“Ukraine’s former judicial system crumbles” – lawyer who made it to the new Supreme Court

Olena Kibenko has been practicing law from 1992. This very year, the law firm “Profit” was founded, where Kibenko was a chairwoman. From 2002 till 2011 she worked at the ILF law firm, firstly as a consultant, then as a senior partner. On March 2011, Olena Kibenko became the managing partner of the firm “Kibenko, Onika and Partners.” As well, Kibenko is a Doctor of Law. She undertook an internship at Thames Valley University (Great Britain), conducted research at West Virginia University and the University of Baltimore (USA).  On 27 July 2017, she became one of the winners of the competition to the Supreme Court of Ukraine. Our readers are eager to know: what was the motivation of successful practicing lawyer to participate in the competition to the Supreme Court? When I heard about this competition for the first time, I clearly understood that nothing like this has ever happened before in Ukraine. It meant that the judicial system has opened to the ordinary people. So I decided that if I didn’t take part in the competition, I’d never forgive myself, though as a lawyer I have never worked in the courts and never dreamt of being a judge. I prefer teaching or practicing law. My key area is legal consulting. Simultaneously, I felt that it is my chance to change something in this country. My friends convinced me to participate. I had a clear picture how the work of the Supreme Court is organized because I had worked previously at the Scientific Advisory Council there. In this regard, it is interesting to know about your personal impressions about the competition. What stage was the most difficult? As for me, I didn’t notice any serious distortions in it, though I did not get good enough results at the testing. I had a sense of inner opposition about this competition because there was a bunch of irrelevant questions, which have been criticized many times by other lawyers, academics, judges. My score was a mere 67. But this rather low result stimulated me to go further.  I would have liked clearer communication from the High Qualification Commission of Judges (HQCJ), a more public explanation about the methods and results of the exam. There was a contentious situation when the HQCJ announced the quantity of minimum scores for the testing, then for the written part. But later they announced a third cut-off rate for the exam as a whole when the exam papers were personified, giving rise to suspicions of dragging some persons further in the competition. Now some lawyers criticize the procedure of examination, namely that the HQCJ’s minimal passing score for the exam was lower than the one for persons who want to become judges of lower courts after finishing the School of Judges and passing a qualification exam.  I think that such an approach isn’t based on legislation and isn’t justified. Candidates to the Supreme Court should go through an utterly different procedure called “the qualifying assessment,” and their qualification should be estimated not only by the exam, but also by studying the candidate's dossier (the CV, application, main cases or publications) and the interview. For example, for a scientist, it was important how many books the candidate has written, in which conferences he/she has presented the thesis and so on. That shows a candidate’s qualification necessary for the Supreme Court, not a pure legal test with multiple choices. Nevertheless, I would like to say to people severely criticizing the competition, that I remember very well the time not so long ago when other methods of becoming a judge were prevailing, namely "take this sum of money and drop it off the named cabinet.”  

This practice doesn’t exist anymore? As you see, I have been selected to the Supreme Court, and nobody even hinted me about that sort of thing. I merely submitted my papers and got in. The Public Integrity Council (PIC) complained about some winners of the competition, whose lifestyle which is at odds with the information found in their e-declarations. For example, a candidate legally is divorced, but in reality, lives with his wife and so on. Is this the HQCJ’s failure or how one should understand this? Nowadays, we see how the former judicial system crumbles. If a candidate is divorced and showed the proper papers about this, but has a vacation with his allegedly divorced wife, there must be a strict reaction [which was missing - Ed]. I would like to add some words about the PIC, which includes professionals who I deeply respect. They were criticized by some people who do not know how the selection process of judges is organized abroad. It includes a deep and comprehensive study of the candidates. People haven’t got used to this in Ukraine.

The main benefit of this competition is that the judges’ way of thinking will be seriously reshaped and they have to face the fact that society will be assessing them, asking inconvenient questions all the time.

When the candidates decided to participate in the competition, they did not expect that someone would fact-check the information about their revenues/expenses. It should be noted that not only the judges faced such problems, the lawyers did also. If foreigners saw the online interviews with some candidates, they would be shocked. The judges abroad have a more scrupulous attitude towards their career. I think after this competition all the lawyers should constructively think about their trade. When one lives on public display as a judge, one needs to prove every day that he/she deserves to be a judge. One of the positive novelties in the Supreme Court is its diversified structure, which finally includes lawyers and academics besides judges. Will they be able to cooperate effectively at the Supreme Court?

We shouldn’t have the so-called “corporate solidarity,” the only corporation we have is Ukraine. 

It is going to be a difficult process. Outside Ukraine, where the judicial system is open, with its own psychology, perception of the legislation, this diverse structure is considered to be an asset. When the Supreme Court opens its doors to the notaries, attorneys, top officials, it will inevitably bring another understanding of the legislation. The perception of a lawyer working in a business environment will be different from the perception of the human rights activist. The Supreme Court must include people from all parts of the country, and this has been achieved  – we have candidates from Kharkiv, Odesa, Kyiv, and Lviv. As well, the gender balance is pretty even. From the diversity viewpoint, the results of the competition are not that bad. Certainly, there are problems with some judges. I did not work at the courts, so I don’t know a lot of them. One needs to carefully read their dossiers, the conclusions of the PIC and only then to make suggestions. People should be united around common values like zero tolerance to corruption, new technologies and the introduction of the new practices and work approaches. We are not going to hush up the truth about corrupt activities if we come to know of them. We shouldn’t have the so-called “corporate solidarity,” the only corporation we have is Ukraine. We have talked with other candidates to create anti-corruption programs for the Supreme Court in order to share them with other courts. Corruption doesn’t take place only when one is bribed, it includes a lot of things and the judges should be very well aware of them. There were candidates who, in interviews with the HQCJ, told about their malpractices without noticing that in fact, they were telling about their violations of the law. Considering your previous experience, what system should be built to prevent corruption schemes at the new Supreme Court? Firstly, judges must clearly understand what corruption is. If one charters a private plane and pays $100 for it, this is a clear sign of corruption - the charter does not cost that money. There should be clear rules as to when boundaries are overstepped. This is quite simple to see in the difference of revenues and expenses. There are dozens of investigations on the abuse of power by many top officials which go nowhere. Will this fight against corruption become another profanation? The National Agency on Corruption Prevention (NAZK) and the National Anti-Corruption Bureau (NABU) should work effectively. Ukraine has good laws, but the problem is that they don’t work. People related to anti-corruption practices should have no fear to reveal these cases. As for me, I criticized Poroshenko over the situation with his offshores and after that, I participated in the competition to the Supreme Court. Nobody gave me any trouble, proving that the competition wasn’t prejudiced. Maybe it would be better if the Ukrainian elite would start first? We [Ukrainians - ed] don’t understand when corruption starts. If something happens to a relative, everyone runs to settle this problem. Even when searching for a lawyer, the first question people ask is whether “he is able to deal with the court.” On 20 June 2017, the Verkhovna Rada adopted the draft law 6232 in the first reading, brought by the President regarding to the changes to the Procedure Codes. What are its main innovations? What ambiguities do you see that needs to be additionally stipulated? Firstly, the Supreme Court couldn’t work without these Procedure Codes because the former ones had been created for the old judicial system. What has changed? The principle of competitiveness as the chief factor of the judicial system has been introduced. Earlier, the judge was something like a medieval inquisitor but now he/she is going to be a referee. This would significantly expedite the judicial proceedings and bring it closer to the Western standards. Another innovation is the introduction of E-Courts, it includes the correspondence between parties electronically, along with questioning of witnesses and many more elements. I’d like to add also the simplified procedure of the judicial proceedings. It means that minor disputes in the range of up to a thousand of I’d like to add also the simplified procedure of the judicial proceedings. It means that minor disputes in the range of up to a thousand of minimal wages would be considered in an expedited manner and such cases would not be handed over to the Supreme Court. The conditions of the mediation are clearly set out. It is also a form of the judicial proceeding when the role of a judge is transformed into a mediator. As for the shortcomings, it is hard for me to comment because I am not a lawyer working at the courts. I would say that excessive regulation may cause some problems. The volume of the regulatory framework as of now is bigger than it was before, which is why it would be problematic for the judges to accept it. We are eager to change the style of the judicial decision writing and composition of the sentencing decision, focusing on the motivational part and not only to give the references to the law and say “I think so.” A judge should give clear explanations as to why one party loses and another one wins at the court. This will lead to reducing corruption. Judges who don’t have good skills to write the motivational part of the judicial proceeding would leave their posts. The same goes for IT-skills. You decided to go to politics in 2015 by running to the Kharkiv City council with Samopomich, moreover, you severely criticized Poroshenko for his offshore story. Did your political position at that time lead to problems during the competition to the Supreme Court? There was no pressure upon me because of that. It was quite interesting for me to cooperate with Samopomich in Kharkiv. A lot of respected people joined that party but I was not a member of it. I understood that politics is not my sphere in those elections. What I did not understand is the inertness of our fellow citizens and it was hurtful that too few people came to vote. Though we worked actively with the students, the voter turnout was pretty low.

  What about the President’s offshores? I must say that this confusing case became clear when all the documents on transferring the assets into the blind trust appeared. But at that moment when it had come to attention, there were some doubts, as there was no information about the blind trust. Later, Poroshenko’s lawyers informed that it was a preparation for this process. Probably [the scandal - Ed] was a failure of these lawyers and lack of information. Top officials in Ukraine are not accustomed to informing society about their actions. There was nothing wrong with that scheme but it should have been spoken of. Everything should be made public. All is need is a powerful information campaign towards different problematic issues. Little by little, this process begins to move, for example, recently courts had the position of Speaker Judges introduced, which will deal with media outreach. While preparing for the interview, I read a great number of critical reports regarding the reforms of the Ukrainian Bar Association, which prescribe that only certified attorneys can represent the client’s interests in court. What should thousands of existing legal advisers do now? Is the business in Ukraine ready for the transformation? Maybe it is wrong to put aside the professionals knowing well the situation at their firms? These issues are rather contradictory. The first thing we need to do is to eradicate corruption from the Bar. Everybody is in the know that it is not that difficult to buy an attorney’s certification. I don’t know when all this disgrace will stop. Overall, the system of an attorney monopoly is good, but at the same time, these must be people with perfect knowledge, not who purchased certificates. So we have a serious question about legal advisors, they have been working so much time and now what should they do? There must be tough reforms in this sphere. The Ukrainian Bar Association tries to implement new standards in this trade. Everything is so mixed up here, so I don’t have clear answers. When will foreign investors finally be able to say their rights are protected at Ukrainian courts, starting with the Supreme Court? Firstly, the judges at the Supreme Court should be appointed, after that, the Plenary Session should take place and so on. We need a year before the Supreme Court will be able to influence these processes by developing new practices and standards. And we have to understand that not so many cases go to the Supreme Court. Investors would bring money to the country when it has a strong economy, the judicial risks are not that important. What should be done with raiders? The courts alone would not stop that. We need notaries, police… I think that we will see the changes in a year or two. The judicial system has been going through purification. We need time to adapt to the changes. As you may see, there are 6,000 applications for the competition to the local courts. I have an optimistic outlook on these processes inside the judicial system.

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And: https://www.youtube.com/watch?v=CiRKW0swvwI