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Human Rights in Ukraine - 2004: V. RIGHT TO A FAIR TRIAL

   

The rule of law is one of the key elements in protecting human rights. A central aspect of this is the definitive role played by independent and impartial judges who act within the framework of the legal system.

These very principles are declared in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which stipulates the right to a fair court hearing. This Article and additionally ratified Protocols to the Convention correspond in their content to Articles 8 and 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights. These Articles play a special role in the system of legal norms on human rights and fundamental freedoms since they guarantee the most reliable and effective system of protecting rights and freedoms – the mechanism for judicial defence.

As has been seen on countless occasions, it is not difficult to make pronouncements about the existence of human rights and fundamental freedoms. Much more difficult is the actual securing of these rights and freedoms. In this regard, ensuring access to institutions of justice which meet the requirements of fairness, can give much more than any declaration, provided that the decisions of the court are adequately implemented. The European Court of Human Rights (hereafter, the European Court) has frequently stressed the vital role which the right to a fair trial plays in a democratic society. It is worth mentioning that the many claims lodged at the European Court are often specifically connected with violations of Article 6 of the Convention. This is explained in particular by the fact that claims about the violation of other articles of the Convention often arise as a result of violations of the demand to fair judicial proceedings.

Ten out of fourteen cases against Ukraine addressed to the European Court that were judged on in 2004 were based on violation of Article 6 of the Convention. They were the following cases: «Piven’ vs. Ukraine», «Trehubenko vs. Ukraine», «Sem Merith vs. Ukraine», «Svitlana Naumenko vs. Ukraine», «Voytenko vs. Ukraine», «Zhovner vs. Ukraine», Shmalko vs. Ukraine», «Romashov vs. Ukraine», «Bakay and others vs. Ukraine», «Derkach and Palek vs. Ukraine»[1]

Last year eleven applications were admitted to the European Court. Most of them also deal with the right to a fair trial and violations during execution of court decisions. The following applications were considered admissible: «Koval’ vs. Ukraine», «Lieshchenko and Toilupa vs. Ukraine», «Skubenko vs. Ukraine», «Timotiyevych vs. Ukraine», «Stryzhak vs. Ukraine», «Falkovych vs. Ukraine», «AgroTechService vs. Ukraine», etc. [2]

In this report we will consider the compliance of provisions in Ukrainian legislation to those of Article 6 of the Convention, as well as cases of human rights violations in Ukraine in order to analyze the situation as regards implementation of the right to a fair trial in Ukraine in 2004, and to highlight the most burning and problematical issues in this direction.

To conduct this analysis we have identified a set of rights and principles of court procedure, which represent the core of the right to a fair trial and which are the most controversial in Ukrainian legislation and law enforcement.

1. Accessibility of Justice

Article 55 of the Constitution of Ukraine states that «Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers. … Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law». The Constitution of Ukraine in Article 8 § 3 guarantees the right to appeal to the court in order to defend one’s constitutional rights and freedoms.

Ukraine has progressed significantly in the area of accessibility of justice during the years of its independence. Yet legal reform remains rather slow and inconsistent, and the population does not have a high level of confidence in judicial bodies.

Ukrainian legislative regulation of access to court is of a generally permission-based character, and guarantees the right of appeal to court to challenge the decisions of authorities and officials. However, these wide constitutional provisions are not accordingly supported by direct regulation.

One can cite the common example of the issue of physical access to buildings of judicial bodies: the possibility of getting into court buildings, submitting documents and supplements to these, not to speak of the difficulties experienced by people with disabilities. There are a number of issues which have not been regulated, and which in fact are simply ignored.

The courts have jurisdiction over all legal relations which can arise in a State. However, the expansion of court competence, the development of social relations and complications arising from their regulation have led to an overloading of the judicial system. Therefore, judges not infrequently create artificial barriers to access to justice by dismissing complaints and even covering them up. Their large workload leads to infringements of reasonable time limits for court decisions. At the present time, there are no legal mechanisms that would make it possible to legally challenge the inaction of judges, in particular, procrastination over settling cases. The only way to influence a judge in such a situation is by applying to those who have the right to initiate disciplinary proceedings.

Accessibility of justice means that courts must not refuse to consider cases and are obliged to defend the violated rights of a person, if this is within their jurisdiction. We cannot consider courts accessible when the very court system remains complicated and cumbersome, and makes it difficult to determine which court is competent to deal with any specific case. Court expenses should not prevent legal defence. Public accessibility of information on court organization and activities is also a necessary condition for accessibility of justice, but in Ukraine this accessibility is far from ideal.

In any nation the factors of accessibility of justice are as follows:

 absence of groundless barriers for court access and prompt judicial remedies;

 popular awareness of the judicial system, the procedure for appeals and court practice;

 availability of an optimum system of court expenses and well-developed mechanisms to provide legal assistance to the poorest layers of society;

 the enforcement of judicial rulings.

The information required for an appeal to the court is often inaccessible and hard for the average person to understand. The judges often consult citizens themselves during their reception hours. Moreover, it is not uncommon for judges to express their opinion about the outcome of a particular case.

Texts of court judgments are usually not accessible to those who are not the immediate parties to a case. Court rulings are published selectively and in unofficial manner.

Due to lack of court premises, judges often consider cases in their offices, this making them unavailable to the public. Court expenses often prevent the poorest layers of society from seeking judicial remedies. Exemptions for poorer citizens from paying state duty on appeals to the court are virtually unheard of. These problems are especially acute with regard to ensuring the ability to take somebody to court in a civil case. The mechanisms for providing state assistance with court costs in civil and administrative cases are ineffective. For example, free legal assistance is provided by the State only in criminal cases. Lawyers providing such type of assistance also work almost for free, which causes a generally very low level of legal assistance. Despite the pitifully low fees for lawyers, the payments for the assistance allowed for are effectively not paid, and regional justice departments do not even use the small funds in the state budget that are allocated for legal assistance.

A significant problem has arisen as a result of the amendments to legislation related to the calculation of state filing duty in cases involving moral damages. On the one hand, this has decreased the number of law suits against the mass media, but on the other, access to court of those whose cases deal with compensation of moral damages for the unlawful actions of authorities or with compensation to employees for injuries or damage incurred while performing their duties, has became more complicated.

The principle of specialization defined in the Constitution of Ukraine as the basis for a whole system of courts of general jurisdiction has been only partially implemented. Courts of general jurisdiction cannot be considered specialized, despite the fact that they specialize in the consideration of largely civil or criminal cases. Moreover, the specialization of judges in specific categories of cases remains rare in general courts. The situation results in an unequal distribution of cases between judges, who are now required to master a wide range of matters, making the process of judges’ consideration even more drawn-out.

Judicial protection of human rights and fundamental freedoms receives too little attention from State executive bodies and bodies of local self-government. When considering disputes between State bodies and citizens, judges are often dependent on executive bodies, and are susceptible to their pressure largely due to their financial dependence. A system of administrative courts has yet to be created despite the fact that the need for such administrative courts and administrative jurisprudence has been acknowledged at an official level.

One of the major problems of Ukraine’s legal system remains the inadequately supplied and financed state of courts of general jurisdiction. A lot of courts, especially local ones, do not have adequate premises, they lack computers and the technical means for recording judicial proceedings, stationery, etc.

According to data provided by the State Judicial Administration within the framework of measures planned for regional programs, as of 1 January 2005, 127 courts had been provided with premises, this being 68.3% of the figure planned. The original plan of providing courts with premises had been fully implemented in the following regions: Volyn, Transcarpathia, Dnipropetrovsk, Kirovohrad, and Lviv. Courts in Vinnytsa, Donetsk, Zhytomyr, Kyiv, Rivne, Ternopil regions and in the city of Sevastopol, are each still waiting for one more building.

Furthermore, the condition of premises which are designated for use as courts is often very poor and does not always render normal exploitation feasible. Thus, of the overall number of buildings transferred to courts, 95% are in need of repair, more than half (53 %) have less than the necessary minimal space, and the premises do not meet the requirements established for judicial proceedings. Sometimes these are simply the working areas of businesses that went bankrupt. Measures for providing courts with premises can be characterized as extremely unsatisfactory in the following regions: Kharkiv, Kherson, Cherkasy, Chernihiv, and the city of Kyiv.

The provision of courts with premises within the framework of measures
envisaged by regional programs, as on January 1, 2005[3].

The State Judicial Administration also informs that 28 courts were not provided with premises due to lack of money, and 26 courts were left without premises due to failings or inactivity of local executive bodies. Territorial Departments of the State Judicial Administration of Ukraine (SJAU) point to this factor in Vinnytsia, Zhytomyr, Zaporizhia, Mykolayiv, Poltava, Sumy, Kherson, Chernihiv regions, and in the city of Kyiv.

Funds have not been allocated for re-equipment of premises. One therefore sees the situation where, on paper, and in their report to the State Judicial Administration, a court has received premises, however court hearings continue in the old premises because the new building is not ready for use. Thus the situation remains blocked rather than being improved.

The fulfilment by the chairperson of a court of his or her managerial functions can also influence accessibility to the court. Under these circumstances, the chairperson of the court may have no time left for legal proceedings. One can also observe the dependence of a court chairperson on the President of Ukraine and his or her Administration, since the President, in contravention of the Constitution of Ukraine appoints judges to the position of chair of the courts. It would seem expedient for the court chairperson to be elected by the judges of each given court.

In comparison with previous years, expenditure on the judiciary has significantly increased, however it still does not cover all court needs. A substantial part of expenditure is on the salaries of judges, court staff and on social security. Experts have estimated that less than 50 percent of the financial needs of the judiciary are presently covered.

We should also mention the conclusions of the Accounting Chamber of Ukraine as to fulfilment of the State Budget of Ukraine and utilization of budgetary funds. These conclusions state that: «lack of proper management of monetary and material resources in the State Judicial Administration of Ukraine have led to budgetary offences, inefficient use of state funds, and a loss to the budget of 8.1 million» [4] – this at a time when there is a catastrophic deficit of funds!

Starting in 2003, there has been a slight improvement in the situation as far as financing court activities is concerned. On 16 June 2003, the Cabinet of Ministers of Ukraine adopted a State Program for Administrative Financing of Judicial Activities during 2003-2005[5] prepared by the State Judicial Administration. The program has clear objectives and measures for financing judicial activities, resolving issues of social security, safety, and the independence of courts.

Spending on the maintenance of the judicial system has also increased. According to data from the Ministry of Finance of Ukraine, in 2003 as compared with 2000, the general level of financing of the judiciary increased almost 2.5 times, with judges’ salaries 2,2 times higher[6]. Expenditure allocated by the State Budget of Ukraine for 2003 was paid in full. In 2004 financing of the courts increased, in comparison with 2003, by more than a third.[7] One should however take into consideration the increase in the number of judges and courts, and the corresponding objective need for an increase in funding.

During the conference «Financing the Judiciary of Ukraine and Independence of Legal Proceedings» which was held by the Chernihiv Public Committee of Human Rights Protection Group and the Parliamentary Committee on Legal Policy, judges complained of a 600 UH decrease in their (monthly) salary last year; the salary of some judges had halved. The reason for this was the introduction of profit tax for judges and changes in the way salary is calculated. These changes had been adopted at the end of last year, and thus they could not have been considered when formulating 2004 budget. Although the Ministry of Finance of Ukraine reports 100 percent financial coverage of planned budget expenditures, and the State Judicial Administration confirms this, the sum allocated in the budget for judicial needs was less than that needed. [8]

Such positive figures cited in the reports of state authorities do not take into account the real financial needs of the judiciary and disregard additional circumstances that decrease real funding.

2. Publicity of the Proceedings

Judicial procedure can be considered fair only when it is aimed at ensuring the rule of law and is based on legality, equality of parties before the law and court, competition; when it is accessible, public, open, and when it has mandatory mechanisms for carrying out court decisions. Any restrictions of these basic elements are possible only as exceptions and in cases foreseen by legislation and justified as necessary in democratic society.

The legality of court decisions is guaranteed by the consent of the interested parties, and also by parties having the right to challenge a decision and to a review of this decision in a higher court. Here it is worth noting as an example that the ruling of the Supreme Court of Ukraine on the refusal by the State Committee dealing with religious issues to register a religious organization cannot be challenged since the Supreme Court, in reviewing the case alone, is the court of the first and last resort.

Judiciary rules should not be burdened with unnecessary formalities. In order to ensure the right of the individual to have his or her rights reinstated promptly, especially in uncomplicated cases, it is expedient to simplify court procedure in such a way that the simplification will not infringe upon the interests of the parties with regard to a just solution to their case. It is necessary to prescribe effective mechanisms for avoiding dishonest use by the participants in the judicial proceeding of their procedural rights, and also liability for when procedural obligations are not carried out.

The need to be public and open requires that the court ensures the right of the parties to be informed of the time and place of a judicial hearing into their case, the right to be heard in the court, and the right to know all the decisions made in their case. Non-public hearings would deprive the parties and other participants of a judicial procedure of any guarantees as to proving the justification of their position.

Openness of judicial procedure gives those not participating directly in the case the right to be present at judicial sittings. There can be no faith in a court where there is no open access to its hearings. This demands from judges as the representatives of the judiciary that they behave in a responsible and ethical manner to deserve public respect. Situations when press representatives are asked to leave a court hearing are not uncommon. For instance, a journalist of the Kherson newspaper «Vhoru» («Upwards») was forced to leave the court chambers during proceedings into a case, which had been declared as public.

Access to judicial statistics and court decisions should also be open. In many almost analogous cases court decisions are very different, even to the point of being quite opposite. Here, a fundamental failing is the lack of access to court decisions for anyone but the direct parties to a case. The Commercial Procedure Code (paragraph 3 of part one of Articles 111-15) already has norms permitting an appeal to the Supreme Court of Ukraine in cases when the Higher Commercial Court of Ukraine interprets the same clause in legislation or other statutory acts differently when deciding similar or analogous cases. People now also have the ability to access some decisions of commercial courts.

Access to court decisions is also problematical in the area of civil and criminal justice. A regulation similar to that described above would positively influence the fairness of court decisions and concordance of judicial practice. Accessibility of court decisions while meeting the requirements of personal privacy and confidentiality of corporate information would effectively influence the quality of court decisions and legal protection of the parties during judicial procedure.

Legal distinctness is one of the fundamental attributes of a fair trial and is achieved in the main through lack of ambiguity and clarity of legislation. At the same time, the court, applying the provisions of the law, should take into consideration its purpose and give the interpretation which affirms the rule of law. Open access to court decisions should become one of the most effective forms of public control over the judiciary. Moreover, openness of court decisions will also contribute to a more uniform application of laws and predictability of the outcomes in analogous cases. Restrictions on the openness of court decisions can be imposed only in cases defined in legislation aimed at protection of confidential personal data or other secrets, which are protected by law.

3. Hearings within a reasonable time

Article 6 of the European Convention entitles everyone to hearings «within a reasonable time». This means that judicial proceedings should occur without delays that might challenge court effectiveness and public confidence.

The criterion of «a reasonable time» is important because it guarantees the passing of judgment within a reasonable period, establishing in this way a time limit to the state of uncertainty which a person is in as a result of a criminal charge or through being involved in a civil legal dispute.

The beginning of the state of uncertainty for a person in connection with a legal investigation and trial proceedings comes with the formal charge, or if the person was detained, or if preventive measures were applied, from the corresponding first moment. The end of the state of uncertainty is the moment when sentence is passed or a decision comes into force or the charge is dropped (the closing of a criminal investigation). Therefore, the period between the bringing of a charge and the final verdict should meet the criterion of a «reasonable period».

Before we begin our analysis of Ukrainian legislation, it is important to note that «investigation» is a process which has its own stages or levels. Although the legislator does not specifically define how long a person can remain in a state of legal uncertainty as a result of criminal prosecution, he does, however, often specify the periods for specific stages in the criminal process, or for various procedural activities. Even if specific periods (time frames, duration) of stages of the criminal process or procedural activities are not defined, then the procedure, rules for this procedure and sequence for carrying out specific procedural activities are set out.

One of the problems with keeping to a timetable for review of cases is that further investigation may be demanded, this significantly increasing the duration of criminal investigation. During preliminary consideration, a judge may remit a case for supplementary investigation if mistakes have been made in the preliminary investigation or if the law on criminal procedure has been infringed, and these infringements cannot be eliminated during judicial sittings.

The grounds for sending a case back for further investigation after preliminary consideration of the case, in accordance with Article 246 of the Code of Criminal Procedure of Ukraine are:

1)1) significant breaches of the requirements of the law on criminal procedure or mistakes in detective enquiry or pre-trial criminal investigation, which cannot be eliminated during court hearings, but which make court consideration impossible;

2)2) the presence in the case of grounds for bringing charges against the accused, which have not thus far been laid;

3) the presence of grounds for bringing criminal charges against other individuals, where a separate review of the case with regard to them is impossible.

When remitting a case for further investigation, the judge is obliged to indicate in his/her decision which particular circumstances need to be clarified and what investigative action should be taken to this end. When sending a case back for further investigation, the judge must decide on the preventive measure to be taken with regard to the accused.

It is interesting to see how court employees view certain aspects of the application of law in Ukraine. Thus, the majority of those asked – 60 % – considered that the principle of further investigations did not conflict with the principle of the presumption of innocence.[9]

Such a position is, at very least, curious, since, in accordance with Article 62 of the Constitution of Ukraine the presumption of innocence is affirmed and all doubts as to the proof of guilt of the accused should be interpreted in his or her favour.

Guilt which has not been proven is, in accordance with criminal process doctrine, treated as proven innocence. However, most court employees hold a different point of view. They consider that further investigation, which is clear evidence of the incompleteness of criminal investigation and the lack of certainty as to guilt are not infringements of the principle of presumption of innocence. The prosecution is thus given a second chance to prove guilt, which from the point of view of the possibilities of the investigation apparatus, violates yet another principle of justice – that being the equality of arms.

The practice of sending a case back for further investigation is a flagrant example of the violation of not only the periods for review of a case, but also directly of a person’s human rights in the area of defending their rights.[10]

A considerable number of claims to the European Court relating to violations of Article 6 of the European Convention deal with infringement of the right to consideration of one’s case within ‘a reasonable time’.

According to the «Report on consideration of criminal cases by courts of first instance», in 2004, the Supreme Court of Ukraine, appeal, local and military courts sent 1499 cases involving crimes against life or health back for further investigation. 510 of these cases involved premeditated murder and 554 – aggravated assault. An additional 360 cases dealing with crimes against electoral, labour or other individual human rights and freedoms, and 6688 cases regarding crimes against property were also sent back for further scrutiny. Thus, using the general figure provided of 219, 873 criminal cases which were brought to court through 2004, 14,273 cases were returned for further investigation, this being 6,5 % of the overall number.

An additional 3.3 % of criminal cases had not been considered within 6 months, without taken into account cases which were terminated.

The abolition of the system of Courts of Cassation, and slow progress on creating higher courts has led to the Supreme Court of Ukraine becoming seriously overloaded. At the beginning of 2004, approximately 20 000 cases were awaiting attention, by the end of 2004, this number had increased by 10 000.

An example of violation of the «reasonable time» requirement is seen in the European Court decision in the case «Sem Merith vs. Ukraine» [11] dated March 30, 2004. The essence of this case is as follows. Mr. Merith, a citizen of Israel, was involved in commerce in Ukraine. On suspicion of crimes involving abuse of power by an official, a criminal investigation against him was launched, and in 1998 he was detained. Initially he was kept in custody as a preventive measure. This all happened in 1998. Although later other preventive measures were chosen: first, he gave a written undertaking not to leave his place of residence, then an undertaking to appear before the investigating authorities and courts when requested and was allowed to leave the country. Criminal investigation continued, all his property remained under arrest, despite 6 years having passed since the beginning of the case,

The European Court ruled that in this case the rights, guaranteed in Article 6 («a fair and public hearing within a reasonable time») and Article 13 (absence of an effective remedy before a national authority to challenge such timing of the case) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated. Ukraine was ordered to pay 2,500 Euros in moral damages to the plaintiff and 1500 Euros court costs.

In the viewpoint of the European Court, hearings in cases that involve criminal charges should be conducted within a reasonable time frame. This notion is rather broad, so over the years of its activity the European Court has developed a set of criteria to define «reasonable time of hearings»: the complexity of the case, behaviour of the plaintiff, and behaviour of the authorities.

It is clear from the facts of this case that a criminal investigation lasting six years could not meet the requirements of the European Court for «a reasonable time» of hearings. However, as well as stating that the time period had been unreasonable, the European Court made another comment regarding Ukraine, noting that Ukrainian legislation lacks effective ways of protecting a person from violation of reasonable periods for consideration of a case, and does not allow for the possibility of obtaining compensation if such a violation takes place.

Ukrainian legislation should, therefore, be supplemented with norms that:

 ensure the right of any individual or legal entity to get compensation from the State if the reasonable period for dealing with their case in courts of general jurisdiction have been violated;

 consolidate procedure for making a complaint about violations of reasonable time scales and for receiving compensations for damages incurred;

 state the sources of financing the compensation for damages caused by the violation of the reasonable time requirement.

Another interesting case on reasonable time is «Trehubenko vs. Ukraine». Here the European Court ruled unanimously that Ukraine had violated paragraph one of Article 6 of the European Convention, in the context of having the possibility to lodge a protest to a judge of the Supreme Court of Ukraine over a court decision that had already come into force.

Taking into consideration the financial and social status of the applicant, his age, and health, the Court decided that nullification of the given decision was a disproportionate interference in his rights to enjoy his possessions. That gave grounds for the unanimous decision of the European Court that the case included violation of Article 1 of Protocol # 1 of the European Convention for Protection of Human Rights and Fundamental Freedoms.

The European Court awarded 3,536 Euro to the plaintiff as compensation for material damages, and 5,000 Euros for moral damages.

The European Court of Human Rights decision in the case of Trehubenko challenges the entire procedure for supervision and the functions of the Supreme Court as an overseeing body that can review court decisions which have already come into force.

There seems little doubt that the partial restoration of the procedure of general surveillance of the Office of the Prosecutor, which was included in a recently adopted Constitutional reform will also violate a person’s right to a fair trial and be in contravention of Article 6 of the European Convention. [12]

The Draft of the Criminal Procedure Code has effectively rejected the practice of sending cases back for further investigation, however the practice of returning a case to the office of the prosecutor which was introduced with the amendments from 21 June 2001 to the current Criminal Procedure Code (Article 249-1 of CPC), has been retained. At present the judge may, at the stage of preliminary consideration, return a case to the office of the prosecutor if the latter has infringed Articles 228-232 of the CPC, which are, in essence, its main activity as the representative of the prosecution.

For instance, the judge may return a case to the prosecutor, if he/she considers that the prosecutor did not check whether «a crime was committed» (Article 228 of the CPC). In practice, this means that the judge sees no evidence in the case of an actual crime, but does not wish to take the decision to terminate the case. He/she therefore sends it back to the prosecutor so that «it gets buried with other cases» or so that the prosecutor «uses some magic» to come up with some kind of crime».[13]

A judge may also send the case to the prosecutor if he/she considers that not all the people involved have been charged (Article 228 of the CPC), or that the charge should «be replaced by a more serious one» (Article 231 of the CPC).

Furthermore, the Draft of the new Criminal Procedure Code allows for cases to be returned to the prosecutor not only at the stage of preliminary investigation, but also when the main hearings have begun. This procedure may take place where the investigator has not informed the participants in the criminal process of the termination of the criminal case, has not shown them the case material, has incorrectly prepared the prosecutor’s conclusions, has not added necessary material to the latter, or has not sent the case to the prosecutor. The same procedure is foreseen where the prosecutor has not confirmed the indictment or other decision about directing the case to court, or s/he did not submit to the defendant a copy of the indictment or a decree about amendments to it.

As an expert from the Kharkiv Human Rights Protection Group, Arkadiy Bushchenko, notes, this option is excessive for the purpose of removing formal discrepancies (which can happen in any field), while being clearly inadequate for rectifying significant failings. Many grounds for returning a case to the prosecutor during the main court proceedings can be eliminated during the very hearings. For instance, the court might give time for the accused to become familiar with case material and then satisfy his/her claims if deemed justified.[14]

Overall the development of legislation on criminal procedure, especially in the area of reasonable time, should be directed towards strengthening the adversarial principle which forms the basis for proceedings in all European countries, and complies with basic requirements for protecting human rights.

The practice of sending cases back for further investigation should be entirely discarded. It is vital to ensure the presumption of innocence of a person during investigation and when using preventive measures.

Evidence which has not been obtained through the adversarial process should not have legal force and anything which is not proven should be interpreted as being in favour of the accused.

4. Independence and impartiality of the court

The independence of the judiciary and its equal standing in relation to other branches of state power are the hallmarks of a State based on law, in which every citizen has the right to protection of his/her rights and freedoms by an authorized, independent, impartial and objective court.

Independence of the judiciary is a universally recognized right in international law. In adherence to fundamental principles of independence of judicial bodies, stated in UN General Assembly resolutions 40/32 and 40/146 dated November 29 and December 13, 1985 respectively, each member-state takes on the obligation to allocate sufficient funds to ensure that judicial bodies are able to properly fulfil their functions. The independence of the judiciary is guaranteed by the state and is stated in the Constitution or laws of the country. All state and other institutions are obliged to respect the independence of the judiciary and adhere to it (paragraphs 1 and 7).

Paragraph «b» of part 2 of principle 1 of the Recommendations of the Committee of the European Council on the independence of the judiciary dated October 13, 1994 proclaims that legislative and executive powers must ensure the independence of judges and oppose any efforts to jeopardize this independence.[15]

Furthermore, the Vienna Declaration and the Action Plan adopted during the Second World Conference on Human Rights on June 25, 1993[16] stressed the importance of appropriate funding of all establishments of the judiciary (paragraph 27).

According to the provisions of Article 6 of the European Charter on the Status of Judges «Judges are entitled to remuneration, the level of which is fixed so as to shield them from pressure aimed at influencing their decisions and more generally their behaviour within their jurisdiction…

Remuneration may vary depending on the length of service, the nature of the duties which judges are assigned to discharge in a professional capacity, and the importance of the tasks which are imposed on them, assessed under transparent conditions.

… judges who have reached the legal age of judicial retirement, having performed their judicial duties for a fixed period, are paid a retirement pension, the level of which must be as close as possible to the level of their final salary as a judge»..[17]

The European Court when deciding whether a judicial body is independent considers the following factors:

 the procedure for appointment of its members;

 the duration of their service in this capacity;

 the existence of safeguards that shield them from pressure, and those which provide the given body with the external features of independence.[18]

The European Court of Human Rights has ruled that a judicial body should act independently of both executive power and parties of the case. [19]

The judicial system and proceedings should be organized in such a way as to prevent any opportunity for exercising pressure on judges nor any justified doubts among the parties to the case as to the impartiality of the judges in making their judgment..

The adoption of the Constitution of Ukraine raised the issue of whether to reject the system of military courts. The existence of such courts within a system of courts of general jurisdiction is not in keeping with the constitutional principles of specialization and territoriality, since military courts carry out civil and criminal court proceedings in military units. Furthermore, judges of military courts have a particularly privileged status as compared with other judges. This raises well-founded doubts as to the independence and impartiality of these judges. The law «On the Judicial system of Ukraine» of 2004, despite proclaiming a single status for all judges, retained the special status of military court judges. These judges are in military service and belong to the staff of the Armed Forces of Ukraine.

These judges’ salaries and careers depend on their military rank, obtained through the active participation in the military command. A military judge also uses all kinds of military equipment and enjoys the social benefits of servicemen, thus in part being in the keeping of a State body (the Ministry of Defence) which is frequently an interested party in military cases. The special status of military judges discriminates against other judges and raises understandable doubts as to the independence of these courts.

Here we should mention the legal practice of the European Court of Human Rights[20], which considers that the independence and fairness of a military judge who is on military service and holds the rank of officer, regardless of any safeguards designed to shield him from pressure, must be in doubt, and that the existence of such a situation violates paragraph 1 of Article 6 of the European Convention[21]. The European Court of Human Rights, in considering the case «Dobertin vs. France», noted that the elimination of the National Security Court and Paris Military Court were important changes which should improve the protection of the right to a fair trail, envisaged in Article 6 of the Convention[22]

The level of confidence in the military courts is not high amongst servicemen.[23] Even if one considers the present backlogs in courts, there can be no justification in retaining military courts. The existence of military courts within a system of courts of general jurisdiction is also placed in question by Article 125 of the Constitution of Ukraine which states that «the creation of extraordinary and special courts shall not be permitted».

In view of the above, the government draft introduced into Parliament in 2004, which envisages the abolition of military courts within Ukraine’s court system, can only be welcomed.[24]

Nonetheless, the Human Rights Ombudsperson, Nina Karpachova believes that the liquidation of the system of military courts may lead to disorganization of the work of the courts as regards cases involving military servicemen, and may negatively affect their position and the guarantees of protection of their constitutional rights. Therefore, the Ukrainian Human Rights Ombudsperson has addressed an appeal to the President of Ukraine, asking him to use all means to stop the liquidation of military courts, which she deems ill-considered.[25]

In Ukraine a judge is initially appointed by the President for a period of five years, and is then elected by Parliament with indefinite tenure. The responsibility for choosing judges rests with a system of qualifying committees for judges and the Higher Council of Justice. The qualifying committees carry out the initial choice of candidates for the position of judge by checking whether each candidate meets the qualifying conditions and by carrying out attestation of the potential judges. The Higher Council of Justice then interviews those candidates recommended, and submits their shortlist to the President for appointment. In Parliament, the candidacy of judges is discussed first in the Committee on Legal Policy.

Such procedure, should independence of judges be properly respected, does not in general pose any threats to court independence, since a judge’s life tenure does not depend on the will of the President who makes the initial appointment, and thus a judge upon his or her appointment or election ceases to depend upon the appointing or electing authority. In addition, the procedure involves independent collegiate bodies – the qualifying committees and the High Justice Council.

At the same time, one can point to many failings in the procedure for becoming a judge. The progression from candidate to judge depends to a fairly large extent on individual officials of the executive and judiciary, who are involved at certain stages in the process of choosing judges. The vague nature of provisions of the law «On the Judiciary of Ukraine» (2002) provides a lot of scope for abuse on the part of officials. Many provisions of the law can have more than one interpretation which in practice leads to a selection procedure which is not transparent. The State Judicial Administration, presidents of courts, and Administration of the President are also involved in the selection process, as well as the qualifying committees and the High Justice Council. We can expect these institutions to create various barriers at each of the stages of selection.

The authority to prepare materials for appointment and election of judges has been transferred from the Ministry of Justice to the State Judicial Administration, which acts as a mediator at every stage of the documentation processing. One should keep in mind that the State Judicial Administration is an executive body, whose directors are appointed by the President.

The role of court chairpersons in the selection and careers of judges remains significant. Since 2002 some of their functions have passed from chairpersons of courts of appeal to chairpersons of higher courts. Thus, the Chairperson of the Supreme Court makes submissions as to the appointment or election of judges and requests the appropriate qualifying committees to make conclusions as to the feasibility of appointing or electing judges, while the chairpersons of higher specialized courts submit requests as to appointment or election of judges of the respective specialized courts. One should also take into consideration the fact that the chairpersons of courts are appointed and dismissed by the President of Ukraine, which places upon them the need to be loyal towards the Presidential Administration. [26]

The Law «On the Judiciary of Ukraine» has retained the provision that for qualification attestation, a candidate must provide a reference from his or her place of work, written by the chairperson of his or her court. This means that without such a reference, a judge seeking life tenure may be denied a qualifying attestation, which may also serve as a lever for unlawful influence on a judge by his or her court chairperson.

Professionalism, independence, and impartiality of judges are vital for ensuring just decisions in court cases. The system of selecting judges, the prestige and authority of the position of judge need to ensure the formation of a highly-qualified corps of judges. The deepening specialization of the court and of judges should contribute to the quality of court decisions and to the resolution of cases in reasonable time.

A mechanism for judges’ responsibility needs to guarantee effective and prompt reaction to cases involving judges’ self-will or incompetence.

In a growing number of instances people without the sufficient moral and professional qualities required for the high status of a judge are nonetheless appointed to such a position. Judges are often former police officers or prosecutors who prove incapable of shedding their stereotypical thinking based on the point of view of the prosecution.

As mentioned, officials of the executive and judiciary can have a disproportionate influence on the appointment of judges. Unfortunately the requirement for competition when appointing judges has virtually no force. There are less people applying for the position of judge then there are actual judicial seats. The situation, however, is different in the capital or other large cities, where there are fees, albeit not broadcast, for services in facilitating somebody’s appointment. No competitive procedure at all is envisaged in the process of election of judges for courts of higher jurisdiction, which, also contributes to corruption in this area.

The system of disciplinary liability of judges is far from perfect; in many cases it allows judges to avoid liability, and in some cases the system for disciplinary liability is used to crack down on a particular judge.

An example of this can be seen in the case of Judge Yuriy Vasylenko, who brought an action against President Kuchma, and as a result instead himself faced disciplinary proceedings.[27]

Presently disciplinary authority is exerted by qualifying committees of courts (both judges of local and appeal courts) and the Higher Council of Justice (for judges of higher courts and of the Supreme Court). These also consider complaints about decisions to bring disciplinary proceedings against judges of local and appeal courts.

However, issues of judicial discipline are not directly tied to qualifications. For instance, the appearance of a judge drunk in the courtroom bears no connection with his professional knowledge but constitutes an administrative offence. That is why the authority to impose disciplinary liability on judges should not belong to the competence of qualifying committees. The difficulty of making a judge liable for disciplinary offences is further compounded by the fact that these bodies do not work on a regular basis, and the periods for imposing disciplinary liability are limited.

As a rule, interference with the course of justice occurs at the initiative of the chairpersons of courts, who have many levers of influence over judges, starting from distribution of cases among judges and ending with decisions as to bonuses.

Legislative guarantees for remuneration of judges in Ukraine do not contribute to the independence of judges. The system of remuneration, where, in the absence of an appropriate law, a judge’s salary is at the discretion of the President of Ukraine and the Cabinet of Ministers of Ukraine, is evidence of the significant dependence of judges on the Head of the State and on the Government. Some legislative acts regarding remuneration of judges are not published to avoid making this dependence too obvious. To eliminate corruption in judicial bodies and to strengthen independence and impartiality of the judiciary, it is necessary to review the salaries of judges and prepare a draft «On Salaries of Judges and Court Staff».

Low salaries prevent the position of judge being considered prestigious in professional lawyer circles. On the other hand, the opportunities for gaining illegal profit from this post attract those whose aims directly contradict fair and impartial judicial proceedings and decisions.

One should note that judges’ salaries decreased in 2004, this especially affecting local judges and auxiliary staff, and this created impossible conditions for their activity. For example, the monthly salary of a judge of the appeal court last year was on average around 2,100 UH, whereas this year, judges say that they received 1,700 UH per month. Salaries in commercial courts are much higher. Auxiliary staff in local courts receive 250-300 UH per month, and the salary of newly appointed judges of local courts is about 400-600 UH. [28]

To create additional safeguards for the independence of judges and to generate an increase in court confidence we should implement at procedural level the institute of trial by jury. The involvement of juries is important first of all because the law allows judges very wide discretionary powers, and the result of the decision on a case is dependent upon the moral assessment of the circumstances (juvenile delinquency cases, cases which determine a child’s future, deal with questions of guardianship and care, etc.),. Usually it is not judges’ knowledge of legislation, but their life experience and general moral level which play a vital role in the correct and fair interpretation of laws.

There is a real need to develop mechanisms of legislative control over the functioning of juries. To begin with, trial by jury should be introduced only in specific categories of cases, for instance, those involving very serious kinds of crimes. The accused should have the right to choose between trial by jury and a panel of professional judges. While both jury and professional judges coexist in Ukraine, it is crucial to separate their functions. The jury in its verdict decides whether a crime was committed, whether it was committed by the accused, whether the accused should answer for the crime, while a professional judge passes sentence in the case based on the verdict of the jury and norms of criminal legislation.

The status of the Prosecutor’s office also influences the independence of the judiciary. According to the Constitution of Ukraine (Article 121) this status is limited to two functions: prosecution in court on behalf of the State and supervision of the adherence to law of bodies that conduct investigative operations, detective enquiry and pre-trial investigation. Provisions of the Draft of the Criminal Procedure Code contradict the Constitution and endow the Prosecutor’s office with the right to conduct pre-trial investigation (Article 232). It is a contradiction for both pre-trial investigation and supervision over the lawfulness of its activities to be carried out by one and the same body.

In order to prevent possible abuse in carrying out pre-trial investigation, particularly as regards protecting the rights of suspects and defendants, the Constitution removed the right of carrying out pre-trial investigation from the jurisdiction of the Prosecutor’s office. We should note, however, that transitional provisions of the Constitution temporarily retain pre-trial investigation as a function of the Prosecutor’s office until a system of pre-trial investigation can be created. Moreover, the wording used in the transitional provisions effectively permits the retention of these powers indefinitely. This does not, however, give grounds for accepting a new code with outdated norms which entirely ignore Article 121 of the Constitution, do not comply with the requirements of competitiveness in judicial proceedings, and which contradict the provisions of Article 6 of the European Convention.

5. «Equality of arms» and adversarial proceedings.

The present Ukrainian system of criminal justice still retains the principal features of the old Soviet model. It is based upon strict centralization, lacks clear values of morality and fairness, and manifests formalism and red tape, which develop into bribery and corruption. Ostensibly declaring the ideals of democracy, in practice this system opts rather for a repressive approach.

The system of criminal justice in Ukraine is at this stage an effective instrument for limiting democracy. It is used for political and economic purposes both at the highest political level, and on local scale. The years of independence have not achieved a satisfactory level of de-politicization of its law enforcement system nor judiciary. In all parts of the country, instances of the dependence of judges are not infrequent. The effectiveness of the activity of legal instruments aimed at ensuring independence of judges is extremely low. Unfortunately, it must be acknowledged that in recent years, there has been little evidence of appropriate activity from judges themselves in standing up for the principles of judicial independence.

The activities of criminal prosecution bodies is characterized by duplication of efforts, and where there is a conflict of interests, departmental considerations prevail over public interest. The delegation of functions in criminal justice does not conform to best democratic practice. At pre-trial stage, the role of the judiciary is artificially downgraded. A prosecutorial approach has become firmly entrenched.

Certain failings are highlighted by lawyer and expert in criminal law and process for the Kharkiv Human Rights Group, Arkady Bushchenko: «In several cases the Criminal Procedure code makes it possible to act in a way that violates standards of independence as regards review of cases by the Prosecutor. For example, according to paragraph 1 of Article 112 of CPC, possible brutal treatment meted out by «a serviceman of the Armed Forces of Ukraine» should, at the first stage, be investigated by the commander of the military subdivision. According to Paragraph 5 of the same Article, an appeal against brutality from the staff of «a corrective labour institution, pre-trial detention centre, corrective labour and treatment centre, and educational and labour centre» will be investigated by the head of respective institution. Only in cases where this official is charged, shall further investigation be conducted by the office of the prosecutor».

The failings of the existing system of procedural consolidation and assessment of legal evidence are compounded by signs of susceptibility of court experts to administrative pressure. Expert establishments maintain close ties with investigating bodies.

The process of safeguarding the principle of competitiveness during trials remains on a very low level. Lawyers do not have sufficient influence on the court to achieve fairness of court rulings, while offices of the Prosecutor severely restrict professional independence of their employees when taking part in trials.

Provisions of the Draft of the Criminal Procedure Code also flagrantly violate the right to defence. Thus, the Draft stipulates that the defending lawyer may become involved in proceedings only after the first interrogation (part 2 of Article 52), or not earlier than the moment when the individual is declared a suspect or actually charged (paragraph one of part two of Article 55). We believe that this directly restricts the constitutional right of each person to defence from accusations and to legal assistance, since the adherence to this right should not depend on such circumstances as the conducting of a first interrogation or the laying of charges. With regard to this issue, the Draft worsens the position of a suspect or accused, in comparison with the current Code of Criminal Procedure of Ukraine which allows for a first meeting with defence lawyer prior to the first interrogation (articles 43 and 43-1).[29]

The procedure for challenging a judge in Ukrainian legislation does not, in practice, meet the requirements of the equality of parties. According to the Civil Procedure Code of 2004, the challenge is considered by the very judge who has been challenged. In corporate and criminal court proceedings, the situation remains intact that the president of the court considers any challenges brought. The first variant raises doubts as to the objectivity of a decision concerning a challenge from the point of view of the fundamental principle: «Nobody can be judge in their own case». After all, a challenge by its very nature is a dispute between a party and the judge as to possible bias shown. The second variant is inadmissible since the president of the court may not have any special procedural rights as compared with other judges. A judge occupying an administrative post in court should not interfere in the decisions relating to cases made by other judges.

Ukraine is in a league of countries with an exceptionally high number of cases of remand in custody at pre-trial stage. The practice of falsifying administrative arrests in order to make the detention of a suspect appear lawful has become common. Those in detention are frequently subjected to unlawful methods of physical and psychological pressure. A confession of guilt from the accused remains the dominant form of evidence, while suspects are often bargained into making confessions by procedural benefits. Evidence is often rigged or destroyed.

The principle of the presumption of innocence, affirmed in the Constitution of Ukraine, is observed in an entirely unsatisfactory manner. Any doubts as to the defendant’s guilt are more often interpreted not in his or her favour but rather the opposite. It is common practice for law enforcement bodies to inform the media of a person’s proven guilt in committing a crime before sentence is passed in court, and even before the charge has been laid in court.

In the last ten years the procedural status of a suspect has become extremely restricted. Suspects are subjected to the same range of repressive measures, including preventive measures, as a person already charged.

One of the dominant ideas in Ukrainian criminal procedure remains that of limited judicial control. In accordance with this, the judge at the pre-trial stage appears only occasionally and is not entitled to confirm or assess court evidence. Having taken a decision about remand in custody of the individual, or about issuing a search warrant, the judge is then kept distant from the case.

An example of a violation of human rights in the context of equality of arms can be seen in the practice of sending cases back from the court for further investigation, and also the introduction in 2001 of the right of the court to authorize the criminal investigation unit to look for evidence as an alternative to further investigation.

The procedure for court review does not ensure adherence to the principle of adversarial proceedings. Evidence provided by the prosecution is more often given attention by the judge than evidence from the defence. The abolition of the principle of continuity of court review in a criminal case has resulted in serious abuses in the court.

Administration of justice was significantly damaged by the rejection of collegial forms of court procedure. The vast majority of criminal cases are heard and decided upon by a single judge. The adjudication rules make it possible for a sole judge to pronounce sentences of up to ten years of imprisonment in all cases. If under the law a certain offence is punishable by a term in excess of ten years a panel of judges will sit only if requested by the accused. Compulsory review by a panel of judges is foreseen only for crimes which allow a sentence of life imprisonment. For eight years now there has been concerted effort to not allow the introduction of trial by jury.

The main direction for the development of criminal procedure legislation should be the principle of adversarial proceedings which dominates in procedure in European countries and meets the basic demands for defending human rights. It is crucial that the practice of sending cases back for further investigation be abandoned, and that the presumption of innocence of an individual is maintained when carrying out investigations or when using preventive measures.

Evidence obtained in non-adversarial proceedings should have no legal force, while everything that has not been proven should be interpreted in favour of the accused.

6. The right to Legal Assistance

The European Convention does not clearly state that there must be free legal assistance in civil cases. It has, however, ruled that legal assistance must be provided to meet the interests of justice. Article 59 of the Constitution of Ukraine affirms that «Everyone has the right to legal assistance».

It is up to the judge to determine whether the interests of justice require that free legal assistance be provided to a party in a civil case when s/he cannot afford a lawyer.

If a person accused is entitled to free legal assistance, then this assistance should be practical and effective, not theoretical and illusory.

Legislation regulates the necessary amount of state legal costs and establishes the categories of citizens and cases where benefits are due. However, given the low standard of living in Ukraine, it is financially impossible for the average citizen to pay for qualified legal assistance to prepare a case for court.

Justice cannot be considered accessible to all if the State lacks efficient mechanisms for providing legal assistance. The absence of effective mechanisms for providing legal assistance to the poorest layers of society is a violation of the right to a fair trial. In such a situation, judges in civil cases often provide legal consultation to the parties which creates serious doubts about their impartiality and violates the principle of adversarial parties.

The quality of legal assistance in criminal cases is low, since state fees to lawyers for providing free assistance are extremely low. Lawyers, appointed to defend a person in a criminal court case do not even bother to waste their time collecting the fee. However information from human rights groups suggest that even those funds allocated by the state budget for providing legal assistance are not being used by departments of justice.

The Kharkiv Group for Human Rights Protection approached regional departments of justice and courts of appeal requesting data on the use of budget funding allocated for paying lawyers providing free legal assistance in criminal cases. The statistic data received was uninspiring. In Ivano-Frankivsk region 12000 UH had been allocated, of which 210 had actually been spent, leaving 11 790 UH at the end of the year recorded as budget revenue. In the Kherson region, during the second half of 2004, 49 200 UH had been received, of which not one had been spent. The same was found in the Transcarpathian, Chernivetsky regions, and in the city of Sevastopol, where of the 7 500 UH received, none had been spent. In the Dnipropetrovsk region 18 191 of the 107 000 UH received had been used to pay for the services of 249 defence lawyers. Even in Kyiv of the 28 000 UH received, only 7 000 had been spent. One should note that the amounts which are given to different regional departments of justice vary considerably between 7 500 and 165 000 UH.

Modern civil procedural legislation in Ukraine allows the court to free a person from court charges, in particular for legal defence charges. However there remains no effective mechanism for involving lawyers in these cases, nor for paying for their services.

According to the European Court of Human Rights practice a state should guarantee legal assistance when «this is necessary for providing real access to justice or when legislation of member-states requires legal representation in some categories of cases or in cases of complexity of judicial proceedings»[30]. To comply with the standards established by the European Court of Human Rights according to the Convention, the vast majority of European Council member-states have developed a procedure for providing legal assistance free of charge or for an acceptable fee in civil and administrative cases.

The right to legal assistance in the interpretation of the European Court is an integral part of a wider notion of the right of access to the court, stipulated by Article 6 of the Convention. [31]

According to Recommendation № R (93) of the First Committee of Ministers of the Council of Europe to its member-states with regard to effective access to law and justice for the poorest layers of society, dated January 8, 1993, states should facilitate effective access of the poorest to court by providing and covering the costs of legal assistance in all adversarial or non-adversarial proceedings. Member-states are also encouraged to create consulting centres in the areas where poor people live. [32]

Ukraine should, accordingly, create the conditions which would guarantee legal assistance to individuals whose income is too small to enable them to defend their interests in court. Legal assistance to people with low-income should be granted free of charge or for an acceptable fee not only in criminal but also in civil and administrative cases, where defence of the most fundamental human rights is involved. The state should facilitate the establishment of community bar associations in bodies of local self-government for rendering legal assistance free of charge to members of the community.

All of the above suggests that Ukrainian legislation needs to provide a better regulated system of access to the courts. In certain cases it should also determine liability of those directly or indirectly preventing citizens from turning to the courts to defend their infringed rights. There is also an urgent need for a law regulating the provision of free legal assistance to people with low incomes. 77.5% of judges surveyed agreed that there was a need for such a law.

Any practising lawyer will tell you how «happily» they defend «free» clients, and how «easy» it is later to receive the money owed them from the State budget. With regard to this, perhaps the idea, suggested by court employees, that the best solution for stimulating the provision of free legal aid would be to provide tax relief to those lawyers involved, should be taken seriously (53 % of those questioned agreed).[33]

The Committee on Legal Policy of the Verkhovna Rada is currently reviewing a draft «On Legal Assistance» № 6320 dated November 9, 2004[34]. The purpose of the Draft is to regulate legal relations with regard to mechanisms for satisfying and defending the right of individuals to legal aid. To achieve these aims, the Draft foresees the creation in Ukraine of a single system of legal assistance outlining the sole subjects providing legal assistance (legal advisors), the types of legal assistance, the principles of legal assistance and the bases and measures for liability in cases where the legal assistance was not of adequate quality.

7. Enforcement of Court Decisions

Failure to carry out court decisions is one of the most urgent problems of access to judicial proceedings in Ukraine. Complaints regarding violation of Article 6 of the Convention due to non-enforcement of the decisions of national courts make up the largest number of appeals made to the European Court of Human Rights against Ukraine. These appeals concern the non-enforcement of court decisions in civil cases, most of all, as regards payment of debts from salaries and social payments. The existing mechanisms for enforcement of court decisions have proven to be ineffective. Courts do not have levers of control to ensure that their decisions are implemented.

Most of the cases that are directed from the European Court for communication with Ukrainian Government deal with Articles 6 and 13 of the European Convention on Human Rights and Article 1 of Protocol 1 to the Convention. The subject of this communication is the adherence by State bodies to the above-mentioned documents with regard to the time taken to carry out the decisions of national courts, when a judgment has been pronounced in favour of the applicant, existence of effective means for legal protection when a court decision is not implemented for a long time, and, in connection with this, when the State interferes in an applicant’s right to peaceful possession of his/her property.

Practice shows that in the majority of cases, violations in judicial proceedings in cases involving the bankruptcy of enterprises which are in debt usually influence the duration of enforcement of decisions of national courts.

The situation is still further complicated by the moratorium on the bankruptcy of enterprises which are partially owned by the State. On the one hand, they do not have the money to carry out the court’s decision, yet on the other, they are prevented by the imposed prohibition from selling the property. This ultimately means that decisions made by Ukrainian courts obliging indebted enterprises to pay their debts cannot be enforced which in turn leads to a violation of citizens’ constitutional rights. The Verkhovna Rada this year considered a draft law to amend the provisions for the moratorium on bankruptcy of these enterprises, however rejected all such proposals.

The European Court paying special attention to the time taken to enforce court decisions in the light of a set of measures taken by a state to accelerate the resolution of internal systematic problems (final resolution on eligibility of decision in case «Sokur vs. Ukraine»; decisions in cases «Piven vs. Ukraine, «Zhovnir vs. Ukraine», «Voytenko vs. Ukraine», «Shmalko vs. Ukraine», «Romashov vs. Ukraine») [35]. The European Court through its decisions declares that state bodies, by not implementing the decisions of the court, have rendered the provisions of Paragraph 1 of Article 6 meaningless.

We should take into consideration that statements on violation of rights were issued after failure to enforce court decisions made by national courts within reasonable time. The time taken to implement court decisions in the above-mentioned cases had varied from 4 to 6 years. The European Court awarded 2,000 to 3,200 Euros for non-pecuniary damage in each of these cases. The amount to be paid as compensation was considerably higher than the actual sum of debt. Thus, legal practice of the European Court shows that the amount of compensation usually depends on the period of delay in implementing a court decision.

The European Court, in the case «Shmalko vs. Ukraine», emphasizes that «Paragraph 1 of Article 6 entitles everyone to address court or arbitration with a claim that deals with any of his/her civil rights and obligations. Thus, this Article proclaims the «right to a trial». The ability to put forward a claim of civil procedure to court is one of the aspects of this right and a manifestation of court accessibility. But this right would be insubstantial if the State legal system was to permit that a final court decision that has binding force could be not enforced if its enforcement might cause damages to one of the parties. Article 6 does not make any sense under the assumption that while describing in detail all the procedural safeguards of the conflicting parties, namely fair public and reasonably timed trial, it does not imply enforcement of court decisions. If Article 6 is interpreted only as a safeguard for access to judicial bodies and judicial proceedings, it might cause situations that contradict the rule of law principle, which is agreed to be respected by all the states that ratified the Convention. Thus for the purposes of Article 6, enforcement of court decision should be viewed as an integral part of «hearings». [36]

As a result of this, the European Court stated that it was impossible to use State financial difficulties as an excuse for non-fulfilment of a court decision of paramount importance for an applicant. The decision dealt with providing compensation to an applicant. State bodies during 1996-1998 had failed to provide him with free medication that he needed to take on day-to-day basis. This is why the European Court considered that the State bodies had been obliged to follow the court’s decision immediately due to age, the health condition and nature of disability of the applicant and to pay all the necessary expenses. The European Court awarded the claimant 1000 Euros for non-pecuniary damage and 300 Euros as compensation for procedural costs.

Usually the European Court adopts a simplified procedure for cases that deal with non-fulfilment of court decisions since they do not contain complex legal issues. This means that, after the Court has agreed that the application is admissible and that its substance is clear, it makes the decision immediately.

«Voytenko vs. Ukraine» is another example of a case when the court decision was not enforced in violation of paragraph 1 of Article 6, Article 13 and Protocol 1 to the Convention. The Government had partially agreed on the necessity to execute the decision made in favour of the claimant, but claimed that the reason for non-enforcement of the decision was lack of budgetary funds and legislative means. In this case, the Court had to consider a delay of four years in implementing the decision. The amount of compensation sum awarded to the clamant consisted of two parts, each of which belonged to different categories of budget classification. Thus the full settlement of one payment of compensation to the claimant in 2001 had not immediately meant any progress on the settlement of the second one. The State did not set aside expenses for the second payment from the Ukrainian State Budget which resulted in a four-year delay period in payment. The Court decided that this four-year delay in justice, aside from violating Article 6, also constituted interference in his right to peacefully enjoy his possessions in the context of paragraph 1 of Article 1 of the protocol to the Convention. The claimant was awarded 2,000 Euros as compensation for non-pecuniary damage and 33 Euros as compensation for court costs.

The lack of proper enforcement of a court decision regarding salary debt also formed the grounds for satisfying the appeal in the case «Zhovner vs. Ukraine» [37]. Here the European Court awarded 3200 Euros as compensation for non-pecuniary damage and 50 Euros in material damages.

Due to the fact that issues involving the non-enforcement of court decisions in Ukraine are under the close scrutiny of the European Court, and that the number of cases directed to the European Court regarding this problem is constantly increasing, there is an urgent need to secure legislative safeguards for human rights protection especially in the area of ensuring that individuals receive compensations awarded to them through court decisions within reasonable time.

Statistics on complaints concerning decisions, actions or omissions of state executive bodies are extremely low, constituting a mere 0.7% of all the cases viewed by Ukrainian courts in 2004. This strange discrepancy is first of all caused by the lack of awareness on the part of the average person as to the procedure for appealing against such actions, since the procedure itself was only introduced on 19 October, 2000 with additions to the Civil Procedure Code, Chapter 31-Г: «Appeals against Decisions, Actions or Omissions of Officials in the State Executive service». Moreover, an appeal with a similar complaint about untimely enforcement of decisions is a prerequisite for subsequent appeals to the European Court, as has been repeatedly indicated in cases against Ukraine.

Accessibility of justice in Ukraine is challenged by non-enforcement of court decisions. Appeals concerning violation of right to a fair trial through non-enforcement of court decisions of national courts form a bulk of all the applications against Ukraine to the European Court of Human Rights. Existing mechanisms for carrying out court decisions have proven to be inefficient. Judges lack control over enforcement of their decisions.

8. Conclusions and Recommendations

The system of justice in Ukraine, despite certain achievements in carrying out court reforms, cannot be considered transparent and accessible. The court system does not meet the needs of judicial proceedings and does not provide sufficient procedural safeguards. Court decisions are often not properly implemented. Judges are neither independent nor highly professional. The Prosecutor’s office still has wide powers which often duplicate court functions.

In order to improve access to the justice system, effective mechanisms for providing state assistance in bearing legal costs should be introduced; the texts of court decisions should be widely publicized; legal and administrative means should be used to decrease the workload of courts; the State should be made liable for damages incurred by parties to legal proceedings as a result of unlawful actions or the inaction of the courts or court structures; the State should lose its monopoly in implementing court decisions.

In the field of criminal justice, measures are needed to ensure effective enforcement of the right of defence of people detained. The practice of sending criminal cases back from the court for further investigation or to the Prosecutor should be abolished, and trial by jury should be introduced.

The rules for civil proceedings should be amended to bring them into line with European standards.

In order to ensure independence of judges it is necessary to take the following steps: to improve funding of judicial self-government; to introduce a transparent procedure for selection of judges; to reinforce safeguards of independent decision-making by judges, which automatically means preventing chairpersons of courts and executive bodies from interfering with judicial proceedings and to establish viable mechanisms for disciplinary liability of judges.

The prosecutor’s office should be deprived of the right to supervise the observance of laws, and also to conduct pre-trial investigation.

Thus in order to improve access to justice the State should:

1) compensate damages incurred by parties to proceedings as a result of unlawful activity or lack of action of judges;

2) stimulate the development of non-judicial means of settling legal issues (notary services, mediation, independent arbitration);

3) promote the establishment of information centres with local courts, giving consultations on the judicial process and disseminating other information on the organizational basics and operation of courts;

4) create conditions for the judiciary to function transparently; to provide public access to texts of court decisions though placing them on websites and making them available in public libraries excluding parts that deal with private and commercial information;

5) introduce mechanisms for providing state assistance in bearing court costs and for providing free or reasonably priced legal assistance to people on low incomes, and also adopt a law «On Legal Assistance» that would regulate which types of legal assistance can be provided, and the grounds and mechanisms for exempting people from payment of fees for legal assistance;

6) improve the system of enforcement of court decisions, de-monopolize state enforcement-related activities, and adopt legislation that would determine mechanisms for implementing the decisions of the European Court of Human Rights;

7) implement judicial control over enforcement of court decisions;

8) bring the powers of the office of the prosecutor into compliance with the Constitution of Ukraine; deprive the prosecutor’s office of functions of general supervision and pre-trial investigation.

For the creation of a stable system of courts of general jurisdiction it is necessary:

1) in cases stipulated by law to recognize general courts as being specialized in the field of civil, criminal, or other trials;

2) to eliminate the system of military courts;

3) to create a system of administrative courts.

In order to create reliable safeguards for courts it is necessary to:

1) limit the administrative authority of court chairpersons, transferring the authority for appointments from court chairpersons to bodies of judicial self-government;

2) fully separate the administration of justice from support and logistic functions.

In the sphere of criminal justice and with regard to organization of activities of courts, investigation bodies and the office of the Prosecutor, bringing the Ukrainian legal system into line with European standards implies reform both of the relevant structures and of procedures. Specifically, these tasks imply immediate:

1) strengthening of guarantees of judicial independence, which includes a significant reduction in the influence on judges imposed by political factors, the judicial administration and a move to non-deficit funding of courts;

2) securing real independence of court experts by managing forensic and expertise institutions through the Ministries of Justice and Healthcare and by developing within law enforcement agencies a many-layered system of units, laboratories and institutes specializing in narrow spheres of criminal research;

3) strengthening the professional independence of employees of the prosecutor’s office by partially decentralizing their service and strengthening the procedural status of prosecutors; it is also time to develop discretional components in the system of procedural prosecutor powers;

4) broadening the guarantees for lawyers’ activity, ensuring real independence of defence lawyers in the judicial process from unlawful influences of judges or prosecutors.

In developing the civil procedural law of Ukraine, it is expedient to bring civil justice into line with European standards, especially as regards review of cases involving aliens, the recognition or enforcement of the decisions of foreign courts.

Administrative justice should envisage:

1) a procedure for settlement of all public law disputes with bodies of power, not only of disputes between individuals and the authorities;

2) public access to the decisions of administrative courts;

3) efficient mechanisms for implementing judicial rulings and relevant control over this enforcement

To improve the status of judges measures should be taken immediately to:

1) make the procedure for selection and career growth of judges as transparent as possible, introduce short training sessions for newly-appointed judges, as well as regular professional development training sessions with an emphasis on human rights;

2) standardize the status of judges of courts of different specialized jurisdictions and develop legislation that would establish a single mechanism of remuneration for judges;

3) establish additional safeguards against ungrounded liability, increase the efficiency of mechanisms for disciplinary proceedings, and introduce relevant institutional changes.



[1] Available on the European Court of Human Rights website: http://www.echr.coe.int/Hudoc.htm (original text), on the human rights RUPOR website http://helsinki.org.ua (Ukrainian text), and on the official webpage of the Ministry of Justice of Ukraine: http://www.minjust.gov.ua.

[2] Ibid.

[3] Level of fulfilment of Regional Programs of Organized Financing of Judicial Activities during 2003-2005 as on January 1, 2005. State Judicial Administration. Available from State Judicial Administration of Ukraine webpage: www.courts.gov.ua

[4] Available from the human rights website RUPOR: http://helsinki.org.ua/index.php?id=1085042799.

[5] Decree of the Cabinet of Ministers of Ukraine «On Adoption of the State Program for Administrative Financing of Judicial Activities during 2003-2005» dated June 16, 2003 // Official Herald of Ukraine. – 2003. – №25. – p. 1197.

[6] The financing of the judicial system is increasing from year to year – Ministry of Finance, Information Agency IAT «Liga», news published on the Internet, 22 January 2004, 09:17, http://www.liga.net/news.

[7] Resolution of a joint extended sitting of the Presidium of the Supreme Court of Ukraine, the Councils of Judges of Ukraine and the Collegium of the State Judicial Administration of Ukraine «Summing up the work of the State Judiciary Administration of Ukraine in 2003, and the priorities for directions in the management of provisions for the activities of the courts in the current year» from 20 February 2004 // Visnyk of the Supreme Court of Ukraine. – 2004. – №5 (45). – С. 9-11.

[8] Available from the human rights website RUPOR: http://helsinki.org.ua/index.php?id=1098084859

[9] О.Сорочкін, А.Бурий, В.Разік, З.Сірик. Відповідність законодавства України статті 6 Конвенції про захист прав людини та основних свобод / O. Sorochkin, A. Buriy, V. Razik, Z. Siryk. Conformity of Ukrainian Legislation and Article 6 of the European Convention on Human Rights and Fundamental Freedoms. – Lviv, 2003. p. 137.

[10] Interim resolution Res DH(2004)14 with regard to court decision of the European Court of Human Rights dated July 25, 2002 (final resolution dated November 6, 2002) in the case «Sovtransavto-Holding vs. Ukraine» (adopted by the Cabinet of Ministers during the 81st meeting of the Ministers on February 11, 2004).

[11] ECHR, Merith vs. Ukraine, Judgment 30 March, 2004.

[12] Valid court decisions may not be cancelled.. On-line edition on human rights RUPOR. Available from: http://helsinki.org.ua/index.php?id=1106064919.

[13] The Draft of the Criminal Procedure Code – a step back from democracy. Available from: http://helsinki.org.ua /index.php?id=1094566365.

[14] Same source.

[15] Available on the European Council website: http://www.coe.int/t/cm/home_en.asp.

[16] Available from: http://www.legal.com.ua/document/kodeks/0CH56006CH50710-99.html.

[17] AvailablefromtheMinistryofJusticeofUkrainewebsite:http://www.minjust.gov.ua/?do=dr&did=1955&sid=comments.

[18] ECHR: two decisions in the case: Campbell and Fell against the United Kingdom, 28 June 1984.:

[19] ECHR, Rinhaisen vs. Austria: Judgment 16 July 1971

[20] ECHR rulings on the following cases: Engel and others (1976), Jong, Baljet and Brink (1984), H.C.M.A. (1989) vs. Kingdom of Netherlands; Findlay (1997), Morris (2002) vs. United Kingdom; Incal (1998), Sahiner (2001) vs. Turkey.

[21] ECHR, Sinclair vs. Turkey: Judgment 28 October, 1998.

[22] ECHR Dobertin vs. France: Judgment 25 February, 1993.

[23] Селюк М.Р. Кому служить військова Феміда? Практика судочинства військових судів України. – Київ., 2003. – с.340. / M. R. Seliuk. Who does the Military Femida Serve? Practice of Judiciary Proceedings in Military Courts of Ukraine. – Kyiv., 2003.- p.340.

[24] В.Разік. Військове судочинство: Порівняльний аналіз судочинства у судах загальної та військової юрисдикції. Київ, 2004, /.V. Razik: Military judicial practice. A comparative analysis of judicial proceedings in courts of general and military jurisdiction, Kyiv, 2004, available on the website of the Centre for political and legal reforms: http://www.cppr.info.

[25] Available on the human rights website RUPOR : http://helsinki.org.ua/index.php?id=1097563805.

[26] З.Сірик, О.Грабовська, В.Разік. Доступність суду в Україні після реформи. / Z. Siryk, O. Hrabovska, V. Razik. Accessibility of Court in Ukraine after the Reform. – Lviv, 2002. p.21.

[27] Available from: http://www.korespondent.net/main/32747.

[28] Available on the human rights website RUPOR: http://helsinki.org.ua/index.php?id=1098084859.

[29] Implementation of basic principles of criminal justice in the Draft of the Code of Criminal Procedure of Ukraine. Available from thewebsiteoftheCentreforPoliticalandLegalReform:http://www.cppr.info/?w=r&i=61&d=153.

[30] ECHR, Airey vs. Ireland: Judgment 9 October, 1979.

[31] Правова допомога: Зарубіжний досвід та пропозиції для України // Автори-упорядники О.Банчук, М.Демкова. / Legal Assistance: International Experience and Proposals for Ukraine // O. Banchuk, M. Demkova. – Kyiv, 2004, p. 11.

[32] Куйбіда Р.О. Реформування правосуддя в Україні: стан та перспективи / R. Kuibida. Justice Reform in Ukraine: Current State and Prospects. – Kyiv, 2004. p. 225.

[33] О.Сорочкін, А.Бурий, В.Разік. Відповідність законодавства України статті 6 Конвенції про захист прав людини та основних свобод / O. Sorochkin, A. Buriy, V. Razik: Compliance of Ukrainian Legislation to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Lviv, 2003, p. 136.

[34] Draft «OnLegalAssistance».Availablefrom:http://www.rada.gov.ua:8080/pls/zweb/webproc4_1?id=&pf3511=19318.

[35] Available on the European Court of Human Rights website: http://www.echr.coe.int/Hudoc.htm (original text), on the human rightsRUPORwebsite(Ukrainiantext)http://helsinki.org.ua/index.php?r=9&t=1.

[36] ibid.

[37] ibid

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