The Interaction of Courts and the Bar Should Be Built on the Principles of Independence and Mutual Respect

How has the war affected the legal sector in Ukraine, in particular the courts and the bar?

The war has undoubtedly affected the justice system: at the beginning of the war, some domestic courts were forced to suspend their operations due to active hostilities and temporary occupation. According to the State Court Administration, 12 court premises have been destroyed and 94 court premises have been partially damaged. At present, the majority of courts, including those located in de-occupied territory, continue to operate.

Formally, the introduction of martial law does not affect the process of administering justice. Moreover, the provisions of the Law of Ukraine “On the Legal Regime of Martial Law” stipulate that the powers of the courts may not be suspended during the period of martial law. However, in practice, ensuring the uninterrupted operation of courts during wartime is extremely difficult.

At the very beginning of the war, most courts were not administering justice; as a rule, only individual cases within criminal proceedings were examined. Open hearings were not even conceivable.

The most difficult period proved to be the transitional period from February 24 to April 1 of that year. During that time, courts were barely functioning, so lawyers had time to analyze changes in wartime legislation, provide free consultations, and engage in volunteer work.

It was of extraordinary importance that, from April 1, the Supreme Court resumed its work and continued to hear cases; in just the first half of 2022, more than 31,000 cases out of 54,000 pending were examined.

According to data from the State Court Administration, in the first six months of the war, courts adopted and submitted to the Unified State Register of Court Decisions more than 2 million rulings, and the number of decisions now stands at nearly 3.5 million, which demonstrates that courts are administering justice despite all the difficulties and challenges. By the end of 2022, courts were operating actively, scheduling cases for hearing, and issuing decisions.

At the same time, courts faced certain challenges — the consequences of military operations. Against the backdrop of constant blackouts, the problem of court backlogs became more acute, and it is currently very difficult to identify ways to resolve it definitively. Court staff in such a situation are objectively unable, regardless of their willingness, to carry out a significant number of actions that are directly dependent on a stable electricity supply. Under such conditions, it is extremely difficult to distribute cases, conduct and record court hearings, and enter decisions into the register within reasonable timeframes.

Undoubtedly, all of the above-mentioned changes in the judicial branch of government have driven the transformation of private legal practice.

During March and April 2022, the participation of lawyers in court hearings was suspended. A significant number of lawyers — both those who are members of law firms and partnerships and those who work at enterprises — were forced to switch to remote work. Business relocation also had a substantial impact on the legal market, as certain enterprises terminated their relationships with the legal companies that had been serving them.

Subsequently, in the summer of 2022, the situation improved somewhat. Most courts were once again able to ensure that lawyers could participate in hearings both in person at court and by videoconference. Gradually, the usual volume of work was restored for lawyers.

The legal market is directly dependent on the current state of the economy and the mood of business and investors. And it can be assumed that it is now going through the most severe test in the history of Ukraine’s independence. But a crisis changes the structure of the market — a kind of crisis-driven “natural selection” is once again taking place: for some companies, the crisis has served as an impetus for growth, while for others, unfortunately, it has become a reason to cease operations.

Since the beginning of the war, some lawyers have become volunteers and participants in charitable foundations whose activities are aimed at supporting the Armed Forces of Ukraine, internally displaced persons, and those affected by the hostilities. Lawyers from different, often even competing companies have begun to unite in order to implement joint initiatives. Working together on improving and developing the volunteer movement, holding charitable events, and engaging lawyers in socially significant projects have made the legal community even more cohesive. Individual lawyers have joined efforts to provide free consultations to internally displaced persons.

In order to keep a law firm at a high level, it was necessary to support and retain the team, maintain high standards of client service, ensure proper planning, and constantly monitor changes in legislation.

In your opinion, what path should judicial reform in Ukraine now take?

Judicial reform is one of the fundamental requirements that Ukraine must fulfill in order to become a full member of the European Union.

The directions of judicial reform have changed repeatedly since 2014, yet in terms of outcomes, most initiatives have not produced the expected results.

First, it is necessary to build an independent judicial system, as provided for by the Constitution of Ukraine — something that has not existed over the past thirty years of independence. The authorities have always sought to subordinate the judicial branch and bring judges under their control through the simulation of successive judicial reforms.

Second, it is necessary to focus on issues relating to the functioning of the courts that have not yet been definitively resolved by any of the reforms: insufficient funding, staffing shortages, and the absence of full independence of the judicial branch.

Of extraordinary importance in the current environment is the maintenance of stable communication between the various levels of the judicial system and the incorporation of recommendations from higher levels, since the stability of the entire system as a whole depends on them.

Is it necessary to reform the Constitutional Court of Ukraine?

I believe it is.

The idea of reforming the CCU is not new; attempts to reform it in recent years have been the subject of debate, particularly regarding the selection of judges.

One of the most recent attempts to influence the functioning of the CCU was the adoption on December 13, 2022, of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Improvement of the Procedure for the Competitive Selection of Candidates for the Position of Judge of the Constitutional Court of Ukraine.”

The law proposes, through amendments to the Law of Ukraine “On the Constitutional Court of Ukraine” and the Rules of Procedure of the Verkhovna Rada of Ukraine, to establish a special body — an Advisory Group of Experts — and to involve it in conducting the competitive selection of candidates for the position of judge of the CCU. It is expected that this body will assist the entities that appoint judges in evaluating the qualities and competence of candidates for the position of judge of the CCU.

The explanatory note to the relevant draft law No. 7662 of August 12, 2022, emphasized that the implementation of the reform introduced by the law would make it possible to ensure a transparent, competitive selection of candidates for the positions of judges of the CCU.

At the same time, according to the conclusions of the Venice Commission, the document required further revision.

I would once again emphasize that this is not the first attempt to reform the procedure for selecting judges to the CCU. The said procedure was already amended in 2017, with the adoption of the Law of Ukraine “On the Constitutional Court of Ukraine” dated July 13, 2017.

On multiple occasions, the Venice Commission has expressed its observations on draft laws directly relating to reforms aimed at enhancing the independence of the CCU.

At present, it can be stated that the problems associated with reforming the status of the Constitutional Court of Ukraine and the selection of CCU judges remain unresolved. This issue, notwithstanding the existence of a significant number of no less pressing problems, must be given due attention.

In order to avoid repeating past mistakes, the reform of the CCU must take place in strict accordance with European standards and the recommendations of the international community.

What is your view on the liquidation of the District Administrative Court of Kyiv?

On December 15, 2022, the Law of Ukraine “On the Liquidation of the District Administrative Court of the City of Kyiv and the Establishment of the Kyiv City District Administrative Court,” adopted on December 13, 2022, entered into force.

Unfortunately, the use of such an extreme measure indicates the state’s inability to influence the resolution of the situation that had arisen in any other way. In other words, it amounts to an acknowledgment that the state, through the relevant institutions, was unable to prevent the negative manifestations in the court’s activities in a timely manner or to take steps aimed at ensuring the independence and impartiality of the court. The liquidation of the District Administrative Court of Kyiv was driven by a loss of public trust in the judicial branch, and the failure to take timely action to preserve that trust is an indicator of the ineffectiveness of state action.

It is no secret that even prior to this, the District Administrative Court of Kyiv had not always been able to ensure the timely examination of cases due to its workload. In my conviction, the liquidation of the District Administrative Court of Kyiv gives rise to many problems that the High Council of Justice, the President of the Supreme Court, the State Court Administration, and the High Qualification Commission of Judges need to resolve in the shortest possible time, so that the court can begin operating as quickly as possible.

I am confident that the reformed High Council of Justice and the High Qualification Commission of Judges will be able to achieve this goal.

On what principles should the interaction between courts and the bar be built, and what is the actual situation in Ukraine?

The interaction between courts and the bar must above all be built on the principles of independence, on the inadmissibility of one sphere interfering in the other, and on mutual respect.

These principles are theoretical and may seem general in nature; however, in practice their implementation is quite straightforward and finds its outward expression in ordinary things. The said principles are observed when lawyers do not miss hearings in cases without valid reason, and when judges take all possible steps to prevent the prolongation of proceedings, avoid groundless adjournments, and provide the parties with all necessary information.

The discipline of the participants in proceedings and observance of reasonable timeframes are the finest expression of effective interaction between the judicial branch and the bar.

The protection of the interests of the parties to proceedings depends both on the activities of lawyers as representatives of those parties and on the court, though courts nonetheless play a somewhat greater role in this regard.

Organizations such as the State Court Administration and the National Bar Association of Ukraine play a significant role in the interaction between courts and the bar. For example, within the framework of cooperation between these organizations, a Memorandum of Cooperation was at one point signed, aimed at integrating the capabilities of the Unified Register of Lawyers of Ukraine into the subsystem of the Unified Judicial Information and Telecommunications System known as “Electronic Court.” The Memorandum was signed with the aim of simplifying access to electronic justice.

It is a positive development that joint legal events are held, organized by the AUL, AAU, and other associations for the purpose of exchanging experience and views on resolving various problems. For example, the American Bar Association (Chicago Bar Association) includes judges and prosecutors among its members.

What benefit do lawyers bring to society?

In general, beyond providing quality legal assistance and the effective protection of violated rights, the following areas of a lawyer’s activity that are beneficial to society can be identified:

— conducting explanatory events for citizens on fundamental legal matters that commonly arise;
— participation in the development of normative legal acts, and where it is not possible to directly influence their development — the preparation of comments and observations on already drafted proposals;
— support for scholarly work and the results of scientific research, as well as conducting independent research;
— forming and developing a qualitatively new culture of providing legal assistance;
— introducing the experience of foreign colleagues and representatives of international organizations;
— shaping judicial practice.

In my view, the more lawyers there are in general, the more experienced lawyers there are, and the fewer drivers, security guards, and restaurateurs there are in the legislative body, the healthier society will be and the more professional and high-quality the laws will become.

Is it important for a lawyer to obtain education in fields other than law, and to take courses for developing soft skills?

A fairly widespread view holds that lawyers who have more than one higher education degree — among which an economics degree is typically highlighted — and who speak foreign languages fluently are more highly qualified. Of course, proficiency in English, and not only English, is a must for the modern lawyer. At the same time, for a lawyer of any age and any specialization, the most important skills are also those that may seem simple at first glance: the ability to think, analyze, identify patterns and connections, and so on — the presence or absence of which quite often does not depend on which educational institution a person attended or in which field or fields they graduated.

Important in a lawyer’s work are not only professional but also personal qualities, such as initiative, creativity, principled conduct, perseverance, resourcefulness, a striving for justice, and the ability to make decisions in unstable conditions.

At the same time, if for a young lawyer the need for self-improvement and personal development is of primary importance, then for a lawyer with significant work experience the desire to acquire new knowledge and skills is not enough — their activities, I am convinced, must be directed first and foremost toward helping those who need it.

All of the qualities and aspirations mentioned above are for the most part acquired in the course of practical activity and do not depend on the number of specializations a person has obtained or their particular direction.

Communication skills also play a considerable role for a lawyer — and these, again, are not always conditioned by the availability of additional education.

Each legal professional usually understands for themselves what new knowledge they wish to acquire and which skills they wish to improve. In my view, it is precisely from this starting point that a legal professional should choose the path of improvement and development to follow — for example, by taking a particular course or attending a series of seminars.

University education helps us become resilient and disciplined, and to learn to work with large volumes of information — but this is only a foundation, and therefore a higher legal education alone is generally sufficient as a base.

Has the war changed your daily routine — both professional and personal? How do you maintain relationships with clients amid the energy crisis and other wartime challenges?

The war has significantly complicated the work of both myself and my colleagues. We are all forced to adapt to the circumstances that have arisen and to spend more time completing routine tasks. The simplest things, which at first glance may seem trivial — such as sending documents by postal mail, clarifying information on cases, monitoring information on the official websites of government authorities, and so on — which previously took only a few minutes, now require considerably more effort and time.

Even staying in contact with clients and colleagues, given the disruptions in electricity supply, is quite difficult.

In addition to these problems, the issue of the personal safety of staff and clients has become more acute, as has the movement of clients both within Ukraine and abroad, and the reduced attractiveness of the Ukrainian market for business.

In my view, in the situation that has developed, the most important thing is to show clients that you are prepared to work with the same dedication as before, regardless of any difficulties or obstacles.

Our company’s office continues to function and has practically not stopped its operations, and lawyers continue to provide services and to assist in restoring clients’ violated rights.

This autumn, your company underwent significant changes — a new partner joined, a banking and financial law practice was established, and a private clients practice was launched. What has driven these reforms?

Indeed, in the course of our continuous development we seek ways to improve, and all of these changes are driven by the desire to strengthen the international and transactional direction of our work, which at present is an extraordinarily promising area.

In addition, the military aggression of the Russian Federation has created a need to represent the interests of our clients in international courts and in the national courts of various countries.

Having highly qualified specialists within the firm who understand such industry-specific matters is a significant advantage in the legal market. For every company, over time a stage of development arrives at which its employees become interested in deepening their knowledge and gaining new practical experience in specific, narrowly focused areas, and in transforming their specialization in order to maintain their interest in their work.

Since the beginning of the year, our law firm has expanded its cooperation with private enforcement officers and notaries, which undoubtedly makes it possible to provide the full range of services to our clients.

In January 2023, your company will celebrate its 10th anniversary. In your view, how is the success of a legal business measured? What are your plans for the future?

The success of a company always manifests itself in different ways and depends on many things. No rankings can objectively assess the level of success of a law firm.

First, it depends on how effectively the company manages to protect the rights and interests of its clients. Into the criterion of “effectively” I put many indicators: a positive outcome for the client, achieved creatively and promptly. Reducing a client’s losses, restoring their rights, and rebuilding their reputation are of paramount importance to a company that provides legal services to clients. The client’s success and the successful resolution of their matters or problems become the company’s success.

We are proud of the fact that we are shaping judicial practice, winning case after case and preserving those victories at the Supreme Court.

In general, I have always had great respect for those lawyers, advocates, and law firms that work toward achieving a final result.

Second, the success of a legal business is measured by the creativity and novelty of ideas, since clients, when approaching companies, seek to receive unconventional advice — and the company that can provide it will always stand out from the rest.

Third, a measure of success is stability — the company’s ability to successfully hold its ground even in difficult times: during a pandemic, under martial law, and so on.

What goals do we set for ourselves as we look back on the path we have traveled? They are, without question, to continuously develop and improve, to preserve our team and expand it, and to continue providing quality assistance to every client.