Top judge works on restoring and reforming Ukrainian justice system beset by illegal war, corruption

By Cristin Schmitz

Law360 Canada (November 16, 2022, 2:48 PM EST) -- Russian troops are hunting down Ukrainian judges and pillaging and destroying their courtrooms, but his country’s wounded justice system is still operating, Ukrainian Chief Justice Vsevolod Kniaziev tells The Lawyer’s Daily.

The 43-year-old ex-civil litigator, who was elected chief justice by the 200-member Supreme Court, and took on the top job one month before Russia widened its illegal invasion Feb. 24, 2022, gave an international judicial conference held in Ottawa a searing presentation, with photos, of the devastation the Putin regime is wreaking on his country, which on Nov. 15 was hit with a barrage of missiles, leaving millions of Ukrainians without electricity, heat or water at the onset of winter.

“I’m very proud of my judges, who despite bombing and shelling every day in most regions of Ukraine … still every day go to the court, and they administer justice, and when there is an air force alert, everybody goes down to the shelter, to the basement,” Chief Justice Kniaziev said in an exclusive interview Oct. 31, during the National Judicial Institute’s (NJI) educational sessions which attracted judges from around the globe.

Ukrainian Chief Justice Vsevolod Kniaziev

Ukrainian Chief Justice Vsevolod Kniaziev

“Lawyers, defendants, prosecutors, judges, all are sitting in the same shelter for hours, waiting until the air raid alert will be cancelled — and sometimes it is very dangerous to come to court and to hear cases — but still judges do it,” the chief justice said. “Our judges are really great patriots and professionals, and very courageous.”

Chief Justice Kniaziev publicly delivered two main messages while he was in Canada. Echoing the government of Ukraine’s call to the world last September, its top judge urged countries with “strong democratic values,” including Canada, the United States and the nations of Europe, to create, via an open international treaty, a special international tribunal to try, in absentia as necessary, Russian Federation President Vladimir Putin and his senior commanders and advisers who Chief Justice Kniaziev said are committing the supreme international crime of “aggression” against Ukraine (defined as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”)

The chief justice explained that Russia’s forces have been specifically targeting Ukraine’s legal community and its courthouses: as of Oct. 31, 14 per cent  of the courts of appeal and local courts were not administering justice and 11 per cent of court premises were damaged or completely destroyed.

“Russian soldiers have stolen everything, and what they couldn’t steal, they destroy,” he told The Lawyer’s Daily. “They shoot into TV sets, into video, our conference systems so ... we have a very bad situation with courts,” he said. “We need to restore our courts.”

Asked what Canadian judges and lawyers can do to help their Ukrainian counterparts, the chief justice delivered his second message: a suggestion that Canadian jurists, along with those in other democracies including the U.S. and U.K., put their heads together to assist Ukraine to obtain reparations from the Russian Federation to rebuild the hundreds of billions of dollars-worth of physical infrastructure destroyed by Putin’s government.

For Ukraine’s justice system, “as a first thing, what we need is financial help really, if it’s possible, because of course buildings are destroyed, every scene was looted by Russian soldiers,” the chief justice said. “We must think about a mechanism to help Ukraine restore and rebuild the losses, the destruction inside Ukraine ... and if the Russian Federation ... will not agree to pay anything to restore Ukraine, we should use ... lawyers … to find out ... legal mechanisms to use Russian property, Russian assets outside the Russian Federation.”

(On Nov. 14, nearly 50 nations, including Canada, co-sponsored a resolution within the UN General Assembly recognizing the need to establish “an international mechanism” to compensate Ukraine for damage, loss and injury caused by Russia’s “wrongful acts” against Ukraine, as well as to create a register to document reparation claims and supporting evidence. Of 193 member states, 94 voted in favour of the legally non-binding resolution, 14 against and 73 abstained.)

Chief Justice Kniaziev said Ukrainian judges who refused to join Russia’s judicial ranks in occupied areas have been jailed. Ukrainian jurists consequently often hide themselves, as well as their documents, so they can’t be identified as judges.

Kidnapping and torture — directed especially at jurists who participated in prosecutions of alleged separatists and collaborators in Russia’s purported annexation of Crimea and parts of Eastern Ukraine in 2014-2015 — are also part of the Putin regime’s efforts to intimidate all Ukrainian judges from presiding over war crimes prosecutions of Russian soldiers and of alleged Ukrainian collaborators and military traitors.

Such persecutions have not, however, shut down the Ukrainian justice system, Chief Justice Kniaziev said, informing the NJI conference that, as of Oct. 20, more than 3.1 million legal cases had been decided since Feb. 24, including by local courts (almost two million); 41,000-plus by the commercial courts of appeal; 5,596 by the new High Anti-Corruption Court, and 82,622 by the Supreme Court.

Ukrainian judges are actively defending their country from Russia’s aggression, including by voluntarily donating from 40 to 60 per cent of their wages to the military, the chief justice said. (Supreme Court judges earn about $8,000 Cdn. per month, and pay the higher percentage, as compared to first instance judges who earn about $1,500 Cdn. a month, he said.)

Chief Justice Kniaziev said 60 judges and 311 court staff in Ukraine have also volunteered for the army, including “our hero” Oleksandr Mamalui, one of four Supreme Court judges who are engaged in the fighting, and who was awarded the Order for Courage last July by Ukrainian President Volodymyr Zelenskyy.

Judges and other justice system players are also co-ordinating humanitarian aid for the military and giving talks on justice to children in such deoccupied cities as Irpin and Kyiv.

The chief justice summarized, in numbers, Ukraine’s grim situation: as of Oct. 31, three judges were among 6,374 civilians who were killed (including 430 children). There were 9,776 civilians injured.

In addition, of Ukraine’s pre-war population of 44 million, 1.6 million people have been deported, including 600,000 children. There were 7.6 million refugees, and 6.9 million internally displaced persons as of the beginning of November, the chief justice said, citing statistics from the UN High Commissioner for Refugees, the UN’s International Organization for Migration, and from Ukraine’s Prosecutor General’s Office and the Ukrainian Parliament’s Commissioner for Human Rights.

The chief justice said that when the Putin regime moved to all-out war against Ukraine last February, his country was still making the changes that are needed to establish its judiciary’s full independence and ensure its integrity — a requirement if Ukraine’s application this year to join the EU is to succeed.

Rooting out corruption remains the justice system’s major challenge, although judicial reforms enacted in 2016 have helped ameliorate the problem, Chief Justice Kniaziev said. (Asked to estimate the current extent of corruption in the Ukrainian judiciary if its level of corruption before 2016 was pegged at 10/10, the chief justice replied “six or seven.” )

“The problem is not only in the judiciary, it’s a problem of corruption everywhere in Ukrainian society,” he explained. “It starts ... when you need to sort of bribe to get your children into the kindergarten, and then in school ... to have a good mark, so it starts from the beginning,” he remarked. “So many of us have to fight corruption — not only in the judiciary. It’s impossible to fight corruption in one body, in one part of society, [while] not fighting the corruption in all the other parts.”

“Corruption is one of the most significant problems,” he acknowledged. “I think after the war ends, Ukrainians will understand that they have to build a new democratic nation with the values of democracy. ... And we will just have a brand-new country, develop our country and build a strong and independent Ukraine.”

Asked to estimate how long it might take to implement reforms to the justice system, including already-planned new initiatives, that would adequately strengthen the judiciary and rule of law, once the war is over, the chief justice responded “three years will be enough if you do everything quickly and effectively,” assuming, he added, sufficient political will and the absence of insuperable political obstacles.

“I will do everything to make this happen,” Chief Justice Kniaziev vowed, but noted “there are also some things that do not depend on me.”

He cited politics as well “opposition inside the judiciary, because not all judges want to be good judges, to be not-corrupted judges ... and those judges have a connection with this politics. And this slows the [reform] process. If it didn’t happen, I think two or three years will be enough.”

The chief justice said a new and publicly available registry on which judges must declare all their assets (or face prosecution and removal from office) has been an effective measure to reduce bribery and judicial corruption. “This data is open,” he said. “Everyone can see what I have bought, what is my salary, where do I live — without address — but the flat was [a certain number of] square metres and the cost, with my name,” he explained. “Every year I have an asset declaration and everyone can see what I had last year, and what I hold this year, and how much money did I earn — and does it correspond.”

“This is a very good mechanism,” he said, noting that the registry also lists the assets of a judge’s spouse, children, parents and grandparents.

Higher judicial salaries have also helped reduce corruption, the chief justice said. “Salaries are quite OK,” he remarked. “The level of salaries is not so high in Ukraine.”

Chief Justice Kniaziev noted that when he started his 20-year career as a lawyer, first as a criminal lawyer and then as an administrative law and civil lawyer, it was hard to become a judge since the bench was treated as a patronage plum and cash cow. “Everybody understood that judges are corrupt and to have corruption income,” he said. “So a simple guy like me would never be a judge.”

But when open competitions were introduced at lower court levels, he applied and became a judge of a local administrative court for two years. He subsequently worked for the chief justice of the administrative court, and then successfully applied, and won, an open competition to join the Supreme Court, where he was mentored by the chief justice, and succeeded her this year when she reached the mandatory retirement age of 65, he said.

The demands on Ukraine’s new top judge are unique in the midst of the ongoing war. Committed to reforming and improving Ukraine’s justice system, he is also dealing with the killing and imprisonment of judges, hundreds of judicial transfers, and destroyed court infrastructure.

“It’s very difficult, but it was my choice,” he emphasizes. “I have to do it, and I have the power to do it. I have the motivation.”

“And I will never give up,” he vowed.

Asked whether he believes Putin will ever be criminally prosecuted, the chief justice replied “I hope so, but also hope ... that Russians themselves understand that he is doing wrong. Maybe he would be convicted inside Russia ... If not he should stand before the international tribunal.”

Contrary to the many predictions that Ukraine is facing a drawn-out grinding war with Russia, Chief Justice Kniaziev believes an end is in sight.

If its allies give Ukraine the weapons it needs “our soldiers may finish this war [by] the end of this year,” he predicted. “And if not, anyway it will finish soon, and Ukraine will be victorious. “

He also anticipates “big changes” inside Russia, that “will make it possible to bring to justice” the leadership of the Russian government, who he says have committed the crimes of genocide and aggressive war. “There will be no Russia like we know it today,” he said. “I’m absolutely sure that this war will lead to change in the political regime in Russia, and I hope that will change the authoritarian regime of Putin.”

See here for free access to Law360’s coverage of the war in Ukraine.

Photo by Cristin Schmitz

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