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16.11.2006 | Yury Vasidlov

Corruption in delirium?

   

Mr N. has lived in Ivano-Frankivsk for many years. On one occasion a strange thing happened. The major electricity company, the open joint stock company Prykarpattyoblenergo demanded money from him. Supposedly money he owed, although not for electricity, but for heating. The demand seemed like delirious ravings. Mr N. did not owe any money, so he didn’t pay. The delirium continued. Now the city prosecutor appeared on the scene and took Mr N. to court for damages caused the state as represented by the company Prykarpattyoblenergo [hereafter the Company]. The prosecutor’s court suit was delirium multiplied, since the prosecutor has no right to take an individual to court over civil damages the Company does not personify the interests of the state, and the debt was in no way confirmed. The delirium was, clearly, infectious, since the court accepted this ridiculous suit and tormented Mr N. for several years. It was finally proven that Mr N. did not owe the money alleged. Seemingly the delirium had cleared. However it was in fact only the beginning of the madness.

All that time the Company imposed extra-judicial pressure on Mr. N, three times cutting off his electricity. A kind of racket. Therefore, having been vindicated, Mr N., in accordance with the Civil Code, took the Company to court for one of the three occasions. The case was very simple since, certainly of their impunity, the Company had cut the power off without any pretence of legality. Nonetheless, the court, represented by her Honour, Judge L.V. Perehinets, dragged the decision out for more than a year. The Company’s guilt became more and more evident. Then her Honour Judge L.V. Perehinets suddenly passed an extraordinary ruling, reclassifying the Company from an economic party to a subject of state powers. That means into a state authority. Through this complex permutation, her Honour transferred the case from civil to administrative legal proceedings, specially for state authorities. And in administrative court proceedings, the time period for lodging a claim is three times shorter – 1 year. Through this unlawful manipulation the Judge absolved the Company of liability since the time period had expired.

Mr N. nonetheless considered that this was madness and that the Company was not a state authority, that the case was not within the jurisdiction of administrative legal proceedings, and that the Company should answer for their lawless behaviour. He appealed the ruling of Judge L.V. Perehinets.  The panel of judges in civil proceedings of the Ivano-Frankivsk Regional Appeal Court, their Honours I.V. Boiko, A.T. Pavlyshyn and V.V. Shyshko upheld the ruling. The court furthermore created an insurmountable obstacle for further appeal by not giving Mr N. access to the material of the case and not providing on his request a copy of the ruling. The delirium continued.

We won’t spell out how, but the case did fall into Mr N’s hands for a few minutes and he managed to appeal the ruling in the capital. The Higher Administrative Court decided that the case was not one for administrative proceedings and did not even consider it.

The situation had finally clarified a little. Her Honour, Judge L.V. Perehinets, had acted against the law, and this unlawfulness had now received the highest confirmation.

Furthermore the actions of her Honour were incredibly reminiscent of the violation under Article 5 of the Law of Ukraine On fighting corruption: giving preference to individuals or legal entities when handing down a ruling.

Mr N. sent the court a formal request for information as to what had guided the actions of her Honour, Judge L.V. Perehinets when she passed her ruling about the state powers of the Company. In violation of the Law on Information his Honour, the Head of the City Court A.Y. Mapyeev refused to provide this information. The actions of his Honour were also extraordinarily reminiscent of that same corruption law prohibiting the refusal to provide individuals and legal entities with information, where the provision of such is stipulated by legal acts.

Staggered by this corruption look-alike, Mr N. approached the institution which day and night wages an untiring battle against corruption, the SBU [the Security Service of Ukraine]. A month passed, and then another. In violation of the Law of Ukraine “On citizens’ appeals” and of the above-mentioned law on corruption, the fearsome department did not provide any response. It proved necessary to take the SBU to court for not providing a response to a complaint about the fact that the court had not provided an answer. A vicious circle, and the madness continued.

Meanwhile Mr N. lodged a suit against the unlawful actions of the Company in cutting his electricity supply the second time. It turned out that this suit would be given consideration…. by her Honour Judge L.V. Perehinets. The same delirium intensified.

Her Honour had already unlawfully given preference to one party in a similar dispute, by shortening the time period for submitting a claim. If she had done this deliberately, then she was not impartial as regards the parties to the dispute.  But had she done this disinterestedly?

According to sociologists’ estimates, corruption in Ukraine has reached monstrous proportions. 65% of the adult population are prepared to pay bribes. The European Union officially considers Ukraine one of the most corrupt states in the world, while experts from the World Bank estimate the amount paid in bribes in Ukraine as being at the level of two months of the trade turnover of the country. Corruption is paralysing the state authorities and the force of laws. They point to the courts as the branch of power where corruption is most rampant. Lawyers themselves, when asked, cite the high level of corruption and low professional level of judges as among the main problems of the courts.  9.7% of them (lawyers and prosecutors together with judges) admitted that they received unlawful payments. The respondents from the non-judicial sphere knew of cases when a bribe was given for the passing of a lawful ruling (60.5%), and cases of bribe-taking to have an unlawful ruling passed (47.5%). Does this have any bearing on our story?

Judge L.V. Perehinets through her consciously unlawful actions saved the Company from paying over 50,000 UH in compensation. Is it possible to imagine that her Honour did not receive any recompense from the beneficiary?  It’s possible. However one needs amazing powers of fantasy.

All the more so since the bribe takes practically no risk. The likelihood of being punished for corrupt dealings remains negligibly small. Last year in Ukraine less than four hundred people were convicted of such crimes. It is another matter if her Honour passed the unlawful ruling unconsciously. She made a mistake. However could legal proceedings be carried out by a person who can make such a flagrant mistake?  Did she gain awareness of her wrongful action? Guilt pangs?

Mr N. lodged an application to have the judge removed who had already reviewed the dispute of the same parties over the same relations and had given unlawful preference to the respondent either through her own lack of impartiality, or through her lack of professional skill. This was the application he lodged with the court. The application regarding the impartiality and lack of professional skill of Judge L.V. Perehinets was reviewed by … her Honour Judge L.V. Perehinets, who found herself to be sufficiently objective and qualified, and retained herself as Judge in the dispute. Total bedlam.

Mr N. considers that her Honour, Judge L.V. Perehinets can not carry out legal proceedings guided by the law, and also impartially. And what do you think?

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