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17.03.2007 | Anna Pravdina

A judge won’t stand in judgment on a judge

   

Who would you say is the most immune and virtually untouchable in this country? if you thought politicians, think again – it’s judges.

The story here began on 21 February 2006, just before the parliamentary and local elections. That day Judge Natalya Viktorovna Hrydyna of the Suvorovsky District Court in Kherson was hearing a case between the Kherson branch of the Congress of Ukrainian Nationalists and the regional electoral commission over registration of candidates for deputies of the Regional Council.

No journalists at my hearing!

The Committee of Voters of Ukraine [CVU] carries out independent monitoring of the legality of electoral processes, this including gathering information about court cases. Oleksandr Shapovalov, a legal consultant for the Kherson CVU and a journalist from the newspaper “Free choice” was sent by the chief editor to the above-mentioned court hearing. Yet as soon as he walked into the Judge’s office and introduced himself, Ms Hrydyna leapt to her feet and angrily demanded that he “get out”, saying that the journalist would by his presence interfere with her hearing the case (he didn’t have a video recorder, camera or dictaphone with him, these often “disturbing” our judges).

Oleksandr refused to comply with this clearly unlawful demand, knowing that any person has the right to be present at an open court hearing (with closed hearings possible only in order to prevent the disclosure of state or other secrets, protection of person or family life and in some other cases). At that point, Natalya Viktorovna interrupted the hearing, through everybody out of her office, called the court guards, positioned them at the doors and again led the parties to the court hearing in – all except the journalist.

To court against a judge

Oleksandr Shapovalov was not prepared to accept this infringement of his rights and the public interest in receiving objective information. He therefore put together a report on the event and had this witnessed by those individuals present in the court. The next day he lodged an official request for information in the office of the court, demanding written explanations and copies of the decisions taken with regard to him.

A week later he received answers from Ms Hrydyna and the Secretary of the Court Kolesnychenko that “no procedural documents were made with regard to you … the provision of information in response to your request is not envisaged by current legislation”. And, as Judge Hrydyna considers, the Law on Information does not apply to the courts. Even though Article 32 of this Law clearly states: “a request for written or oral information shall be understood as a statement requesting oral or written information relating to the activities of legislative, executive, and judicial authorities of Ukraine, as well as officials thereof with regard to certain matters”.

Not wanting to stop halfway, Oleksandr decided to appeal against the decision of the judge in court. The suit was filed on 2 March 2006. That was just the beginning.

How judges examine civil lawsuits from holiday ..

The Regional Court decided that for the sake of impartiality the case should be heard in the Dniprovsky District Court in Kherson. The case took a month to reach the court. According to Article 107 of the Code of Administrative Justice (CAJ), the decision whether or not to begin proceedings must be made no later than the day after a claim is lodged. Yet as it transpired a month later, the claim was submitted for consideration to Judge Volodymyr Polyvyany who had just gone on holiday! Subsequent events are even more interesting.

“The case was closed due to the non-appearance of the respondent”

Polyvyany, having returned to work, repeatedly postponed the hearing due to the non-appearance of the respondent Ms Hrydyna, the need to call witnesses, to receive explanations from the court guards, etc. Then suddenly in July it turned out that the case had been closed, and a month earlier at that! The grounds for this decision were the “repeated non-appearance of the claimant at the court hearing without good reason” (Article 155 of the CAJ). Perhaps Oleksandr became disillusioned and “let things run their own course”, or was subjected to “pressure” and got scared?  No, it’s all very simple: he was not informed about the last two court hearings neither verbally, nor in writing (although he should have received notification at least 7 days before the hearing).  But that’s not all: in Polyvyany’s judgment a “small” error appeared which changed the thing radically. Instead of “the repeated non-appearance of the claimant”, the judge wrote “the non-appearance of the respondent”, i.e. Hrydyna. The situation proved unprecedented: you take somebody to court, they don’t turn up and so they close the case –  you don’t know whether to laugh or cry.

“Tightening of discipline, raising the cultural level and responsibility of employees of the court service”

Oleksandr Shapovalov filed an appeal and also sent complaints to the Regional State Judicial Administration and the Regional Judicial Council about the unsatisfactory organization of the work of the courts. He received the following reaction.

The Judicial Administration notified him that it had asked the Secretary of the Dniprovsky District Court Ryabova to look into all the facts in the complaint and asserted that the secretaries of all local courts in the region had been advised to “discuss at an operations meeting issue regarding tightening discipline, raising the cultural level and responsibility of employees of the court service”. Well,  thank you for that at least! (although a copy of the said letter could only be received after several months and having complained to the State Judicial Administration of Ukraine).

The Judicial Council simply handed the complaint to the same Ms Ryabova who did not even try to look into the situation, confining herself to a registration card and referring to the absence of a case in the district court. It proved interesting. On 24 July, the Secretary of the Court Council signed that the complaint was being sent to the district court, while the secretary of the district court later answered that the case had been sent on 2 August to the regional court together with the appeal (arriving on the 6th). They missed each other by chance?

The judge mixed up the procedural codes

Meanwhile a month passed, and Oleksandr received yet another document for his personal collection of gems of “court idiocy” (there’s no other way to put it). The judge of the regional court I.A. Kapitan ruled that the appeal not be considered because the time limit for its submission had been exceeded. Having predicted something similar, Oleksandr specially indicated in his appeal that in accordance with Article 188 of the CAJ a person not summoned to a hearing may appeal the court ruling within 5 days from the date when the copy of the judgment was received (which, pursuant to Article 167 must be sent immediately, and not a month later when visiting the court). However the judge not only didn’t notice this “hint”, but actually muddled the codes!  The judgment had been based on the Civil Procedure Code and not on CAJ (by accident?)  Well, it’s hard for judges these days – so many codes have appeared. 5 whole codes (with the Criminal, Economic and Code of Administrative Offences). You can muddle them, we’re all human.

“It is not possible to examine the case since there is none …”

Appalled by such a level of legal iliteracy among judges Oleksandr turned to the Higher Administrative Court, and also made another complaint to the local Judicial Administration and Judicial Council. And this had an effect: the rejection of the case by Judge Kapitan was declared mistaken and the appeal was accepted for consideration. And it was only at the hearing that it turned out that the case … was missing! It transpired that the suit with the attachments had been returned to Shapovalov, then submitted by him again to be added to the appeal, however the office of the district court had “forgotten” to pass it onto the regional court.

This “court error” was soon rectified and the panel of judges of the regional court established that the “court had examined the case in the absence of the claimant, not having properly informed the latter of the time and place of the court hearing”. The case was therefore returned to Judge Polyvyany to be continued.  But it only proved possible to get a copy of the ruling of the appeal court three months later, after a complaint to the regional Judicial Council.

The case is closed – the respondent has gone away

However, as soon as the case reached the Dniprovsky District Court, Polyvyany issued the following judgment: “At the present time Judge N.V. Hrydynf is a judge of the Odessa Regional Appeal Court. Therefore this court is not competent to consider the claim and it should be returned to the claimant…” As you see, everything in our country is upside down.

The next appeal was submitted. And again the ruling issued by Judge Polyvyany was declared unlawful, and the case returned to him for “the consideration of the merits to be continued” (with the journey from the regional court to the district court taking an entire month).

So is it worth taking judges to court?

And the continuation? Half a year has passed, nothing has moved, only lots of paperwork (1 claim, 2 appeals, 1 cassation appeal, 10 complaints). Maybe it wasn’t worth starting such a hopeless venture? However Oleksandr Shapovalov thinks differently:

“Why in our country has the lawlessness of officials flourished and still continues to flourish now? After all over 15 years of independence parliamentarians have reformed most of the Ukrainian Soviet legislation. However laws are not obeyed and the inspectorates, administrations, police and prosecutor’s office often do nothing. The last hope is the court, but here also we don’t find justice. What’s to be done? If each person makes their contribution to public control over the judiciary, this will help to clean up the judiciary and enforcement bodies and get rid of “criminals in court gowns and uniforms”. These bodies in turn will safeguard a proper justice system and real control over other officials”.

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