forces will appear there soon.

During the war, the courts considered 418 thousand cases (as of April 9, 2022).

- Are there statistics on judges - "internally displaced persons" and those who went abroad?

- To be honest, we do not have such statistics at the moment. As for the Supreme Court, several judges who were abroad at the time of the first phase of the war are now returning to the capital. The rest are already in Kyiv, cases are being considered.
Many judges of the first and second instance from the occupied territories, and often after the literal destruction of court buildings, left for Western Ukraine or abroad. We are now deciding to attach such judges to the courts located in the unoccupied territories and to which the cases of the occupied and destroyed courts have been transferred. As of today, we have started the process of temporary business trips of judges, starting their relocation to a new place of work.

- Do all courts work in Kyiv? If not, for what reasons? According to my information, there were no your orders to change judicial jurisdiction when in his recent interview the profile Deputy Head of the President's Office Andriy Smirnov called on the courts in the capital to finally start working.

- I think that this is a matter of wording, which may not be fully understood. The courts in Kyiv have worked and continue to work. Indeed, during the serious shelling of the capital, cases were not considered in open court. After all, a person from Bucha or Irpin, and even within Kyiv itself, could hardly come to the court hearing. However, in the normal course of the proceedings, issues related to the criminal process were considered - the continuation of sanctions, applying and change of measure of restraint, which was especially relevant for diversionists and detained occupiers.

It is good that the current situation in Kyiv and the region contributes to the stabilization of the courts. Meanwhile, in some courts of the Kyiv oblast - in Bucha, Borodyanka and other cities - it is currently impossible to restore administration of justice due to destruction or looting by the occupiers.

- Has the Supreme Court returned to its duties? Are you already in Kyiv?

- At the beginning of the war, the situation in the capital was very difficult and some judges of the Supreme Court really took their families to safe territory. I also evacuated my family. However, in the second half of March, the Supreme Court began to resume its work, and in April it returned to its duties in full. I, as well as the Chief of Staff of the Supreme Court, are in Kyiv and at work. Since the building of the Supreme Court is a target for the aggressor, I decided that the judges and staff shall be on duty for less than a week, taking turns performing their duties at home. We know sad history of Commercial Court of Mykolayiv Oblast which rooms were in the building of regional state administration: two employees of the court administration were lost, one was wounded, a part of cases was destroyed.

During the war, the Supreme Court has issued more than one and a half thousand judicial decisions. However, it is clear that pre-war productivity is unlikely to be achieved in the near future. Meanwhile, the flow of cases for a month and a half of war has decreased significantly. According to my information, courts in all of Ukraine receive only ten percent of the pre-war number of cases.

- Is this a signal for you? As I understood, for the same Smirnov this is a signal that the judicial system underperforms.

- If a person needs to go to court, they will do it. Acceptance of correspondence at the post office did not stop for a day. Claims are accepted, distributed and considered to the extent possible, taking into account the safety of all litigants.

- Are they distributed manually or automatically?

- Of course, automatically. I am a supporter of democratic instruments in any, even the most difficult situation.
However, I will return to your question about whether the judiciary is coping. Most courts in Ukraine are in a relatively calm situation, their activities have not stopped for a single day. However, the receipt of cases in these courts also decreased by 80-90 percent. Therefore, I do not agree with Mr. Smirnov, who hinted that the judicial system is somehow not working. The reason is that there is a war. The focus of people's attention is shifted to other things. There is no desire to argue on some minor issues, as for global affairs and issues where the law is violated, people are still going to court. Other issues are left to "after the war".

- Is it true that at the very beginning of the war the strategic group of judges of the Supreme Court discussed the issue of returning to justice "after the war"?
- No. Such a possibility was not discussed. It was only about the operational implementation of e- court for a number of categories of cases to ensure the safety of judges and participants in court proceedings, as well as the remote administration of justice.

Court and judges

- On Friday an airstrike was made to the station in Kramatorsk. Many people were killed and wounded. I will ask at once: were there no judges among them?
- According to information at the moment, no.

- The situation in the South-East is critical. The evacuation of residents of four oblasts - Donetsk, Luhansk, Kharkiv and Dnipropetrovsk is underway for the second week. Yesterday I talked to the judges of Donetsk oblast and realized that there are problems. Despite the fact that you gave the most detailed and evaluated by human rights activists recommendations on how courts should act in case of approaching the front line. Who determines when the court should be evacuated? When and how to take cases out? And where, in general, should judges go if Western Ukraine is already busy?

- Here are some important questions. So take turns.

Unfortunately, in the first days of the war, the occupation of our territories was quite fast. In fact, this is a very difficult question. First, how can we predict whether the city will be occupied? And secondly, understand correctly that the departure of the authorities is a very demotivating signal for citizens. This is a bad signal that you need to give up.

That is, making decisions on the evacuation of judges, police, SBU, district and city administrations are very difficult decisions. And, according to the recommendations of the Supreme Court, they were to be rendered by court teams and territorial subdivisions of the State Judicial Administration in each specific settlement, given the current situation.

Meanwhile, the recommendations emphasize that saving the lives of judges and court staff is a priority. Each court has found and finds this difficult balance between professional duty and protection of one's life. We already went through this with "DNR/LNR" in 2014. I know many

chairmen of courts who, until the last moment, made judgments on the illegal actions of the occupiers in the occupied territories.
I can't go out now and say: let's evacuate all courts just in case. This is probably the best solution from a security point of view. But worse - in terms of influencing the morale of people who continue to stay in these areas and protect them.

- And yet, where will the judges go if they are evacuating from the Southeast?

- We are in constant contact, the chairmen of the courts have all my recommendations. In case of evacuation, we have several options. The judiciary became very united. Judges of Western Ukraine host the families of colleagues at home. European judges' associations, in particular Poland, Lithuania and Slovenia, help us a lot. They have housed many of our fellow judges, women and children. In addition, the Supreme Court has certain housing reserves (for 200-300 people) in quieter oblasts. We are also negotiating with the heads of universities whose dormitories are not full.

- And what about cases? What percentage is lost, and what is the threat?

- We practically didn't manage to take out cases from the territories occupied at the very first stage of war. Only thanks to the actions of the chairmen of the courts it was possible to take out documents on especially serious crimes and high-profile cases. Not everywhere, unfortunately. Moreover, we are talking about tens of thousands of cases, the removal of which requires a huge amount of transport. You know the situation with the humanitarian corridors and when the Russians came to their agreement. Kramatorsk, by the way, was also declared as a corridor.

People would be taken out, not to mention cases ...
In the meantime, there are procedural mechanisms for reopening cases within the courts to which their jurisdiction has been transferred.

- About collaborator judges. Were there any cases in which judges in the occupied territories or in the combat zone made illegal judgments after your order to change jurisdiction? If so, did you report it to law enforcement?
- From the moment of the decision on change of jurisdiction in this or that court such court has no right to hear cases and to make judgments. As far as I know, even if there have been such cases, it is solely due to the judges' lack of understanding of the new realities and our recommendations. However, I am in touch 24 hours a day, and we correct and clarify all such errors in real time. As for the deliberately made illegal judgments, I do not know about them at the moment.

- Smirnov stated the documented case of a judge who sided with the aggressor in Luhansk oblast. However, he opaquely hinted at many latent "bear lovers" in Ukrainian courts, including Kyiv. What are the mechanisms for identifying such judges, and what is being done with them next? Only HCJ can dismiss them, and there is none. Even if the SBU deals with collaborators, this does not mean that they are deprived of status.

- Today there are collaborators in all law enforcement agencies and public authorities. Courts are no exception. One case of treason is officially known. The judge and the chief of staff in the occupied territory of Luhansk oblast conspired with representatives of the Russian Federation. As a result, a criminal case was opened under Article 111 on treason. An investigation is underway. It is possible that several more personalities are being investigated.

In the meantime, according to my information, the vast majority of judges have left the occupied territories and are waiting to be sent to other courts. As for your question about hidden collaborators, of course, you will not read everyone's thoughts. But, talking to judges of different levels, I feel that the majority have united in the desire to defend their country and work for it. Just

like all over the country. Therefore, I still do not agree with the statements of the representative of the President's Office. The crimes of the Putin regime are so obvious that most Ukrainians are reluctant to take on all this shame.

- There is a very fine line between the protection of the uniform and the need for a realistic assessment of the situation. In order to preserve our statehood. When it is absolutely clear that we are literally being destroyed. If you feel, so to speak, discomfort from the actions of a court or judge, you can not dismiss them (due to the lack of HCJ and HQCJ today no one can dismiss a judge), but you can transfer to an inactive court and deprive access to the register, can you?

- You correctly identified the problem, which I see too. And it would be strange if judges who are suspected and who have left the occupied territories have been given the opportunity to administer justice in other courts. Of course not. In this regard, communication has been established with the SBU, which reports the necessary information and conducts a full inspection.

- Do you have data on how many judges stayed in the occupied territories? And why?

- Such statistics are not kept. People were moving too fast and chaotically, and chairmen of the courts were literally on the phone. It is impossible to check exactly where everyone is.
Those who may be afraid of passing Russian checkpoints because of their status stayed in the occupied territories. We have a case when a car of a judge of the Chernihiv court, in which her whole family was, was shot right at the checkpoint. And some judges stay in touch and are awaiting transfer to leave immediately for a new job.

- Human rights activists are currently very concerned about the closure of the register of court decisions. Why close the whole register if it was possible to close the part concerning judges?
- The fact is that the occupiers gained access to the register in the occupied territories. In particular, to the electronic signatures of judges and passwords. In the conditions of war it is impossible to quickly understand where these signatures and passwords got, and whose exactly. We decided to close the registry so as not to lose more. Information could simply be destroyed, and the consequences for the economy and the rights of citizens, as well as for their lives and health, could be simply irreparable. Therefore, I believe that our actions were adequate to the situation.

Judges are now regaining full access to the register. They get it by last name. All court decisions continue to be entered in the register. This means that human rights activists will receive all the information they are interested in after opening the register in a month or two. And let's not forget that the register contains complete information on the property and addresses of citizens, military units, defense facilities. The most various cases were considered.

- And yet, to close the gestalt on the risks of collaborators and open a block of questions about the interaction of the judiciary with other branches of government, - CACK. Putin decided to attack in the fall, so a lawsuit filed by Yanukovych in CACK to declare the Verkhovna Rada's decision to remove him from power, filed in December 2021, is part of an operation to delegitimize the Ukrainian government. According to my information, the lawsuit miraculously reached Ablov, Vovk's deputy (all judges almost went on vacation on the day of the "automatic" distribution). With a positive decision, we could or can get two presidents. With all the consequences that follow from this. However, Smirnov officially, but without details, stated that CACK was securely blocked. How blocked? It's true?

- CACK has started its work and accepts claims and makes court decisions. Will it consider Yanukovych's lawsuit? I don't think so. Because in the current conditions, even the most corrupt

judges will not risk making such a decision - they will simply be lifted up on a pitchfork. Meanwhile, realizing the importance of resuming administrative proceedings in Kyiv, I monitor the situation regarding this court on a daily basis.

- Vsevolod Sergiyovich, but the point is not whether you keep track or not. The fact is that almost a year (!) ago a presidential decree was issued to liquidate the CACK. The fact is that the relevant bill is in the profile committee in the parliament. What signals does the government send to the judiciary in this case? This is nonsense! And for a warring country - a case of treason under Article 111. It remains only to enter the last names. We could not assume that Putin would attack us. But he attacked. What is happening in general? Please explain the country as the President of the Supreme Court.

- The situation with CACK is a double-edged sword.
On the one hand, we know from NABU films about blatant corruption, as well as the actions of judges that influence the decisions of the CCU and, consequently, state security. And in order to close the issue, only political will was needed.

On the other hand, from the very beginning I was against the complete liquidation of CACK. The only right decision is to limit its powers and cut off corrupt judges. Because it is the block of jurisdiction of the highest bodies of state power that turns this court into a monopolist. And with any team of judges. This is not the first time this has happened.

Therefore, the division of powers between different courts is a way out. And then it would not harm the judicial process in this area. Because all this time we are talking about the judicial system, where each court performs its function. Tens of thousands of cases of ordinary citizens can "hang" indefinitely in the event of its liquidation.

- As a result, the beautiful political decision isn't executed, and Vovk continues to do "justice". Are you personally one hundred percent committed to defending this position?
- In the profile committee, in addition to the bill on the liquidation of CACK, there is a bill on the transfer of some of its powers to the Supreme Court. And this is at some point also a way out. In order to implement it, only two sentences need to be changed in the law.

Unfortunately, even with my current powers, I cannot influence the legislative branch. But I will repeat once again that the Supreme Court is ready to implement any of these laws, clearly indicating a more correct, in our opinion, position.

Court and state

- All right, let's talk about relations with the executive branch. The crisis always shows the most problematic places in any system. Where is thin and where is the rupture in the judicial system today?
- Nowadays it is obvious that many procedures and processes do not correspond to modern realities. The first signals that many procedural rules need to be changed and simplified, of course, gave COVID-19. Well, the war finally pointed the way. This applies to the use of information technology in litigation. The issue, which has long been resolved in most developed countries of Europe and the world, we have in its infancy. For the past four years, the e-court has not been set up by the relevant services. As a result, we find ourselves in a situation where it is physically impossible to get to court and there is virtually no e-court.

The Supreme Court has drafted an interim bill in this regard, which allows cases to be heard remotely.
The big issue is court funding. The resources allocated are very limited. And after the start of the war even allocated ones are being taken away. Understand correctly: we realize that money for the

army is the main and primary task. However, the financing of postal correspondence for both the Supreme Court and the courts of first and second instance is currently completely blocked, which could lead to the suspension of any court. And this fact proves once again how important it is to implement e-court. And for the sake of access to justice, and for the sake of saving budget funds.

- Who do you mean by the services responsible for the failure of the e-court system? Please specify.
- As now I see and control practically all processes in judicial system, I can tell that it is a question of concrete divisions of the State Judicial Administration. Despite the huge amount of money - hundreds of millions of hryvnias allocated for the entire previous period - the state has not been able to move even ten percent in this direction.

- I know that there were developments, and some elements of the system were even tested in 2018. What happened? Who is helping / not helping you set up an e-court system today?
- I will not comment on the pre-war period, but on the present, we are now very actively cooperating with our Polish colleagues, who have recently switched to the format of electronic court. Their judicial system is very similar to ours. So now we are working out a methodology with them. The issue of financial security is difficult. I am currently negotiating with a number of international organizations, including the EBRD, on this issue.

- And how much money should the West invest?

- Hard to tell. This will be clear when we adopt the relevant amendments to the codes. The question is how deep we decide to go into the e-court system. Or it will be quite fragmentary, with cases of a certain category. Or all cases will be considered electronically. Or only in those areas where hostilities are taking place.

- Who are you discussing this issue with? How organized is your communication with the chairmen of the profile committees Sergii Ionushas and Andriy Kostin, as well as with the Deputy Head of the President`s Office Andriy Smirnov? I'm not the first person you tell about this problem, am I?

- There is constant communication with the chairmen of parliamentary committees. Immediately after the conversation with you, I have a meeting with Andriy Kostin about the bills that need to be considered in the near future to optimize the functioning of the judicial system during the war. We are also working with Sergii Ionushas to amend the Criminal Procedure Code to ensure that war crimes cases are heard. Communication is daily.

In the coming days, I will take part in a meeting of faction leaders, which will also address the problems of the judiciary. We communicate with the representative of the President`s Office Andriy Smirnov much less often, which is normal for a democratic country.

- Do the mono-majority and the committee support the bill you mentioned and ideas for the operational implementation of e-court?
- So far, we do not agree on all issues, and there is no support from the parliament for the introduction of remote consideration of cases. But we will continue to have a dialogue and defend our position.

- Clearly. As well as with CACK. Are you personally for full automation or for partial?
- Promising and positive in all respects (including anti-corruption) is full automation, as in developed countries. But there are already issues of a completely different order arising there. While we are arguing over how to scan documents in the court office, they have given first instance cases to artificial intelligence. In parallel, answering the moral question of whether a

person has the right to have their case reviewed by a person. Do you understand the size of the abyss? Compared to these countries, we are just at zero point.
However, we can already set a strategic goal and start moving in small steps. We can give standard cases (alimony and minor offenses, for example) to a computer with the subsequent right to turn to a judge in case of disagreement, gradually reducing the cost of huge human and financial resources.

- Automation has been sorted out. And with whom do you negotiate about the underfunding of the judiciary in general? With the government? Is underfunding primarily related to the courts apparatus? The problem was very acute before the war, when employees quitting their job en masse due to meager wages.

- In fact, raising the issue of financing the judiciary, I understand perfectly well that during the war it is difficult and ungrateful to talk about money. But it is even harder not to talk about our main task - to preserve state institutions. The court is one of the key ones. The situation is getting worse every day. The government withdrew 1.5 billion hryvnias from the same State Judicial Administration, which is about 12% of the annual salary fund. We must either lay off people or cut salaries. The main risk here is that as a result, the judicial system will lose most of the qualified specialists of the apparatus.

Today, the salary of a court clerk is lower than that of a supermarket cashier. Although they are highly qualified civil servants, they take an oath, have certain restrictions and have a great responsibility. I would not like to lose all that intellectual potential. According to my information, about 10% of the staff of the apparatus are not ready to return to their jobs.

At present, all decisions on this are made by the government. For our part, we are doing everything we can, hoping for counter-moves.

- The same Smirnov, continuing the topic of optimizing the work of courts during the war, said that you can draw resources from the court fee. And on salaries of the apparatus including.
- I have already said about the objective reduction of the number of lawsuits. If the lawsuits come at the level of 10% of the pre-war norm, then the budget revenues are at the same level.

It should also be clarified that Ukrainian courts are financed mainly from the budget and only partially (10%) from court fees. But in developed countries the situation is completely different. There, the courts are fully funded by court fees. However, in order for this mechanism to really work in our country, it is necessary not only to make certain changes to the legislation, but also to significantly increase the court fee rate. On average, everyone goes to court once in their lifetime. Today, going to court costs them an average of 200 hryvnias. Which is actually a very ridiculous amount to start and process a case, pay for the Internet and use of the information system, pay salaries to judges, staff, security, and so on.

Therefore, I am convinced that the rate of court fees should be significantly increased. Court fee rates were higher. They have been reduced in the last two years. Although at high rates the demand for court services did not decrease.
At the same time, the increase in court fees should not apply to privileged categories - pensioners, people with disabilities, single mothers, dismissed from work and others who are currently completely exempt from this payment or pay the minimum.

If it is a business dispute or a dispute with the authorities, you have to pay. Moreover, if the plaintiff wins the case, the court fee under Ukrainian law is levied on the losing party. And it can also be a good incentive not to file unfounded lawsuits.

Court and judiciary establishment

- At the time of the beginning of the war, two processes were launched in the judiciary - interviews for members of the High Council of Justice, as well as submission of documents for participation in the competitive selection to the High Qualification Commission of Judges. Just before the invasion, HCJ members resigned. Selection is frozen. As a result, there are no legitimate judiciary in Ukraine - neither HQCJ nor HCJ. Part of the powers were handed over personally to the President of the Supreme Court. That is you.

How does the judiciary cope with the challenges, being essentially beheaded? No one can appoint, dismiss or bring to disciplinary responsibility a judge.

- This is a big problem. To be honest, I was against the decision of HCJ members to resign at such a critical time for the state, just two days before the war. I voted against and persuaded everyone to stay and continue working. I am still ashamed of their decision.

- Right here you will be hated by stakeholders of judicial reform from public organizations. Explain why for you the nominal presence of the institution in the legal field is more important than its quality? More precisely, poor quality.
- Knowing the system from the inside, I have my own opinion on this. The vast majority of HCJ members are adequate and professional people. I do not have information about their income and expenses, as well as their property and travel. All this was to be assessed by the HCJ Ethics Council with the participation of international experts, which was established during the reform.

- But you do have information that these adequate people didn't vote for removal of the chairman of CACK Pavlo Vovk from office.
- The fact is that HCJ was influenced by personalities who pushed the council to such, in my opinion, deeply erroneous decisions. Without these people, the institution could be kept in working order while the Ethics Council would check their suitability and select new people. Even a not perfectly functioning institution at this stage is better than none at all.

- So you were for cutting off a rotten head both inside HCJ and in the entire judicial system?

- Roughly speaking, yes. And this process has, in fact, already been carried out. The constitutional functions of HCJ cannot be transferred to anyone. Because during martial law it is impossible to make changes to the Constitution. And we have a collaborator judge who needs to be prosecuted and further dismissed from office. And now we are looking for an opportunity to make some point changes to the law to allow the dismissal and prosecution of collaborators. Non-dismissal is also a direct signal to the system that anything is possible. Does it make sense?

This is what a working or non-working institution means. That is, reform is a very delicate matter, where the main thing is not only to change, but also not to harm in the pursuit of change.

- What kind of judicial system should come out of this war?

- Here are three key points.
To start with, we did enter the war at the height of the reform of the judiciary, which was objectively necessary. At the same time, let us not forget that in the background of the judicial system of Ukraine there are three million decisions made by courts annually, of which only 100,000 reach the Supreme Court. This means that we have 2,900,000 decisions that our citizens agree with and trust. And which are passed by our judges.
Yes, they are different, but the main negativity and corruption are focused on the level of decision- making regarding public authorities and big business, in the so-called high-profile cases. At the same time (and we have already talked about this), political will is often lacking in order to solve these problems.

Furthermore, the war is thousands of dead and one in all pain. As well as the great unity of the people and all branches of government, associated with the desire to defend their country. This is a good in its purest form that no dictator can defeat.
Finally, if after everything our country is going through today, after everything we feel when we see footage from Bucha, Mariupol, Kramatorsk, after everything our children dream of after the war, we will allow indifference, corruption, schemes and new "films" to appear again, since then we will really lose statehood. And then all of us are not worth a plugged nickel. Including the judiciary.

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