A shortage of judges in Ukraine helps even murderers avoid responsibility

A shortage of judges in Ukraine helps even murderers avoid responsibility

In June 2023, the Dnipro District Court of Kyiv found the former head of the Kherson Regional Council, Vladyslav Manger, and his aide Oleksii Levin guilty of ordering and organizing the attack on civic activist Kateryna Handziuk.

She died in the hospital after the attack. The defendants’ lawyers filed an appeal to challenge that verdict. After a year of proceedings in the appellate court, they managed to hear the complaints and change judges several times. In fact, there was no substantial trial activity during that year, notes ZN.ua.

Kateryna’s father, Viktor Handziuk, believes the slow pace of the appellate hearing could lead to the case being simply closed if the statute of limitations for holding the guilty to account expires. Viktor Handziuk’s concerns are not unfounded, because both the case about the attack on his daughter and many other cases in Ukrainian appellate courts are moving slowly due to a significant shortage of judges. In some appellate courts, one judge has up to 3000 cases per year, and in some courts only four judges remain handling appeals.

Why did this happen? There is no simple answer. So we decided to investigate the issue step by step, starting from one specific case, asking lawyers, prosecutors, judges, officials of judicial self-governance who appoint and dismiss judges, and members of parliament. They all understand the problem but sometimes see different ways to solve it.

The investigation of the attack on Kateryna Handziuk — a story about an exception, not the rule

Every New Year’s holiday, or when the first snow falls or the trees bloom in spring, Viktor Handziuk, a doctor at a hospital in Kherson, writes letters to his daughter Kateryna. He posts them on social media and adds photos where his Katia is smiling and missing her baby teeth, or the little girl’s whole head is covered with huge bows… and then a photo of Katia all in bandages after the attack… Sometimes he posts a photo of his daughter’s gravestone — Kateryna Handziuk, a Kherson activist who died on 4 November 2018. At the end of each letter Viktor Mykhailovych adds that he misses her.

facebook/Viktor Handziuk

Kateryna Handziuk was born and raised in Kherson. She was a city council deputy, an adviser to the mayor, volunteered when 2014 Russia launched the war in Ukraine — helping displaced people and the military. She also spoke out against deforestation in Kherson region. In 2018 Ukraine there were several attacks on civic activists; Kateryna was among the victims.

On 31 July 2018 she was doused with sulfuric acid right outside her apartment entrance. She suffered burns to 40% of her body. Four months later Kateryna Handziuk died in the hospital. The attack on the woman and her death halted the wave of attacks on activists.

The investigation and bringing the case to court became possible primarily thanks to Kateryna’s friends, who created the initiative "Who Ordered Katia Handziuk?" and kept reminding law enforcement that they demanded justice for their friend’s family. Before and after the attack on the Kherson activist, none of the related cases had ended in a court conviction. Moreover, this is perhaps the only high-profile case in the history of independent Ukraine in which perpetrators, intermediaries, and organizers all received sentences.

In 2019 the court sentenced four perpetrators and one organizer of the attack on Kateryna to terms of three to six years. They pleaded guilty and reached plea deals. And only five years after their sentencing did the Dnipro District Court of Kyiv issue a verdict for former head of the Kherson Regional Council Vladyslav Manger and his aide Oleksii Levin. The court found them guilty of ordering and organizing the attack on the activist, which caused her death. The sentence pronounced by the judge was ten years in prison for both.

The lawyers for Manger and Levin filed an appeal to challenge the sentence. The first appellate hearing took place in November 2023. At that hearing one of the judges declared a conflict of interest, and the next panel scheduled the session for February 2024. In June of this year, a year after the verdict was announced, six appellate complaints were read at the hearings in the case.

Appellate cases in Ukraine are heard by three judges. In the case of the attack on Kateryna Handziuk, one judge, who turned 65 years old, retired. This is a normal and predictable situation fully in line with Ukrainian law. When a new judge replaces the retiring one on the panel, the court asks the parties, "Does the hearing continue from the point where the new judge joined, or do we start from the beginning?" The defendants’ lawyers answered that they want to return to the start of the appellate proceedings. That means everything they already read in court, Manger’s and Levin’s defense will read again.

"We are where we were a year ago. That is the biggest problem. Because time is passing," says Kateryna’s father Viktor Handziuk. "If they heard the case every day or every week, systematically and without delays, without breaks for air-raid alerts, there would be hope that we would meet the deadline before the statute of limitations runs out and the guilty would be punished."

Kateryna’s father Viktor Handziuk / Viktor Handziuk/Facebook

What does the victim’s father mean? Our Criminal Code defines crimes and the time limits for punishment. Ukraine has three judicial instances: first — district (local) courts; second — appellate courts, where one can challenge a district court decision; and third — the cassation court, that is the Supreme Court, which does not rule on the substance but interprets the decisions of the two previous instances and upholds or rejects them.

The decision the Dnipro District Court of Kyiv issued regarding Vladyslav Manger and Oleksii Levin was made under articles the Criminal Code considers grave. Serious crimes in Ukraine are investigated for ten years. If ten years pass and the investigation or trial is still ongoing, the person cannot be held criminally responsible.

We continue.

Being held accountable means a person is found guilty and assigned a punishment, and they begin serving that punishment in a penal colony (when someone says "sit in prison," legally this means precisely that). If an appellate court hears a case before the expiration of the statute of limitations, it later complicates closing the case on statute grounds in the Supreme Court. This is all very complicated and unclear for people outside courtrooms, but this is why Kateryna’s father worries.

Because if by July 2028 (when the ten-year term in the case expires) the appellate court for some reason fails to issue a decision, Manger and Levin, who are now in pretrial detention, may not be punished. The appellate court may uphold the Dnipro District Court’s decision and find them guilty, or it may say they are not guilty. But if the ten-year period allotted for consideration expires, the lawyers can file a motion to close the case because the statute of limitations for criminal prosecution has ended.

"They simply need to schedule hearings more often, to have time to consider Katia’s case," the father adds.

Where are the judges?

Another high-profile demonstrative case currently being heard in an appellate court is the shootings on Instytutska Street in Kyiv on 20 February 2014. In October last year the Sviatoshynskyi District Court of Kyiv issued verdicts for five former Berkut officers who served in the "black company" and were accused of the shootings on Euromaidan. Three of them are evading the court, while two live in Kyiv and attend hearings.

Currently the appellate court schedules hearings in that case two or three times a month. This is important to note in the context of the historical continuity of that trial. The Sviatoshynskyi court and presiding Judge Serhii Dyachuk heard the case over five years.

Given the large number of defendants, victims, witnesses, evidence and expert reports, such relatively fast proceedings were possible because hearings took place weekly — every Tuesday and every Thursday. Each side knew there was a schedule laid out a year in advance. And this is despite the fact that the criminal articles the former Berkut officers were charged under have no statute of limitations.

So why such a colossal difference in how often district and appellate courts schedule hearings? The answer is both very simple and very complex. There are not enough judges in appellate courts. As of August 2024 there are 1357 judicial positions in Ukrainian appellate courts, but only 643 judges are working. It is not hard to calculate that 714 judges are missing. In other words, more judges are needed than currently exist.

Vladyslav Manger and Oleksii Levin in the Kyiv Court of Appeal, 24 July 2024 / hromadske.tv

"Under a deficit of judges, complying with time limits set by procedural laws for case consideration is practically impossible, so it is important that courts adhere to reasonable duration of proceedings. This largely depends on a judge’s organization of work, on their ability to properly organize the process and allocate time. However, in certain regions a judge’s workload reaches up to 3000 cases, and therefore even the best managerial skills cannot ensure adherence to those time limits," says the Chair of the High Council of Justice, Hryhorii Usyk.

The High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ) are the two important judicial bodies currently pushing reform. The HQCJ runs competitions for judicial positions, and sitting judges or lawyers participate to become judges in appellate courts, the High Anti-Corruption Court, and later in the High Administrative Court. The HCJ appoints or dismisses judges by forwarding appointment or dismissal documents to the president, since the HCJ cannot do this on its own. The synergy of these two judicial self-governance bodies should staff Ukrainian courts with necessary and responsible people. But there is a catch.

Since the new HCJ began work in 2023, the Council has dismissed 155 appellate court judges. But it did not appoint new ones because the High Qualification Commission did not operate in Ukraine for four years. Parliament dissolved its previous composition in 2019. Because it is easier to break than to build, during the period without a new Commission there were no new competitions, including for appellate courts. The competition only began in 2023, when the HQCJ announced a contest for 550 vacancies in the appellate courts.

"The HQCJ is currently working under enormous pressure due to selecting judges for first-instance and appellate courts and simultaneously conducting the competition for the High Anti-Corruption Court of Ukraine. Currently appellate courts are short more than 700 judges; the influx of such a number of new highly professional, honest judges should change the face of the judiciary, ensure the successful completion of the judicial reform and make it irreversible," adds Hryhorii Usyk.

However, the competition for appellate courts is underway and, as Commission members said, is planned to finish in August 2025, while judges are already lacking. What to do? Chair of the Verkhovna Rada Committee on Legal Policy Denys Maslov notes there is one possible option, at least for now. "Plan B has long existed — allow the HCJ to temporarily second judges from first-instance courts to appellate courts. We saw this danger three years ago, so we registered draft law No. 6049.

I hope we won’t have to use this option and that the HQCJ will quickly complete the competition. But in some regions we are already on the verge of a halt. In the Sumy Court of Appeal, for example, out of 25 judges only four remain; in the Kharkiv Court of Appeal out of 60 judges — 14. A similar situation exists in Chernihiv region. And every day the situation gets worse," Denys Maslov explained.

The draft law Maslov mentioned was registered three (!) years ago, went through hearings in the Legal Policy Committee, and has not yet been put to a vote in parliament.

An iceberg with many peaks

The lack of judges in appellate courts is the main problem, but not the only one. Let’s count on our fingers — hopefully they will be enough.

Some judges who applied to the appellate competition in 2019 are now not doing so. They explain their decision, among other things, by saying the HQCJ changed the competition rules. "If previously you chose a specific court to which you submitted documents to participate in the contest, and then it was effectively a competition — you either won a spot in that specific court located in a particular region or you did not. In the current competition you choose only a jurisdiction — commercial, criminal, civil or administrative — and the rest is selected for you," says one judge who applied to the appellate court competition in 2019.

"Unfortunately, over all these years the bodies of judicial self-governance and administration have not developed clear and understandable career criteria for judges, nor unified approaches to scoring during qualification assessments and competitions. So this is effectively left to the broad discretion of commission members."

Judges in Ukraine were last appointed to appellate courts more than ten years ago. Most of them now have the right to retire. Since they work in panels of three for years, when one judge is preparing to retire the other two also begin to consider it, because there is no certainty that working with a new judge will be effective and productive.

The war and everything related to it

Andrii Dryshliuk, Deputy Chair of the Odesa Court of Appeal, explains that constant air-raid alerts in the city cause hearings to be suspended — either the judge announces a recess or the hearings are postponed. "For example, if a MiG-31K scramble is announced, the alert may last more than an hour, so the judge asks the parties whether to continue the hearing or postpone it. In the presence of a threat of ballistic weapon use, especially from temporarily occupied Crimea, a recess is unquestionably declared in the court session," Dryshliuk says.

The judge adds that power outages also affect how quickly and effectively the court works. Hearings must be recorded on video, and only when participants themselves file requests that a video recording is not needed does the judge decide to conduct a hearing without video. "Having a generator is not a panacea, because its capacity is insufficient to ensure uninterrupted operation of all courtrooms in an appellate court. Therefore, the number of adjourned hearings increases, which does not contribute to quicker case resolution," the judge adds.

For frontline cities and regions there is also the transfer of cases from one court to another, as happened in Dnipro. "During the full-scale invasion our caseload simply increased. The reason is a change in territorial jurisdiction of many first-instance courts in Donetsk and Luhansk regions, which are now heard by courts in Dnipro and the region. The number of appeals automatically increased as well.

Also, 22 judges from the Donetsk and Luhansk Courts of Appeal have been seconded to the Dnipro Court of Appeal. The vast majority of them are assigned to our court’s division in Kryvyi Rih. Before the war there was a catastrophic shortage of judges there and an excessive workload for those who worked. Nevertheless, the staffing shortage has not disappeared. The problem remains one of the most critical in the work of an appellate court in a frontline region,” says Natalia Derkach, Chair of the Dnipro Court of Appeal.

...Conclusions on "how to speed up the work of appellate courts?" are open. But, as often happens, time is working against all of us. The later new judges are appointed to work in appellate courts, the more slowly the existing cases there will be heard, and moreover, the more cases there will be. The fewer judges there are now, the more work falls on those already working. The war forces us not to think linearly, and sometimes you can see a generator on the street charging an eco-friendly Tesla.

However, one possible way to speed up appellate courts’ work could be prioritizing where vacancies are filled with new staff. That is, if we talk about Sumy, where the Court of Appeal has four judges, the competition for the Sumy court could start and finish earlier, meaning new judges could be sent there first.

We should also remember from the bitter example of this striking shortage of appellate court staff that when society demands reformatting, replacement of the composition, or liquidation of some body — be it a judicial self-governance body or some other — one must think several steps ahead. What will happen if that body does not work for a year? Or two? How to ensure an operational process for creating a new one? To whom should powers be transferred during reorganization?

Because today’s lack of judges in appellate courts is not only about reform, but first and foremost about people’s lives and their everyday problems. We know about the emblematic case of the attack on Kateryna Handziuk, but there are cases that receive less publicity and are also not being heard by large appellate courts.

Author: Tetyana Bezruk

Source: ZN.UA