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15.12.2003

The access to justice.

   

Moderator: Olena Volochay.

Plenary report: Igor Koliushko.

Participants of the session:

Oleksiy Kasyan, the President of the all-Ukrainian Independent Association of Judges, the Appeal court, Kyiv. Some aspects of the access to justice.

Arkadiy Bushchenko, the KhG. The access to court of the detained and arrested.

Valeriy Bartash, the Sevastopol human rights protecting group. On the problems of guaranteeing the right for the protection from the criminal accusation and the representation of interests.

Oleksiy Svetikov, the head of the Lugansk branch of the VCU. On the participation of citizens in the assessment of the work of judges.

Nine conferees took part in the discussion.

Five basic aspects of the problem of the access to justice were emphasized in the plenary report: informing the public; the effective system of legal aid; simplification of court procedure; acceleration of court process; optimization of court costs. Judge Oleksiy Kasyan, advocates Arkadiy Bushchenko and Valeriy Bartash mentioned several other aspects: the access to court of the detained and arrested, guarantee of the right for defense, guarantee of the presumption of innocence.

The idea exists of the creation of informational centers in every court, where citizens should be able to get the aid in the form of booklets, brochures and questionnaires, to learn about the order of the work of the court. This idea is considered now by the State court administration.

The access to court decisions is also problematical. One of the ways of the solution of this problem is the publication of all court decisions (except the verdicts issued at the closed trials) on the web pages of the corresponding courts. Yet, for the realization of this idea it is necessary to solve the question about the principles of the search system. Besides, the balance must be reached between the access to the decisions and the right for privacy. In the nearest future the realization will begin of the project of the creation of the Internet gantry, which will solve these problems.

The problem of the effective legal aid exists in all states, especially poor ones, like Ukraine. The lion’s share of the population does not resort to the services of professional advocates since they cannot pay for these services. MP Zadorozhny prepared the law draft on the state gratuitous legal aid, but this draft was rejected, because it was a priori obvious that the mechanisms envisaged in the draft would not work. Now the Ministry of Justice is preparing the new version of the draft of the law on the gratuitous legal aid.

In order to simplify the court procedure, the draft of the Civil-Procedural Code introduces the new institutes, such as the court errand (borrowed for the German experience). The authors of the draft hope to shorten the number of court cases approximately for one third. The draft of the CPC also envisages issuing a court verdict in the absence of the parties (after the notification and search of the parties). As to the acceleration of court process, it should be noted that the role of the preliminary court sittings should be increased.

The problem of financing the court activities is extremely important. Now a citizen, who turns to court, must pay for his every step: state duty, getting the court decision, copying the decision, copying the extracts from the case materials, transcript of the sittings, expertises, etc. All these expenses must be paid from the state budget, but that is impossible today. The group that is working at the draft of the CPC proposed to introduce the procedure to the civil process, which procedure already functions for several years in the economic courts: the advance payment by the court administration for the informational and technical maintenance. This idea is partly endorsed by MPs. The section “Court expenses” of the CPC will be discussed during the third reading of the draft.

The participants of the conference pointed out the drawbacks of the operating laws concerning the detention and arrest, as well as the realization of the right for defense at criminal accusation. They also criticized the corresponding norms of the draft of the Criminal-Procedural Code. The opinion was expressed that the drafts of the procedural codes did not agree with the norms of the international agreements signed by Ukraine, so, the Ukrainian legislation would not meet the international standards, and this would cause the complaints to the European court of human rights.

A very vivid discussion was evoked by the story about the action carried out by Lugansk dwellers. The goal of the action was to influence the decision of the Parliament about the termless election of judges. In the opinion of the conferees, such actions are caused by the absence of the procedures of discussing the candidates and by the fact that MPs have no information about candidates’ professional activities. Besides, the participants believe that protests against the election of some concrete judges must not turn into the expression of disrespect to justice as a whole. The support of the authority of justice in the nihilistic Ukrainian society is one of the most important tasks of human rights protecting organizations.

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