Judges Training in Ukraine

31 March 2006

Larry Olomoofe

"Testing! I know what this is. It is just provocation….." Participant at judges training workshop held in Kyiv, Ukraine, November, 2005.

The European Roma Rights Centre (ERRC) conducted a series of European Commission (EIDHR)-funded workshops on the European Convention for Protection of Human Rights and Fundamental Freedoms (ECHR) in the context of the defence of Roma rights aimed at training Ukrainian county and high court judges in Kyiv, Ukraine, in November and December 2005. These unprecedented events were generally well-received initiatives by the local participants and provided the ERRC the necessary insights into major problems facing the judiciary in Ukraine. There was a marked difference in the attitudes between the judges who attended the first training and those that attended the second. The first group were more dynamic and engaging whilst the second group more reticent and unconvinced by the whole exercise. The attitude of the participants (with the notable exception of four judges) in the second training made the effect of the whole event quite dubious. But even with few participants who took genuine interest and requested more trainings of this kind, it was a worthwhile exchange with those most responsible for upholding the human rights principles. What follows below is a brief account of the two events and some of the vital lessons learned from the experience.

The quote at the beginning of this piece was made by a high court judge who attended the first training workshop. His view is mentioned here to indicate the overall sense of scepticism that the judges held towards the programme, generally, and the ERRC in particular. This scepticism was palpable on both sides, to be honest. We (ERRC CIS Officer Istvan Fenyvesi, the coordinator of the Ukraine project and myself) really did not know what to expect. We assumed that the judges would wonder why a couple of non-lawyers from another country would have the temerity to come to Ukraine and provide "training" on the interpretation of the European Convention on Human Rights. It sounds absurd even now. Therefore, we anticipated some hostility from the judges and felt that they were only attending out of some begrudging necessity and were deeply sceptical about the whole thing. Furthermore, we knew, that some of the content of our respective presentations would be challenged by the judges (we were proven right) and that we needed to make watertight presentations on various human rights approaches to monitoring, advocacy, and strategic litigation. We also anticipated that the judges would hold us in a scornful light because of the reputation of the ERRC as "trouble-makers" and because of the anticipation that we were there to hoodwink them and cause trouble.

The overall sense of foreboding did not ease until the opening introductory sessions were completed. This was the opportunity for us all to place our credentials on the table and explain our expectations of the workshop/roundtable session. Although the project description indicated that this was a "training" for judges, we couched the session as a mutual exchange of information where we (the ERRC and local partners) were bringing to the attention of the judges present some of the issues related to the execution of legal mandates in various European countries and how some of these acts of law, were actually violating the rights of some Romani people and communities across Europe. The strategy to 1.) Minimise the emphasis on "training" and 2.) Provide a pan-European perspective was a wise one. This helped to disarm the judges somewhat, but not entirely. There was still a significant amount of scepticism, a sentiment that was only really eliminated after a series of presentations by some Ukrainian lawyers, one of whom works at the European Court of Human Rights in Strasbourg. In these presentations, a number of issues were discussed and more importantly, explained highlighting their pertinence related to Ukrainian legal culture. Methodological approaches to collation of evidence in cases of discrimination and harassment were also explored, including the controversial (for judges) method of "testing" (explicated in more detail below).

Utilising a pan-European perspective entailed providing information to the participants about the situation of Romani communities throughout Europe and the fact that these communities often or always existed at the margins of society, as well as the fact that they also suffered entrenched forms of discrimination. The purpose of adopting this approach was to indicate that while Roma in Ukraine suffered intolerable levels of discrimination, it was not the only country in Europe that was guilty of this. In fact, to a greater or lesser degree, peoples and communities from the Romani diaspora, suffer some form of discrimination (institutionalised and personal) in every European country and it was important to indicate this to the participants at the workshop. Also, as a result of this entrenched discrimination, the European Union (EU) developed certain criteria for accession to the EU, including among others, legislative and policy measures to fight discrimination. This would be the condition that any subsequent application for membership to the EU by Ukraine would be considered under. Therefore, by addressing the issue at a relatively early stage in the proceedings, would mean that Ukraine could forestall any potential problems by making the necessary legislative revisions now instead of later. Also, the fact that a number of judges attended from different regions of the country, allowed them the opportunity for an exchange of experiences and suggestions on how to address certain phenomena related to Ukraine's Roma communities. Indeed, there was a variety of different opinions amongst the judges during the first workshop, and when one of them expressed avowedly racist comments about Romani people, he was quickly challenged and disavowed of this by colleagues (one in particular who abhorred the racist comments made by the judge in question). This was a positive outcome from the roundtable because of the fact that the views of this judge were challenged by a contemporary and he seemed to agree with the perceived wisdom of his colleague and they exchanged personal contacts so as to further collaborate/discuss, etc.

There was also the general acceptance that the situation in Ukraine needed to be addressed and that they (the judges) were to be actively engaged so as to facilitate the claims of Ukraine for EU membership. This, they felt, was their duty. Effective enforcement of good anti-discrimination law would set Ukraine apart from other EU countries that have as of yet failed to transpose the EU Race Directive (Germany for instance). Bearing all of this in mind then, we provided insights into methods that will allow for the effective enforcement of anti-discrimination legislation in Ukraine by highlighting the various principles of the EU Race Directive, paying particular attention to Article 8 (shifting the burden of proof to the respondent). In our presentations, we emphasised the importance of this legal provision and illustrated the point providing a recent example of a Romani man from Bulgaria who won a case for discrimination in employment relying on Bulgarian anti-discrimination law which had incorporated this provision.¹ Testing was presented as a useful method that could help judges determine whether discrimination had taken place. This suggestion drew the response from the judge that starts this article who suggested that he "knew of this method and that it was simply a mode of provocation". Whilst not disagreeing with him I stressed that bad testing could be a mode of provocation and entrapment and if that were the case, then as a judge, he had every right to rule against it. However, what we described was a method of testing that was conducted adhering to the principles of good data collation that could be independently verified and easily corroborated.

The discussion continued, drawing a number of responses from others present and the conclusion was that they could accept evidence in cases of discrimination where the method of testing had been used.

Despite this relative flashpoint, the workshop was ended in a convivial tone and the participants were happy that the event had taken place. The second workshop was very different and could be considered to be the complete inverse of the first. This was a rather chastening experience since the enthusiasm built up from the first workshop in November was completely dissipated during the second event in December. All the old perceptions that had been dispelled during the first workshop became current again and the efficacy of the training is/was debatable. It is true to say that much work needs to be done in Ukraine involving judges and lawyers. Perhaps it is a good thing that we had the jolt of realism during the second workshop in December. Having been led into this somewhat false sense of security during the first workshop, we suddenly realised that things would not be that easy for us. And so it is proving. The sense of foreboding and scepticism prevails today and although the workshops were received very differently by both sets of judges, they still raise our hopes for the future.

Suspicion is the phrase that best characterises the nature of training initiatives such as the ones conducted last year among this group of legal professionals. This may have been the case at the outset, but at least in the case of the first training, not so at the conclusion. The first training was characterised by a sense of collegiality and camaraderie. The judges were pleased to have been invited to attend the session and requested more of the same in the future. This is a good precondition for carrying on this type of work in the upcoming months and years. It is always easier to work with allies from within than simply attempting to change things from the outside. This much is true in Ukraine.

Endnote:

1. This is a reference to the Assenov vs Lubimka Ltd. ruling in Bulgaria in November 2005. This isa case of alleged discrimination against Mr. Assenov in his attempts to find employment at the Lubimka Ltd company. The judge ruled in favour of Mr. Assenov and stressed that his judgment was based upon the shift of the burden of proof. For more details about this case, please see http://www.errc.org/cikk.php?cikk=2415.