Responsibility vertical

Though their progress may be unsteady, Ukraine’s judicial and criminal justice reforms are underway. President Viktor Yanukovych says these reforms can’t be delayed, for this would mean “not only protracting Ukraine’s commitments toward the Council of Europe, but also — and most importantly — failing to protect all Ukrainian citizens against the arbitrary rule on the part of enforcement and criminal justice authorities, making it impossible for the man in the street to defend his constitutional rights.”

The following is an exclusive interview with His Honor Leonid FESENKO, head of the Higher Specialized Court of Ukraine for Civil and Criminal Cases.

What does being a judge mean? Is this a vocation or just another job? What made you take up this career?

“I made this choice when I was a kid. I happened to spend eight years at a [Soviet] boarding school. The relationships between the pupils and the teaching staff varied, but one was constantly aware of the pressing shortage of justice. It was then I made up my mind to become a judge, to help law and order reign supreme, to ward off anyone trying to encroach on either.”

You didn’t want to become a cop or prosecutor, you wanted to become a judge, is that right?

“That’s right. After graduating from the Institute (i.e., Kharkiv’s Institute of Law — Author) I was first an intern at the court of law in Kamiany Brid court, then at the Leninskiy raion prosecutor’s office, both Luhansk oblast, where the district attorney was Hryhorii Vorsynov — a prominent lawyer who would eventually become Prosecutor General of Ukraine. The man saw that I liked the job. He told me: ‘I’d yet make a real prosecutor out of you.’ He kept saying I should stay in my position, under his guidance. Yet I was stubborn and I wasn’t afraid to reply in the negative. I told him I wanted to be a judge. I did become one. In April, while still a [law school] student, I was elected judge, before I took my exams at the Institute in July. I spent six years in that rank and position, considering that I had a great teacher, His Honor Dmytro Prokopovych Antonets, WW II veteran (God rest his soul!). His was an outstanding personality and he was the one to mold me into my judicial shape. Later, I worked for other organizations, at higher-instance courts. I’ve dedicated five years to the Verkhovna Rada (VR). Now I’m once again a judge.”

The way I see it, you feel more like a judge than a member of Parliament. Is that right? Also, what about that moonlighting scandal?

“There was nothing I could do about the situation. I acted in strict accordance with the law. I had tendered my resignation [as MP], as soon as I had been elected judge of the Higher Court, and had it duly registered at that same date. I thought I’d made my choice formally known, yet the Verkhovna Rada kept stalling, never passing a resolution. In the end, I asked Speaker Volodymyr Lytvyn to help resolve this issue during a VR session. I knew only too well that running with the hare and hunting with the hounds was against the law. He responded by telling me about the VR bursting at the seams with top-priority bills, but promised to help me. But then the press came thundering in. I mean, there was nothing I could do. I couldn’t resign from my post because I’d been assigned to it by the Verkhovna Rada, just as I couldn’t miss VR sessions because I was sill formally a member. There were heaps of case files at the court. You must know that we started forming the Higher [Civil and Criminal Cases] Court from scratch. Then came the scandal.”

Could you endorse an unjustifiably severe verdict?

“Before passing judgment, I carefully study each case, to make sure the proceedings were started on a legitimate basis. After that I check the legitimacy of every procedure. Above all, I look for valid evidence. In the end, I have no reasonable doubt in passing my judgment. If I have any doubts, there will be no judgment, only a statement indicating these doubts, and then I submit the case for further investigation. Afterward, when the case is returned for hearing, most of such doubts are dispelled. Legal punishment is another matter. Almost every article of the Criminal Code allows a range of, for example, 8 to 15 years. How many does a given criminal actually deserve? I’ve handled cases that spelled capital punishment [during Soviet times]. Just try to picture the burden of my responsibility. Well, I have passed judgment severely, without remorse in cases involving extreme cruelty, first degree murders, child rapes. I have never shown any clemency for such scum, yet every time I read the verdict, after years in office, I couldn’t keep my voice steady. Scum as they were, they were human beings. Who was I to send them to their death?”

There is a bill registered with the Verkhovna Rada. It reinstates capital punishment. Would you vote for it?

“I think that capital punishment should be reinstated in Ukraine. Frankly speaking, I’ve always supported the idea, because monsters in human form deserve it. We often hear about man being created in the Lord’s image, that this precious creation shouldn’t be encroached in any way. What about such images murdering others, with inhuman methods? We give them 20-30, up to 40 years, and keep them at the taxpayers’ expense. I might as well tell you that quite a few of those sentenced to life would prefer capital punishment.”

There have been cases when innocents were killed.

“Errare humanum est — to err is human. Unfortunately, mistakes are made in every field of human endeavor. Although no such errors should be allowed in the field of justice, they happen. I remember Kharkiv’s district court sentencing two Malyshev Works engineers to death. Later, both were proved innocent. Horrible. Still, I am all out for capital punishment.”

Have you passed any judgments which would later make you feel ashamed of yourself?

“No, God be praised. As I’ve said, I started as a judge with the court of law in Kamiany Brid. None of my judgments were overridden in the six years of my office there. When I was recommended for the post of head of the regional justice department, Volodymyr Zaichuk, the then minister of justice of Ukraine, simply couldn’t believe it. But that was true. At this point I should once again pay homage to my teacher who taught me these simple secrets of our profession: stay honest, stay just, act by the law.”

Ukraine is accused of persecuting certain prominent figures from the previous regime, and that the current court proceedings are “selective.” Would you care to comment on this?

“There is no ‘selective’ adjudication in this country, simply because the cases you apparently have in mind have never been legally submitted. If and when they are, each such case will be dealt with in keeping with set procedures — and these procedures apply to all Ukrainian nationals, without exception. I personally believe there is no political persecution in Ukraine. After the end of pretrial investigations, the courts of law will duly assess the resultant evidence and pass rulings. At this stage, contrary to certain political-persecution allegations, the [Ukrainian] judicial system has nothing whatsoever to do with any of these cases.”

Has the recent reform made Ukraine’s judicial system any better? Is there anything still to be done, in your opinion? Should Kyiv listen closer to what the Venice Commission has to say?

“I would say that our judicial system has become more accessible to citizens who want to have their rights protected. Previously, there were also specialized courts, such as the Economy Court, Administrative Court, and Supreme Court. This system made ordinary people’s lives difficult, as the man in the street had greater problems filing a complaint with a given court of law. Now they have this Higher Specialized Court of Ukraine for Civil and Criminal Cases, a result of the judicial reform. Apart from better public access, this court allows to correct previous judicial mistakes. As for various judges interpreting certain legal rules their way, there is the Supreme Court. Its rulings resolve such issues and can influence the outcome of lawsuits and criminal trials.”

How would you describe today’s underworld, the way you see it from the courtroom?

“Evolution has its effect on the underworld, with criminal offenses changing their structure, and some becoming legit. Today, there is no legal punishment for vagrancy, gambling. However, the key distinction is that the current underworld is operating on a higher professional level; they have the latest cell phones and computer models. It has become very difficult to investigate various financial fraud cases. Back in the 1990s, when [former USSR] property was being redistributed, Ukraine gained national independence, yet it never became independent of the post-Soviet underworld which had then actually taken over Ukraine’s politics. Heinous crimes were committed, killing hundreds of young people. Later, crimes became less violent, with business fraud topping the list. Technological progress had produced a new kind of criminals, people versed in computer soft- and hardware.”

Is it true that Ukraine’s jails and detention cells currently have more inmates than back in the ill-fated year of 1937?

“I wouldn’t say yes, but it is true that we’re having big problems there. Especially in terms of detention cells; there are far more inmates than allowed under regulations. There are several reasons. First, the cases take longer to be investigated than required under the law. Some inmates spend long terms without being indicted. They suffer imprisonment for no legal reason. Ukraine’s Ombudsperson Nina Korpachova broached the subject recently, saying the situation appears very complicated, especially in regard to the inmates of the Kyiv detention cells. Therefore, the Ukrainian courts of law are faced with the task of stepping up such investigations — above all by replacing the good old Soviet arrest procedures by preventive alternative means, like bail. Our courts are reluctant to adopt this approach, but the Higher Specialized Court of Ukraine for Civil and Criminal Cases is duly authorized to introduce precisely this practice. I have emphasized the fact at all professional briefings, including those in the regions. I think the situation will eventually improve.”

The sad fact remains that the Ukrainian in the street keeps holding all our judges in very low esteem, very much in contrast to the public attitude in the United States. What do you think should be done to make our people respect our judges not only for the powers vested in them, but also for their wisdom and incorruptibility?

“We have to work on this. Unfortunately, our judicial system had been practically destroyed during the five years before the current administration came to power. Back then every judge acted the way he pleased, including with the rulings on hostile takeovers or land allotments in the Crimea. All this ended in chaos. As a result, Ukrainian judges have public ratings that best be forgotten. We must start by improving the pubic image of our courts of law. This calls first for a higher individual professional standard and a sense of personal responsibility. This can be accomplished only in the presence of a truly effective, sufficiently centralized government, when genuinely efficient judges can be appointed to their respective posts. I am sure that precisely this system will be implemented in Ukraine, and that it will prove effective. A month ago, the president of Ukraine signed a law that upgraded the procedures of assignment of judges to their first posts. This law also has clauses relating to professional training. I also intend to propose amendments to the legislative acts providing for administrative appointments within the judicial system. Thus, the head of a regional court of appeals has first-hand information about the performance of all judges. Who would be a better choice for appointing heads of oblast, raion and city courts? Being head of the Higher Specialized Court of Ukraine for Civil and Criminal Cases, I keep analyzing and know all about the performance of the courts of appeal, so who can now better than I handle such personnel? This is the way a responsibility vertical should be built in the judicial realm. Should I recommend the wrong man, I will suffer from my irresponsibility. Courts of law aren’t made for judges; they are meant to keep their doors open for citizens who come to file their complaints and expect fair judgment.”

What about logistics in the Ukrainian judicial sphere? Do our judges have enough computers and other technologies?

“The government’s attitude to the judicial authorities dates back to the Soviet period, with the courts more often than not being allotted some kinds of barracks, premises absolutely unfit for judicial proceedings. Regrettably, the situation hasn’t changed much since then. Our courts of law remain in a very complicated situation, in terms of equipment and material supplies, although the law currently in effect sets a high technology standard for courtrooms and judges, notably with record-processing software. The latter could considerably lower the level of corruption. As it is, current legislation is getting way ahead of the actual capacities. Whereas this law is in effect, none of the judges have access to such technologies, with some of the judges being reduced to living in barracks… We’re getting none of the budget appropriations that we should. People who want justice come to us, but when they see a pigsty instead of a modern-equipped prosecutor’s office, they figure out the worth of our justice and what the court ruling will read. I believe that this judicial reform will also help solve these problems, considering that it is being implemented in conjunction with other reforms, including the economic, as laid down in the action program of the current president.”