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Human rights in Ukraine – 2007. 4. The Right to a Fair Trial

   

[1]

1.  Overview

The right to a fair trial is guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It is not, however, explicitly secured either in the Ukrainian Constitution or in legislation, with only individual aspects protected by law.

This section assesses specific aspects of the right to a fair trial.

In December 2005 the National Commission for the Strengthening of Democracy and the Rule of Law which is a permanent advisory-consultative body under the auspices of the President began drawing up a Strategy Concept for Judicial Reform. On 10 May 2006 the President approved this Strategy Concept for improving the justice system to ensure fair trial in Ukraine in accordance with European standards[2], prepared by the National Commission.

Later, in order to implement the Strategy Concept, several draft laws were prepared which the President submitted to parliament. In April 2007 these drafts were placed on the parliamentary agenda, however before their consideration it transpired that the President had sent a letter recalling them.  He had “changed his mind” about supporting judicial reform due to pressure from the Supreme Court[3] and for other reasons of political expediency.

Since according to parliamentary procedure, draft laws on the agenda cannot be withdrawn, they were considered and passed by parliament in their first reading. Their future progress was however hampered by the dissolution of parliament.

Later the President changed the makeup of the National Commission for the Strengthening of Democracy and the Rule of Law.[4].  Some of those who had taken a direct role in drawing up the Strategy Concept and the relevant draft laws were removed, and some currently serving judges and employees of the judiciary were included. The new members of the Commission immediately created a subcommittee with the task of revising the Strategy Commission passed by the President. These actions in practice prove that the President has renounced his attention to introduce the Strategy Concept he approved despite the fact that it received favourable assessments from international experts from the Council of Europe, scholars, human rights defenders and judges of lower level courts.

The fate of judicial reform is now in the hands of parliament and the President who have, under pressure from the Supreme Court, virtually rejected its introduction.

Fair court proceedings and proper defence of human rights and fundamental freedoms are possible only where there is good procedural legislation. However legal regulation of criminal justice has not been reformed since Soviet times. The Criminal Procedure Code of Ukraine from 1960, despite some updating, does not meet European standards with regard to human rights protection. The economic courts examine disputes applying rules which are not in line with contemporary trends in civil legal proceedings.  Despite the adoption of the Code of Administrative Justice of Ukraine, a law has yet to be passed on administrative procedure which would define the standard relations between an individual and the authorities (public officials) adherence to which should be verified by the administrative courts.[5].

Cases involving administrative offences are generally examined with infringements of a number of standards of the right to a fair trial, numerous restrictions on the right to defence and the lack of possibility of appealing a ruling in the appellate courts, etc.

Following the judgment of the European Court of Human Rights in the case of Gurepka v. Ukraine, the Supreme Court issued a letter to appellate courts asking that they accept for examination appeals in cases involving administrative offences. The issue of such a letter runs counter to norms of legislation however does comply with the relevant norms of the European Convention on Human Rights and serves to protect the right to a fair trial. Another failing of this letter was that now many cases accumulate at cassation review in the Supreme Court, with this having significantly increased the workload of higher courts.

During 2007 there were also a number of conflicts directly linked with the judiciary which clearly demonstrated the lack of independence of the judiciary and judges. One has in mind the conflict over the Constitutional Court, over the Pechersky District Court in Kyiv, over the issue of appointment of judges to administrative positions, the blocking of work and politicization of the High Council of Justice, and others.

As of February 2008 there were 780 courts:  666 local general jurisdiction courts; 13 military garrison courts; 27 appellate courts of general jurisdiction; 2 military appellate courts; 11 appellate economic courts; 27 local economic courts; 7 appellate administrative courts and 27 district administrative courts.[6]  Around 5, 604 are on the staff of these courts.

During 2007 local and appellate courts examined approximately 8 614 517 cases and files, this being around 17.83% more than in 2006 and over 40% more than in 2005.  At the same time, around 74, 883 cases remained to be examined (against approximately 24, 326 in 2006).[7]

2.  Independence of courts and judges

In this area two problems need to be differentiated: independence of the judicial branch of power and independence of particular judges both from bodies of other branches of power and within the judiciary itself.

In 2007 a number of serving judges of the higher courts became members of a consultative and advisory board under the auspices of the President and began taking part in legislative activities which are not part of the scope for members of the judicial branch of power.  The following became members of the National Commission for the Strengthening of Democracy and the Rule of Law:

-  Andriy Vasylyovych Hnatenko – Chairperson of the Civil Proceedings Chamber of the Supreme Court;

-  Viktor Vasylyovych Kryvenko – Chairperson of the Administrative Proceedings Chamber of the Supreme Court;

-  Mykola Ivanovych Melnyk – in charge of the service of the Speaker of the Verkhovna Rada;

-  Oleksandr Mykhailovych Pasenyuk – Chairperson of the Higher Administrative Court;

-  Petro Filipovych Pylypchuk – Head of the Council of Judges, First Deputy Chairperson of the Supreme Court;

-  Ivan Bohdanovych Shytsky – Chairperson of the Economic Proceedings Chamber of the Supreme Court..

Just on 25 April the Head of the Supreme Court V. Onopenko had asked the President to be removed from the National Security and Defence Council [NSDC][8]  Article 107 of the Constitution states that the NSDC is the coordinating body to the President and co-ordinates and controls the activity of bodies of executive power in the sphere of national security and defence. In view of this, membership on this body by the Head of the Supreme Court also aroused serious arguments against the independence of the judiciary. On 3 May the President removed Onopenko from the NSDC.[9]

On 23 November 2007, after a long meeting in the Security Service [SBU] attended by representatives of the law enforcement agencies, controlling bodies and judiciary, the President issued a Decree on creating an Inter-departmental Working Group on Combating Smuggling and IInfringements of Customs Rules. As the Supreme Court itself reports^

“in accordance with this Decree representatives of the Supreme Court of Ukraine were invited to join the Inter-Departmental Working Group. Given that the courts are the final stage in combating smuggling and infringements of customs rules, the Supreme Court over the last three months has within the scope of its competence yet again taken a range of measures aimed at protecting the national interests of the country in the customs sphere …

The Supreme Court informed the President about the measures taken and their results. Information on these issues was sent to the Co-Chairs of the Inter-Departmental Working Group on Combating Smuggling and Infringements of Customs Rules, the Prosecutor General O.I. Medvedko and the Acting Head of the Ukrainian Security Service V.O. Nalyvaichenko.  The relevant letter to the State Customs Service was prepared which drew attention to the need to eliminate shortcomings in the work of the customs bodies.”[10]

Such interest from the Supreme Court in State interests and the constant way it informs various authorities elicit well-founded doubts as to the independence of the courts in examining, for example, cases involving smuggling. In such cases the prosecutor’s office defends the State’s interests, individuals defend their own rights and interests and the court must decide on the basis of the evidence presented who is right, and not appear as an additional defender of the State’s interests.

The State Judicial Administration of Ukraine [SJAU], which is a central authority, in May 2007 began monitoring court suits against the actions of the Cabinet of Ministers and Prime Minister Viktor Yanukovych. The Head of the SJAU Ivan Balaklytsky informed that the relevant instructions had come from the Ministry of Justice and the First Deputy Minister of the Cabinet of Ministers Olena Lukash.[11]

On 17 May 2007, the Verkhovna Rada, exceeding their constitutional powers, passed a Resolution “On an attempt to manipulate the Pechersky District Court in Kyiv and influence the activities of the Central Election Commission [CEC]”. This not only gave a negative assessment of a ruling from the Pechersky District Court handed down on 11 May 2007 which allowed a suit lodged by the electoral bloc of political parties “Bloc of Yulia Tymoshenko” against the CEC, , but also proposed a mechanism for dealing with the judges who had taken part in considering the case. The Verkhovna Rada proposed, and effectively bound the Prosecutor General, the High Council of Justice to carry out a check into the circumstances around the passing by the Pechersky District Court of its ruling from 11 May 2007, although these bodies do not have such powers and this was direct interest in the justice system. The Resolution also ordered the Verkhovna Rada Committee on the Justice System, the chair of which was also a member of the High Council of Justice, to prepare and submit when documents from the High Council of Justice arrive on the results of the check drafts of the relevant decisions[12] (this refers to documents for dismissing judges).

The acting head of the Dnipropetrovsk Regional State Administration Viktor Bondar during an extended session of the Board of the Dnipropetrovsk Regional Prosecutor’s Office expressed his readiness to initiate and together with the management of the Regional Prosecutor’s Office to create a register of judges who hamper the examination of important court cases. “I am ready to initiate such a conversation with representatives of the higher body of justice, he stressed, and insist that these judges are punished. A few of these cases and we will put an end to this unhealthy practice.”[13]

These and many other examples vividly demonstrate the problem of independence of judges. It is clear that the latter find themselves under pressure when resolving issues of public importance, especially if other public bodies have an interest in a certain resolution of the issue.

The selection procedure for judges is non-transparent which can set the ground for abuse and dependence of the judges on the public officials involved in this procedure.

In 2007 the State Judicial Administration processed 481 files on appointing first-time judges. Of these 331 were from the territorial departments of the State Judicial Administration; 70 from the Higher Economic Court; 80 from the Higher Administrative Court.  The SJAU’s work resulted in 126 submissions being made in accordance with established procedure to the Supreme Court and higher specialist courts on appointing 482 judges.[14]  803 posts for judge remained vacant as of 1 January 2008.

Parliament did not work through virtually all of 2007. Due to this many courts reached a crisis situation with the term of office of serving judges having expired. After the first five years in office, a judge cannot work as a judge without being appointed judge for life by parliament. Last year 447 submissions to appoint lifelong judges accumulated in parliament. As a result of this in some district courts there was only one serving judge, in 30 – two judges.[15]

There is no clear legally established system for determining judges’ remuneration. An inadequate level of material provisions for judges has made such positions unattractive for highly-qualified lawyers. At the same time, the favourable conditions the posts offer for receiving certain benefits which are questionable from the point of view of their legality, are leading to their becoming attractive to people whose aims have nothing in common with the impartial administering of justice. It should, however, be noted that there has been an increase in judges’ salaries over the last two years.

The inadequate material and social provisions for judges, especially those of local courts, place the independence of judges in jeopardy. This is exacerbated by a lack of appropriate financing of the courts which forces the latter to seek other options for meeting their requirements with regard to a good level in administering justice.

The bestowal of State awards by the President and Cabinet of Ministers on particular judges is also of concern since this can elicit doubts as to their independence from the executive branch of power. For example, to mark the Day of Court Lawyers the President awarded the Order “For services”, Class III, to judges of the Supreme Court Mykola Patryuk and Ihor Samsin, while Tamara Prysyazhnyuk was awarded the Order of Princess Olha, Class III. Cabinet of Ministers Certificates of Honour for a significant contribution to protecting human rights and civil liberties, and impeccable work in the judiciary were awarded to Supreme Court judges Vera Vereshchak, Volodymyr Konovalov, Valentin Kosaryev, Kostyantin Kravchenko, Natalya Panevych, Mykola Patryuk, Oleksy Synyavsky, Oleksandr Fedchenko, Fedir Chernohuz and Stanislav Shchotka.

Judges in administrative posts carry out administrative and economic functions not intended for judges. The chairpersons of courts distribute cases among judges, form panels of judges for review of cases, have influence over judges’ career issues and social provisions (holidays, bonuses, etc). The chairpersons of courts in turn, due to the need to get additional funds for the court, depend on those who allocate these funds: local and central authorities, as well as commercial enterprises.

It was for this reason that throughout the year there was such a fierce battle between the President, parliament and the Council of Judges for the right to appoint the chairpersons of courts.

It is not uncommon for judges in handing down judgment to experience pressure both from the authorities, and from the interested parties.

An ineffective system of judge accountability in some cases allows them to avoid professional liability, while in others creates favourable conditions for exerting pressure on those judges who demonstrate independence and integrity in their work.

During 2007 there was a considerable rise in the number of criminal investigations and disciplinary proceedings initiated against judges. This can be attributed to the desire to fight corruption, however it should also be viewed as a form of pressure on judges since the procedure for such cases is not clearly defined.

At the beginning of January 2008 the Supreme Court submitted for consideration by the Verkhovna Rada an application by the Prosecutor General for consent to the arrest of a judge of the Prymorsky District Court in Odessa. The application was made in connection with a criminal investigation carried out by the Prosecutor General against the judge over indications of the crimes set down in Article 375 § 2 (the handing down by a judge of a knowing wrongful ruling); Article 364 § 2 (abuse of power or official position); Article 366 § 2 (producing fake documents in ones official capacity); Article 190 § 2 (fraud) and Articles 27 § 5 and 190 § 4 (abetting fraud) of the Criminal Code. The application states that the grounds for asking for permission to arrest the judge are the latter’s failure to appear before the pre-trial investigation unit for questioning as a person accused, her obstruction of the pre-trial investigation unit in establishing the truth in a criminal matter, ignoring the requirements of the investigation unit making it impossible for the latter to conclude the investigation into the given case. These indicate the need to remand her in custody as a preventive measure.[16]

The Supreme Court upheld the verdict of the Zaporizhya Regional Court of Appeal which sentenced Judge of the Dniprovsky District Court in Dniprodzerzhynsk (Dnipropetrovsk region) I.I. Zaitseva on charges of bribery to 3 years imprisonment with confiscation of her property and a ban on holding any position in the law enforcement bodies or courts for three years.

The Supreme Court allowed a cassation appeal from the prosecutor’s office against the sentence passed by the Luhansk Regional Court of Appeal against a judge of one of the district courts of the city of Horlivka in the Donetsk region, charged with abuse of power, embezzlement of State funds allocated to play mine employees of a sum of 266 thousand UAH by handing down wrongful judgments. The case was sent for a new examination.[17]

On 5 April the Verkhovna Rada passed a resolution dismissing Judge of the Mukhachevo City-District Court of the Transcarpathian region Volodymyr Monych. He had become prominent earlier by passing a judgment on a suit brought by Ihor Kril, deputy from the Nasha Ukraina [Our Ukraine] faction prohibiting the then Speaker of the Verkhovna Rada Oleksandr Moroz from signing and publishing the Law on the Cabinet of Ministers.[18]

On 15 August, the Prosecutor General, together with the police, reported that charges had been laid of taking a bribe of 2, 500 US dollars against the Chairperson of one of the district courts in the Donetsk region. It was also reported that his property had been frozen.[19]  On 22 October the case was passed to the Supreme Court in order to determine jurisdiction.[20]  Overall the prosecutor’s office informed of criminal files being submitted to the court in respect of three chairpersons of courts – the Artemivsk, Khartsyzky and Shakhtarsky city-district courts in the Donetsk region.

On 26 November 26 the Prosecutor General informed that the Odessa Regional Prosecutor’s Office had initiated a criminal investigation against the chairperson of the Baltsky District Court over indications of the crime set down in Articles 364 § 2 and 366 § 2 of the Criminal Code. Unidentified individuals seeking to obtain property not belonging to them by means of deception had approached the Baltsky District Court with a falsified law suit apparently from the director of one of the private enterprises in Odessa against a limited liability company claiming debts of over 3 million UAH. The judge, despite the fact that all parties in the case were legal entities and therefore, pursuant to the regulations of Article 1 of the Civil Procedure Code, the dispute should have been examined in an economic court, abusing his official position and acting in the interests of the enterprise, passed a ruling ordering the limited liability company to pay the enterprise the amount of debt demanded in the claim. The Odessa Regional Court of Appeal revoked this ruling and terminated the proceedings in the case. The pre-trial investigation with regard to the criminal charges is being conducted by the Odessa Regional Prosecutor’s Office.[21]

The press service of the Transcarpathian Regional Prosecutor’s Office on 18 January 2008 informed that a criminal investigation had been initiated over a knowingly wrongful sentence handed down by a judge of the Irshavsky District Court (Article 375 § 1 of the Criminal Code). According to the report from the Assistant Prosecutor of the Irshavsky District, who was one of the parties to the examination of the criminal case, the judge flagrantly violating the confidentiality of judges’ council, issued a knowingly wrongful acquittal outside the consulting chambers with respect to Ms. P.  In the Assistant Prosecutor’s view, the judge had unlawfully acquitted the woman on only one of the crimes she was charged with - receiving a bribe, and did not touch on whether she was guilty of the other crimes. Furthermore, in breach of the Criminal Procedure Code, he had declared the verdict in the courtroom but did not provide the defendant with a copy within the stipulated thirty-day period.[22]  This case suggests, on the one hand, possible unlawful actions by the judge, but on the other, how vulnerable a judge can be when one of the parties, after the court examination, can initiate a criminal investigation against him or her. Unfortunately there is no information about the later developments in this case, however there is also nothing to show that the judge has been removed or convicted.

In January 2008 the Zhytomyr Regional Prosecutor’s Office initiated a criminal investigation against a judge which it alleges handed down an unlawful sentence. According to the Deputy Prosecutor Volodymyr Kobernyuk, on the results of a joint check carried out by the Prosecutor’s Office and the SBU Department for the Zhytomyr region, the criminal investigation was launched against a judge of one of the district courts in the region under Articles 364 and 366 of the Criminal Code (abuse of official position and faking documents in ones official capacity). He added that the judge in abusing his official position had acted in breach of the requirements of current legislation. He had added to an official document, namely a verdict, information which he knew to be false. Mr Kobernyuk said that as a result of the judge’s actions, the defendant had been found guilty of unlawfully selling narcotics as a repeat offence and ordered to pay a fine of one thousand UAH, whereas for this crime, the article of the Criminal Code stipulates deprivation of liberty for a period of from 5 to 10 years..[23]  There is no information about the further course of the investigation into this case. However it is staggering how easily, without a court conviction and in breach of the presumption of innocence, representatives of the prosecutor’s office and the SBU have circulated information about a crime apparently committed by the judge. We are talking here, moreover, about a case in which they were a party to the process since they were presenting the criminal charges.

The flawed procedure for initiating criminal proceedings against judges thus makes it possible for the prosecution to use this to exert pressure.

According to prosecutor’s office figures, during 2007 5 criminal investigations were completed into charges against judges of city and district courts of taking bribes, passing knowingly wrongful court rulings and other official crimes. 19 other cases are with the investigation units of the prosecutor’s office.

Whereas in 2006 the Prosecutor General initiated submissions to the Higher Council of Justice to have 4 judges dismissed for infringements of the law during judicial examinations, in 2007 such submissions were made with regard to 41 judges.[24]

Administrative pressure is much more often brought to bear on judges via disciplinary proceedings, as well as proceedings over violating their judge’s oath. The latter generally provides wide scope for manipulating the wide-ranging content and inexact text of the oath.

For example, the Supreme Court accused the Higher Council of Justice of being overtly partisan, recalling cases when judgments concerning some judges had not been passed for months, while in others the judgments were passed immediately without even hearing opinions about the judge.

One can also note the activity of the qualifying commissions of judges involved in bringing disciplinary proceedings against judges.  There is a clear imbalance in that members of the public may not initiate disciplinary proceedings. Such proceedings are initiated solely on the application of representatives of the authorities: the Ministry of Justice, National Deputies, chairpersons of councils of judges of the regions (effectively, chairpersons of the courts), chairpersons of the Supreme and Higher, specialist courts, the Human Rights Ombudsperson. The procedure for considering the question of disciplinary proceedings is also not legally defined.

 

Information on disciplinary proceedings brought against judges by qualifying commissions of general court judges 2003-2007[25]

Year

Disciplinary proceedings initiated

Disciplinary charges brought

Reprimands issued

Qualification status of the judge reduced

Decision taken to recommend that the Higher Council of Justice dismiss the judge

2003

178

58

43

8

7

2004

284

129

99

10

20

2005

241

114

80

6

28

2006

232

112

82

8

22

6 міс. 2007

202

46

38

8

15

 

Various forms of influence upon judges are applied, ranging from letters, telephone calls and personal visits to the judges and chairpersons of the courts, to open criticism of the court rulings in specific cases if they have a different view as to a just outcome. Such non-procedural relations between different parties and the judge are not prohibited by law and are a common occurrence.

The following Resolution No. 3 from the Plenum of the Supreme Court on 13 June 2007 “On the independence of the judiciary” can be considered a reaction to the systematic interference in the work of the courts:

“In practice the legislative body, and other executive structures and their officials ignore the constitutional principle of division of power into legislative, executive and judicial. There are attempts to interfere in organizing the work of the courts, resolving specific court cases, obstruction to the courts’ exercising of justice on legally designated principles; pressure on judges through threats, blackmail or other forms of unlawful influence; including through the passing of unlawful normative legal acts  and legal acts of individual force; illegal use of powers; as well as the unlawful allocation of the relevant powers to some state structures which increases the dependence on them of courts and judges.

Over recent times cases of pressure on judges and interference in the work of the courts have taken on a systemic and overt character, including during judicial examination of cases, creating a corps of judges, appointing judges to administrative posts, and determining issues of judges’ responsibility. There are flagrant infringements of the legally established procedure for holding judges liable as regards establishing the grounds for liability, time periods for holding them accountable, ensuring the possibility for judges to use all legally established means for their defence while issues of liability are being determined. In the activities of those responsible for deciding on judges’ liability one sometimes see a biased approach and attempts to punish judges for their professional activities. The checks carried out by such people go beyond the limits of their jurisdiction and obstruct the fulfilment by judges of their professional duties (this is seen, for example, in unlawful removal of court cases, demands to provide confidential  information from the consulting chambers)”

The extraordinary congress of judges of Ukraine also spoke of the rising pressure on the judiciary.[26]

A surveyof judges, prosecutors, bar lawyers and representatives of civic organizations[27]  showed the following most dangerous factors for the independence of judges (in order of importance):

1)  Individual judges handing down dubious rulings;

2)  Insufficient financing of courts and financing being achieved on an individual basis;

3)  Unsatisfactory material and technical provisions for the courts;

4)  Judges being dragged into the political struggle;

5)  Unlawful use by officials of legislative or executive bodies of their power linked with appointing, electing and dismissing judges; bringing them to justice and appointing judges to administrative posts;

6)  The low salaries of judges;

7)  The lack of practical means for holding to answer people who are attempting to unlawfully influence judges.

 

3.  Financing of the judiciary

It is established practice that the State Budget designates funding for the judiciary which is considerably less than what is needed in order to provide for the real needs of the courts, especially those needs directly related to the administering of justice. Despite the fact that the role and functions of the courts, and their workload, have radically increased, the methods for determining annual expenditure on them have not changed in any significant way over the last many years

Furthermore, at the present time, the principle of division of power is being violated in the case of the judiciary.  Courts administer justice and must be independent of any other branch of power or particular individuals, yet at the same time they are dependent on the executive with respect to financial, material, technological and social issues. This is confirmed by the status of the State Judicial Administration which is a central executive body.

State duty which is paid for applications to the court is not directly channelled to meet the needs of the courts. In general, this duty is too low.

Inadequate funding on maintaining court bodies in 2006 amounting to a sum of around 108 million UAH, effectively led to the suspension of the work of some courts and to debts on loads amounting to over 30 million UAH at the beginning of 2007.[28]

In 2007 funding requirements for the judiciary according to budget programmes were only 51 percent met. Despite an overall increase in spending against 2006 of 21 percent (from 1.311.2 million UAH to 1.586.5 million UAH), the problems with proper funding of the work of courts and judges remains unresolved. To a large extent the new system of administrative courts absorbed the increase.

There remains a problem with implementation by the Cabinet of Ministers of the Law on the Budget regarding full financing without any delays of expenditure already improved.

For several months the monthly maintenance payments were not made to retired judges. According to the Supreme Court this was due to the Cabinet of Ministers’ reluctance to allocate money for payments in contravention of the law on the status of judges.[29]

The vast majority of courts are in cramped and unsuitable premises. There are not enough courtrooms, consulting chambers, rooms for remand prisoners brought to the court or defendants, for court managers, for prosecutors and lawyers, witnesses, etc. This means that the premises stipulated by procedural legislation and which are needed in order to properly examine cases are not available. In a lot of cases, judicial examination is postponed, leading to proceedings being dragged out and violation of people’s rights and legitimate interests. The court, designed to administer justice, in fact is forced to break the law.

According to the SJAU out of the approximately 786 premises belonging to the courts, only 55 meet the standards approved by the Council of Judges (160 square metres per judge, allowing for their office, courtroom, staff members, etc).

There have been a good few cases where courts newly-created in connection with judicial and legal reforms have simply not been provided with premises which has halted any further measures linked with the reform process.

To implement the State Programme for providing courts with suitable buildings from 2006-2010, which was approved by Cabinet of Ministers Resolution No. 918 from 4 July 2006, only 30 million UAH was envisaged for 2007, a mere 6% of the amount needed. 11 million UAH was allocated for purchasing housing for judges, although 860 judges are not provided with adequate housing, and 478 do not have it at all.

Almost all courts have at least one outlet for the Internet and use emails in their work. As of 1 January 2008 the general figures for judges of general jurisdiction courts being supplied with computers had increased to 65 percent of those needed, while in economic courts, the figure had risen to 80 percent.  Therefore one of the priority tasks of the SJAU is to equip courts with computer technology, local networks, access to the Internet for local courts and newly-created local and appellate administrative courts.

It is no less important to ensure that the Single State Register of Court Rulings is filled. Each month around 33, 000 texts of court rulings are input into the Register, with the number of rulings at the end of 2007 reaching 1 239 378.[30]

On the other hand, the Accounting Chamber, having audited the use of public funds for organizational needs of courts and judges,   once again pointed to inefficient use of funds, the ill-thought-out nature of State programmes and the failure to fully implement them.[31]  The Accounting Chamber particularly paid attention to the fact that the activities of military courts are hardly justified under the present situation. As a result of amendments to legislation there has been a significant reduction in the workload of military courts, and the cost of examination of cases given general expenditure has become 72 times higher. There has been an increase in the average cost of examining one case in a military court which came to 7.2 thousand UAH which is dozens of times higher than the average cost of such examinations by general courts. Thus, the auditors conclude, that the spending on keeping and financing the system of military courts was not justified by the results of their work.[32]

4.  Access to justice

Free access to justice is a constitutional right and the foundation of just legal proceedings. The principle of free access to justice entails the duty of the courts to not refuse to examine cases within their jurisdiction in order to defend a person’s violated rights, liberties or interests; convenient location of courts and a sufficient number of courts and judges in the country.

As already noted, there is a serious problem with the number of judges: over 800 vacancies remain unfilled and for over 400 judges their first five-year term has ended and they are awaiting indefinite appointment.

Following the creation of administration courts, considerable problems have also arisen regarding the jurisdiction of the courts.  The number of disputes is especially large regarding the division of jurisdiction between economic and administrative courts. There have been many examples where all courts in turn have refused to examine a case claiming that the dispute is not under their jurisdiction.

Another aspect of restricted access to justice is the fact that individuals can not lodge appeals with the court against laws, Presidential Decrees and Resolutions of the Verkhovna Rada in cases where their rights and liberties are limited. The said legal acts can only be declared unconstitutional by the Constitutional Court, and individuals do not have the right to lodge constitutional submissions.

. Court costs which an individual will have to bear should not become an impediment to legal defence of his or her rights. This means that the requirement that justice be accessible can only be observed where there is an efficient system of legal aid, especially to those on low incomes.

One of the important conditions for access to justice is the level to which the public is informed about the organization and work of the courts. There can be no accessibility if the judicial system remains complicated and a person doesn’t know which court has jurisdiction over his or her case.

Information about procedure for approaching the courts is not sufficiently available and at times is difficult to understand. The texts of court rulings are largely inaccessible to people who were not involved in the case and yet whose interests are directly affected. Lower level court rulings are virtually not published. Due to the lack of courtrooms, judges often examine cases in their offices; there are infringements of the principle of open court hearings and the technical equipment for recording the proceedings is not available everywhere.

There is a significant problem for people living in isolated rural areas to gain access to the courts. Results of a study showed that the overwhelming majority of district [raion[33]] centres in Ukraine are not geographical centres of the districts. This leads to unequal opportunities for rural residents to reach the necessary local court. The lack of public transport routes makes access for rural residents to the courts even more problematical or downright impossible. This means that local (district, city-district) courts continue to be inaccessible for a certain part of the rural population due to both the considerable distances involved and / or the lack of transport between a person’s home and the relevant court. In view of this, the question of drawing up and implementing the institution of magistrates is of importance.

 

5.  The right to legal aid

One of the most widespread systemic problems in the human rights sphere is violation of the right to defence and the failure to provide qualified legal aid. At the present time there is no standard government policy for ensuring that individuals receive free legal aid.

According to Article 261 of the Code of Administrative Offences, a person does not have the right at all to meet with his or her defender, while during the subsequent investigation into such a case and its examination by the court the presence of a lawyer is not obligatory. This is with the European Court of Human Rights regarding such procedures in many cases as criminal procedural in their essence and therefore the rights of the individual to a fair trial should fully apply.

Criminal procedure legislation is also flawed. It all begins with the fact that it is the investigator who issues a decision allowing a defence lawyer to take part in the case. One should also note the difficulty for a defender in communicating with a person in custody. On the one hand a person remanded in custody does have the right to see their defender without others being present, without any limitation on the number of such visits or their duration. However on each occasion notification is required from the investigator to the administration where the person is being held. Investigators often make use of this.

Legislation contains separate provisions regulating the provision of free legal aid, yet a system ensuring real access to such assistance has yet to be created.

The procedure for appointing a lawyer (defender) through lawyers’ associations, as envisaged by the Criminal Procedure Code, was introduced under different historical circumstances and does not therefore take modern forms and conditions for the functioning of the bar lawyers’ profession into account, and consequently fails to provide high-quality and timely legal assistance.

The legally stipulated size of the payment to lawyers appointed to provide legal aid in criminal cases amounts to 15 UAH for a full working day. This kind of payment for ones work, together with the complicated procedure for confirming the lawyer’s participation in this category of cases, do not encourage lawyers’ systematic and proactive participation, nor ensure a proper level for the legal aid provided at the State’s expense

Sociological research into access to legal aid in criminal cases carried out in the Kharkiv region in 2007 by the Kharkiv Institute for Social Research showed that only 7.9% of the respondents (prisoners) had had the opportunity to use the services of a lawyer from the moment of detention up till the first interrogation and it turned out that 41.4% of those surveyed had only received such a possibility during the court examination. According to the same study, 41.2% of respondents from among the public, 35.9% of prisoners and 19% of investigators were in varying degrees agreed that free legal aid was not available. It should also be noted that more than half of those surveyed consider that some forms of free legal aid do not exist.[34]

It is also interesting and indicative to look at the results of a content analysis of criminal cases to which bar lawyers were assigned.

Comparison of the real participation of bar lawyers at various stages of the investigation (pre-trial and court) with the possibilities provided to defenders by current legislation[35]

Stage

Ideal type

Practice

1.

Initiating of a criminal investigation (CI)

The lawyer is entitled to be present when a copy of the protocol is handed over regarding the initiating of a CI, to read it and appeal against it as per established procedure

The lawyer is not present when a copy of the protocol is handed over regarding the initiating of a CI and seldom appeals against it in court or to the prosecutor’s office.

2.

Detention, drawing up a detention protocol

The lawyer is entitled to be present from the first moments of detention, when the protocol on detention is being drawn up, and to see his / her client before the first interrogation (taking of an explanation)

The lawyer is not present during the actual detention or the drawing up of a detention protocol and there are real problems with access of a lawyer to the first interrogation (taking of an explanation)

3.

Choice of preventive measure

The lawyer is entitled to be present during the selection of a preventive measure, especially remand in custody, or to guarantee that the interests of his/her client will be considered, as well as to see the material used to justify the remand of the suspect or choice of preventive measure  

The lawyer is not present during the court consideration of choice of preventive measure, especially remand in custody

3.1.

Appeal against preventive measure

The lawyer has the right to appeal against the preventive measure in accordance with established procedure

In studying criminal investigations, not one case was found where the lawyer had appealed against the choice of preventive measure

4.

Carrying out investigative action

The lawyer is entitled to be present during interrogations of the suspect or accused, and during other investigation action carried out with their participation, or at their application or on the application of the defender him or herself, and in the carrying out of other investigative work with the permission of the detective, investigator or prosecutor.  The lawyer also has the right to gather information about facts which could be used as evidence in the case, including demanding and receiving documents or their copies from individuals or legal entities, become familiar at enterprises, institutions, organizations, civic associations with documents, aside from those which are protected by the law as secret; received written opinions from specialists on issues which demand special knowledge; question individuals

Lawyers very rarely take part in investigative work with the exception of cases where this participation is mandatory. However the method of content analysis does not make it possible to state that even in those cases lawyers were really present during this or that investigative measure

5.

Presenting of charges

See carrying out investigative activities.

From this stage on lawyers more and more often take part in the case. However in our opinion this is already too late since the charges have already been formulated and all evidence practically gathered

6.

Drawing up the prosecution conclusion

The lawyer is entitled to be present during the reading of the prosecution conclusion.

The drawing up and reading of the prosecution conclusion  is more and more covered by lawyer “care”

7.

Familiarizing oneself with the case material


The lawyer has the right to make notes, have face-to-face meetings with the accused, explain to the accused the content of the charge, consider with the accused the question of making applications, presenting evidence, asking for somebody’s removal from the case, appealing against the actions and decisions of the investigator and prosecutor

.

The most common stage from which the participation of a lawyer, either according to an agreement, or ex-officio, begins.

8.

Preliminary court examination

The lawyer is entitled to be present during the preliminary examination and to submit an application according to legally established procedure.

At this stage the judge already considers the issue of drawing a defender into the case, and therefore the so-called signed statement appears that the defendant has admitted guilt, that the essence and scale of the charges are understood and that he or she will defend himself or herself alone

9.

Court hearings into the case (court investigation, court debates and the final word of the defendant

The lawyer has the right to put questions during court hearings to the defendants, victims, witnesses, expert, specialist, claimant and respondent, take part in the study of other evidence, present evidence, make applications, call for people to be removed, express their opinion during the court hearing regarding the applications of other participants in the court examination; appeal against the actions and decisions of the person running the detective inquiry, the investigator, prosecutor and court; appear in court debates; read the protocol of the court hearing and submit any comments

At this stage participation of the lawyer boils down at best to agreeing / not agreeing with the conclusions of the state prosecutor and applications like “I would ask the court when determining punishment to take into account the defendant’s person, the combination of circumstances which mitigate his / her guilty, and also the fact that the crime was not serious and committed for the first time”. This in our view is the work of the judge (court)

10.

Appeals against the court verdict

The lawyer has the right according to legally established procedure and time frames to submit appeals

Only 1% of the cases were appealed by lawyers, both those assigned and those according to contracts, which is an extremely low figure. Furthermore, the most motivated appeals are drawn up by people who have not been charged with criminal liability for the first time.. One cannot of course exclude covert outside assistance, however it remains a fact and the court at appeal level takes into account the arguments of a convicted person

11.

Appeal consideration

The lawyer has the right to know about submissions by the prosecutor, appeals, submit objections, take part in court hearings during the appeal examination

Among the cases appealed at all, only lawyers working by contract take part, and then only in 25% of the cases

12.

Cassation appeal

The lawyer has the right according to legally established procedure and time frames to submit cassation appeals in the part concerning the interests of the person convicted

Only in 9 cases out of 600 was a cassation appeal submitted, and not one of these was in a case. There was no work by the lawyers on them at all

 

From 2005 the International Renaissance Foundation in cooperation with the Legal Initiative of the Open Society Institute with the financial support of the “Viktor Pinchuk Fund – Social Initiative”, have been carrying out a joint charitable programme on free legal aid  aimed at creating a state system of high-quality legal aid meeting the needs of society.

On 24 January 2006 an Order issued by the Minister of Justice created a Council for reforming free legal aid.

On 9 June 2006 Presidential Decree №509/2006 approved a Strategy Plan for creating a free legal aid system. Measures were taken at the same time on implementing the Strategy Plan were included in the  Action Plan for fulfilling Ukraine’s duties and commitments arising out of its membership of the Council of Europe, approved by Presidential Decree №39/2006. However due to inconsistent policy of the Ministry of justice, the draft law on legal aid has not been prepared.

In implementation of the President’s Decrees it was decided to create three pilot projects for providing legal aid which envisaged the creation of pilot legal aid offices. The first such office was created in Kharkiv in September 2006, then in February 2007 in Bila Tserkva (Kyiv region), and in November in Khmelnytsky.

These offices provide free legal aid to any person detained in a police station at any time of the day or night.

The model drawn up within the framework of these projects is for fully equipped and staffed in order to provide “secondary legal aid” Public Defence Offices [PDO]. The full-time team of professional bar lawyers works exclusively within the Project. They provide high-quality legal assistance aimed at helping those facing criminal charges and who cannot themselves afford lawyers’ fees. The PDO lawyer begins representing the interests of the detained person (takes on the case) as soon as possible, before the first official interrogation and continues to represent the person throughout all the stages of the pre-trial investigation and court examination, including the appeal.

Each PDO has five bar lawyers, one lawyer and an assistant. Each of the Offices has concluded a formal agreement with the Central Department of the Ministry of Internal Affairs for the relevant region specifying the specific principles of cooperation between the Office and the police. The agreement is to ensure the following additional guarantees of detainees’ rights:

  • access to a lawyer from the pilot project before the detainee is interrogated by a police officer;
  • the possibility of rejecting the services of a lawyer only in the presence of a lawyer;
  • reports to the project’s lawyers of all cases where people have been detained.

The agreement also stipulates procedure for the experiment and for the process of involving the bar lawyer in defence of the detained person.

As was anticipated, the police have been very reluctant to accept these changes and reforms. The level of opposition varies in different cities. In Bila Tserkva the police would seem to have accepted the new rules and be fulfilling the provisions of the agreement, while in Kharkiv they are still unyielding in their opposition to the changes.

The level of cooperation with courts in different cities is different. The judges of Bila Tserkva, following the position of the Chairperson of the court, are actively supporting the project. They strictly observe the provisions of the agreement and demand the same from the police, as well as accepting PDO lawyers as an integral part of the institutional structure of the system of criminal justice. On the other hand, in Kharkiv one has the impression that the courts ignore the PDO as a structure, and work with PDO lawyers as individual lawyers defending the rights of their own clients.

Overall, however, the results of the assessment suggest that the projects can be considered successful. Law enforcement officers’ awareness that lawyers can appeal against a detention without sufficient evidence has led to an on average 3-5 times reduction in the number of detentions in police stations taking part in the projects. Lawyers of the Offices are also successfully working to achieve the use by courts of preventive measures alternative to remand in custody, such as release on bail or personal guarantee, thus also changing practice in the use of preventive measures.  PDO experience demonstrates that where there is an active position from the lawyer, the courts are ever more inclined to not opt for remand in custody. Only in 28% of the criminal cases which PDO lawyers were working on in Bila Tserkva did the courts choose remand in custody as preventive measures, with this figure in Kharkiv being 30%. Overall the quality of representation of people on lower incomes in criminal cases has improved considerably.

We should note the efforts of individual judges aimed at ensuring the rights of detainees in areas where pilot offices providing free legal aid are functioning.  The example can be cited of the separate judgment of the Bila Tserkva City-District Court in the Kyiv region over the Head of the Bila Tserkva City Police of the MIA Central Department for the Kyiv region [the Bila Tserkva CP] with regard to identified infringements of current legislation. The judgment particularly stresses that a police office may not question a person detained or put questions to him or her before a public defender from the office functioning on the territory of the police department has been called.

SEPARATE JUDGMENT

On 15 February 2008 the Bila Tserkva City-District Court in the Kyiv region

Under presiding judge  V.M. Savin

and secretary   S.I. Hulchenko

with the participation of  Prosecutor R.L. Nechyporenko

  lawyer V.E. Kikkas

representative of the Juvenile Affairs Service  P. Stepanenko

having in an open court hearing in the city of Bila Tserkva examined the case involving charges against K***, 1991 date of birth, Ukrainian citizen, incomplete secondary education, school student *** in Bila Tserkva, unmarried, originally from and residing in Bila Tserkva, St. +++, with no previous conviction, of committing a crime under Article 15 § 2 and Article 186 § 1 of the Criminal Code

DECIDED

In a court ruling from 15 February 2008 K*** was released from criminal liability under Article 15 § 2 and Article 186 § 1 of the Criminal Code with the application in his cases of compulsory measures of an educational nature with the proceedings against him in the criminal case being terminated.

In the court hearing it was established that K*** had been detained by CP-2 of the Bila Tserkva Police on 18.12.2007 directly after an attempt to commit a crime set down in Article 186 § 1 of the Criminal Code.

After he was detained and brought to the CP-2 building, the Head of the Criminal Police Juvenile Department of the Bila Tserkva PD2, Police Major *** being fully aware that K*** was underage, questioned him and took an explanation, explaining only:

the requirements of Article 63 of the Constitution, not however explaining to either K*** or his mother K*** whom he summoned, after talking with her son, by telephone about the possibility of receiving free legal aid from highly-qualified lawyers.

15 February 2007 saw the official opening in Bila Tserkva  of a Public Defence Office, created on the base of the Bila Tserkva civic organization “Public Committee for the Promotion of the Constitutional Right to Legal Aid, in implementation of the Presidential Decree “On a strategy concept for developing a system of free legal aid” from 09.06.2006 № 509/2006.

On 15 February 2007 Agreement No. 1 was concluded on carrying out an experience in organizational forms of providing free legal aid between this civic organization, the Central Department of the Ministry of Internal Affairs in the Kyiv region, and the Bila Tserkva Police on cooperation in providing detained persons with free legal aid. As a supplement to this agreement, an instruction was passed for staff of the Bila Tserkva Police.. On the basis of those documents, an MIA officer shall not question a detained person and will not ask any other questions, and must phone the Public Defence Office to call a public defender. The detained person must definitely be informed of such a possibility.

Head of the Criminal Police Juvenile Department of the Bila Tserkva CP-2, *** did not fulfil this duty.

Nor did the investigator *** who took over the case on 21.12.2007 inform K*** and his mother K*** about this possibility to receive free legal aid.

In the court hearing it was established that К*** is a single mother with four children and a difficult financial position. Despite this, Investigator *** of her own initiative presented  the mother of the defendant with lawyer B*** with whom K*** was forced to conclude a fee-paying agreement for providing legal assistance to her son which she informed the court about during the court hearing.

Furthermore, lawyer B*** did not appear at the court hearing on 14.02.2008, and did not provide a lawyer to replace him.

The court of its own initiative informed the Public Defence Office about the need to provide free legal aid and was forced to adjourn examination of the case.

During the examination of the case lawyer V.E. Kikkas provided free legal aid to the defendant and his mother.

Responsible for a criminal case involving a crime by people underage, the investigator into the case *** did not carry out her duty to inform the Juvenile Affairs Service of the Bila Tserkva City Executive Committee about the crime.

It was also established during the court hearing that the pre-trial investigation had been conducted with infringements of Chapter 36 of the Criminal Procedure Code (СPС).

Article 433 of the CPC states that in conducting pre-trial and court examinations into cases involving crimes by juveniles, aside from circumstances set out in Article 64 of the CPC, it is also necessary to ascertain the state of health and of general development of the minor, their living conditions and upbringing; circumstances which adversely influence the upbringing of the minor, through questioning their parents, and other people who can provide such information, as well as demanding the necessary documents and carrying out other investigation activities in this area. The above-mentioned activities are mandatory for the investigator into the case.

Investigator *** did not properly fulfil the requirements of current legislation on these issues and confined herself to questioning the defendant’s mother and teacher of foreign literature***/  At the same time it can be seen from the case material that the defendant is living with his adult brother and elder sister. The lad’s neighbours were not questioned, nor his form teacher or the school’s social pedagogue with regard to his behaviour and upbringing from elementary grades and his overall development.

The investigator also failed to find out about the boy’s state of health, restricting herself merely to questioning the Head Doctor in the Bila Tserkva Psycho-as to whether K*** was on their records.

The court also drew attention to the fact that investigator ***did not fulfil the requirements of the agreement made on 01.02.2006 between the Supreme Court, the Prosecutor General, the Ministry of Internal Affairs, the State Department for the Execution of Crimes and the Swiss Agency on Development and Cooperation regarding implementation of the project “Support for the reform of the system of pre-trial detention”.  This was part of implementation of the provisions of the Presidential Decree No. 39/2006 from 20 January 2006 “On an action plan for implementing Ukraine’s duties and commitments following from its membership of the Council of Europe.”

On 02.03.2006 the Deputy Minister of the MIA P.V. Kolyada in his letter addressed to the Head of the Central Department of the MIA for the Kyiv region V.O. Yakovenko pointed out that this agreement was binding upon employees of the investigation unit of the Central Department of the MIA for the Kyiv region and of the investigation subdivisions of the Bila Tserkva city and district police stations.

One of the important elements of this agreement is the conducting of a pre-trial study of the person who committed the crime by the inspectors of the Bila Tserkva Police Penal Inspectorate which enables the court to better understand the offender and choose the most appropriate form of punishment. This approach also makes it possible for inspectors of the Bila Tserkva Police Penal Inspectorate to provide accompaniment for the offender during the pre-trial investigation and court proceedings in order to identify and eliminate the reasons for the crime, reform such people and prevent them from committing new crimes.

Investigator *** did not fulfil her duty to inform the Bila Tserkva Police Penal Inspectorate about the criminal case with regard to K*** which she was dealing with.

Bearing in mind the above-listed violations of the rights of defendant K*** and other infringements of the law during the pre-trial investigation, the court considers it necessary to inform the Head of the Bila Tserkva Police Department of the MIA Central Department for the Kyiv region in order that the appropriate measures be taken to remove such infringements in future.

Governed by Article 23-2 of the CPC, the court:

HAS RESOLVED

to inform the Head of the Bila Tserkva Police Department of the MIA Central Department for the Kyiv region  of the violations of current legislation established in order that appropriate measures be taken.

That the Bila Tserkva City-District Court be informed of the measures taken within the established time period.

  Judge (signature)

It would be expedient to extend such practice among judges with this contributing to the real safeguarding of detainees’ rights.

 

6.  Reasonable time limits

Due to shortcomings in judicial procedure, as well as the not always warranted extended jurisdiction of the courts, for example, in examining administrative offences, judges are unable to give timely and high-quality consideration of cases.

Courts quite often return claims lodged without grounds, while judges procrastinate with investigating cases and hand down rulings outside what can be called a reasonable time frame.

No clear mechanism has been drawn up for establishing the court’s liability for procrastination with examining cases, as well as judges’ liability for not carrying out their duties in a qualified manner.

According to SJAU figures, there has been a certain speeding up in the consideration of criminal cases against a clear increase in the time taking for examination of administrative and civil cases. It should be added that Ukrainian legislation establishes time limits only for scheduling the review of particular cases and does not take into account the whole amount of time for considering the case, including other levels. State statistics therefore fail to show the main problem seen in reasonable time limits being exceeded because of the case being sent from one court to another. It is also important that these figures show an increase in unconsidered cases at the end of the year which demonstrates a negative trend over recent years when thousands of cases from previous years accumulate in the courts.

 

Efficiency of consideration of cases by local general jurisdiction courts[36]

№ з/п

Type of figures

2006

2007

Rate of change in %

Criminal cases

1

The number of cases where proceedings have been completed, in total

188788

186244

-1, 35

2

Cases scheduled for examination with infringements of the time limits set down in Article 241 of the CPC

2032

1425

-29, 87

Percentage of the number of cases where proceedings have been completed  

1, 08

0, 77

Х

3

Cases scheduled for examination with infringements of the time limits set down in Article 256 of the CPC

4976

3867

-22, 29

Percentage of the number of cases where proceedings have been completed  

2, 64

2, 08

Х

4

The number of unconsidered cases at the end of the reporting period

41147

40348

-1, 94

Percentage of the number of cases where proceedings were underway

17, 90

17, 81

Х

5

Including cases where consideration is over 6 months late (not counting cases where proceedings were terminated)

5451

5363

-1, 61

Percentage of the number of cases not considered cases not counting cases where proceedings were terminated

18, 83

18, 60

Х

Administrative cases

6

The number of cases where proceedings have been completed, in total

106625

126035

18, 20

7

Including with infringements of the terms for examination set down by the Code of Administrative Justice

13248

14439

8, 99

Percentage of the number of cases where proceedings have been completed  

12, 42

11, 46

Х

8

The number of unconsidered cases at the end of the reporting period

18915

19970

5, 58

Percentage of the number of cases where proceedings were underway

15, 07

13, 68

Х

9

The remainder of unconsidered cases (not including cases where proceedings have been terminated)

17462

18557

6, 27

Percentage of the number of cases where proceedings were underway

13, 91

12, 71

Х

10

Cases over 2 months late (not including cases where proceedings have been terminated)

5250

5299

0, 93

Percentage of the number of cases not considered not counting cases where proceedings were terminated

30, 07

28, 56

Х

Civil cases based on law suits, separate proceedings

11

The number of cases where proceedings have been completed, in total

1143519

1240758

8, 50

12

Proceedings in cases concluded over the time limits established by the Civil Procedure Code 

122040

123484

1, 18

Percentage of the number of cases where proceedings have been completed  

10, 67

9, 95

Х

13

The number of unconsidered cases at the end of the reporting period

197518

207892

5, 25

Percentage of the number of cases where proceedings were underway

14, 73

14, 35

X

14

Percentage of the number of cases excluding cases where proceedings were terminated)

174245

183805

5, 49

Percentage of the number of cases where proceedings were underway

12, 99

12, 69

Х

15

Cases over 3 months late (not including cases where proceedings have been terminated)

43458

40846

-6, 01

Percentage of the number of cases not considered, excluding cases where proceedings were terminated

24, 94

22, 22

Х

 

Unfortunately there is no information about unconsidered cases by the Supreme Court. Over the last few years more than 40 thousand cases have accumulated in this court. Last year parliament gave permission on a once-off basis for these cases to be temporarily divided between appeal courts for cassation review. Clearly we will not speak about the quality of such reviews however it was possible to thus release the load on the Supreme Court.  Nonetheless the reasons for such a build up of cases were not removed since the court reform did not take place. This year should therefore have shown a rise in unconsidered cases, however there is no information at all about the consideration of cases in the Supreme Court.

There is an irrational method for allocating judges to courts which leads to some having an excessive workload, while others don’t have enough to do.

According to figures from the State Judicial Administration, through 2006-2007 the load on one judge of a local court rose on average by 15-20% in almost all courts with the exception of the Chernivtsi, Volyn, Poltava and Rivne regions. There was an almost 30% increase in the workloads in the Donetsk and Ternopil regions. On average a local court judge receives 155 cases a year. However this figure is considerably higher in many local courts: in the Khmelnytsky City-District Court the figure is 312; in the Sykhivsky District Court in Lviv – 319; and in the Bilyayivsky District Court in the Odessa region as many as 390 cases.

At the same time the workload per judge in a court of appeal is on average 3-4 times lower than that of judges in local courts, although, except in the Zhytomyr and Ternopil regions, the figure has increased by a third over the last two years. ]

Military courts were virtually without work since their jurisdiction has been significantly decreased over the last few years and the number of judges has not been reduced, this leading to clear disproportion.

Ukrainian legislation basically fails to provide for the right of parties to legal proceedings to appeal against the excessive duration of proceedings.  Nor does it guarantee the right to compensation of damages incurred as a result of unwarranted delay in hearing a case in court.

Infringements of reasonable time spans are one of the most common reasons for Ukraine losing cases in the European Court of Human Rights.

In July 2007 the European Court found that there had been a violation of the right to a fair trial due to the excessive procrastination in the courts over the case of Oleksandr Dovhikh v. Ukraine. Delay in hearing the case in the Mykolaiv Court cost the State 1, 816 thousand Euros.

Since April 2001 up to the present day[37] hearings have been continuing into the criminal case against O.H. Onyshchenko from Dnipropetrovsk who has been in custody all that time. The case has been sent back several times for further investigation: in April 2004, August 2005 and January 2008 the case was sent by the Supreme Court for repeat examination, and all verdicts were revoked. The case is presently being examined by a local court and the accused has made an application to the European Court of Human Rights.[38]

7.  Enforcement of court rulings

The present system for enforcing court rulings is not efficient and there is effectively no system of control over the work of the State Bailiffs’ Service. The European Court of Human Rights in judgments passed down against Ukraine most often finds that there has been a violation of the right to a fair trial especially due to the non-enforcement of rulings from domestic courts within a reasonable period of time. (over 75 cases out of 109 in 2007, i.e. more than 75%).

Without enforcement of court rulings the right to a fair trial loses any meaning since it remains formal and for show, and does not ensure the protection and restoration of violated rights and freedoms.

According to data from the Ministry of Justice, as of 1 January 2008 the State Bailiffs’ Service was due to enforce 7 254 061 writs of execution worth in total 51 792 862 619 UAH. In 2007 Bailiffs completed 4, 348, 032 documents worth 17, 309, 884, 431UAH, of which 2, 358, 331 executions writs were actually enforced with 4, 157 577 451 UAH retrieved.  According to statistical estimates, only about 32% of execution writs in the country are enforced. Approximately 30% of other execution proceedings are terminated for various reasons.[39]

According to the SJAU, during 2007 5, 901 complaints reached the courts (one should also add 966 cases which arrived in 2006 but were not considered) against the actions or inaction of the State Bailiff or other officials of the State Bailiffs’ Service. Of these 1, 968 complaints were not examined. Of the 3, 868 examined, 1692 were allowed. 555 were examined with infringements of the time limits set down in the Civil Procedure Code, and 1, 013 remained without examination. These figures demonstrate to an equal degree the ineffectiveness of court control over implementation of court rulings.

On 8 June 2007 the liquidation commission of the Department of the State Bailiffs’ Service ceased its work due to the completion of liquidation of State Bailiffs’ Services. all bailiffs’ services became structural subdivisions of the relevant Departments of Justice. However this did not significantly increase the number of enforcement rulings.

The present Laws “On the State Bailiffs’ Service” and “On Bailiffs’ proceedings” have to a large extent exhausted their potential which was merely as a transitional stage in moving towards the creation of an effective European model for compulsory enforcement of court rulings. The work of seven thousand bailiffs over almost ten years has not been able to guarantee the enforcement of justice, and with the present legislative approach it would be futile to expect any other results.

Attention has been given to this problem on many occasions in the higher echelons of power. In March 2008, for example, the President issued a Decree “On supplementary measures to increase effectiveness of enforcement of court rulings”.[40]  The situation however with to this day remains appalling.

At the legislative level, there is a paradoxical situation whereby the State to a large extent defends debtors rather than those seeking to extract the debt and effectively provides legal opportunities for avoiding implementation of court rulings. The State needs to prioritize the interests of the aggrieved party – the person seeking what the court has recognized their right to. It is this which should be at the basis of modern doctrine on ensuring enforcement of rulings. Yet in current legislation the debtor is offered ample scope for evading enforcement and bearing no liability for this.  The paradox is that effectively legislation makes enforcement of a court ruling impossible without the consent of the debtor to each procedural act which is essentially illogical.

One of the directions for improving enforcement of rulings would be the introduction of non-governmental forms of enforcement which would make it possible to reduce corruption during the organization of compulsory enforcement and prevent administrative influence on the process of enforcement. This would make it possible to significantly shorten time periods for enforcement and effectively increase the motivation for enforcement through contractual relations and the introduction of real competition in the enforcement process.[41]

There are also problems in the fact that gaps in legislation create the conditions for escaping liability for non-enforcement of rulings. The law obliges the State Bailiff in cases where there are indicators of a crime in the actions of a person who deliberately obstructs proceedings to send the relevant law enforcement body an application to bring criminal charges against the person. In 2007 over 20 thousand applications from State Bailiffs were sent to prosecutor’s offices or to the police to initiate such criminal investigations. Yet only slightly more than 6 thousand criminal investigations were in fact initiated.

When considering applications from State Bailiffs the prosecutor’s offices and bodies of the Ministry of Internal Affairs do not always adhere to the requirements of the Criminal Procedure Code, for example, as regards time periods for consideration, and there are numerous cases of unwarranted refusals to implement criminal investigations, of copies of resolutions refusing to launch criminal proceedings being sent late or not at all to the State Bailiffs’ Service. Most often in considering such applications, law enforcement agencies refuse to launch criminal investigations for the following reasons: the debtor not being in work and not receiving income; not finding the debtor at their main place of residence; as well as due to partial repayment of alimony or maintenance arrears. Drawn-out review of applications or unwarranted refusal to launch criminal investigations adversely affects timely real enforcement by state bailiffs of court rulings and leads to a sense of impunity in enforcement proceedings.[42]

The prosecutor’s office provides these figures regarding their activities in ensuring enforcement of court rulings

Year

Documents of prosecutor’s response considered with the use of measures to eliminate the violations

Disciplinary proceedings brought against functionaries

 

Criminal investigations initiated

 

Unlawfully detained individuals released at the initiative of the prosecutor’s office

2006

12069

9191

287

372

2007

13603

10011

347

399

Despite certain efforts by the authorities, the fundamental problem is not being resolved and the number of court rulings not enforced increases every year.

8.  Presumption of innocence

In the present criminal procedure system the principle that a person is presumed innocent unless proven otherwise is often infringed. This is caused both by flawed legislation, and by the lack of respect for this principle demonstrated by public officials, including those who hold the highest posts in the country (the President, the Minister of Internal Affairs, the Prosecutor General and others.)

As noted, considerable problems are presented by the lack of a proper level of legal culture among high level public officials. Virtually every press conference given by top officials of the MIA or the Prosecutor General’s Office is accompanied by information about a crime uncovered or a criminal identified long before any verdict has been handed down by the courts on these criminal investigations.

Nor does legislation guarantee the presumption of innocence in cases involving administrative offences

The right to not testify against yourself is a part of the presumption of innocence, however cases remain common where a person is first interrogated as a witness, and then the testimony is used against him or her when charges are laid.

The following can also be considered infringements of the presumption of innocence in legislation:

1)  the practice by the court of returning criminal cases for further investigation;

2)  the possibility of launching a criminal investigation against a specific person, and not over a specific crime..

 

The number of criminal cases returned by first instance courts[43]

№ з/п

Indicator

2006

2007

Rate of change

 

%

1

Proceedings completed into cases (not including cases which were not initiated following a complaint from the victim)

189158

185773

-3385

-1, 79

2

Cases returned by first instance courts for further investigation (Articles 246, 281 of the CPC) (not including cases which were not initiated following a complaint from the victim)

7581

6858

-723

-9, 54

Percentage of the number of completed proceedings into criminal cases of public prosecution

4, 01

3, 69

Х

Х

3

Cases returned to prosecutor’s offices in accordance with Article 249 of the CPC

2049

1444

-605

-29, 53

Percentage of the number of completed proceedings into criminal cases of public prosecution

1, 08

0, 78

Х

Х

4

Criminal cases withdrawn by the prosecutor’s office in accordance with Article 232 of the CPC

3917

2873

-1044

-26, 65

Percentage of the number of completed proceedings into criminal cases of public prosecution

2, 07

1, 55

Х

Х

5

Total number of criminal cases returned by the courts and withdrawn by prosecutor’s offices (not including cases which were not initiated following a complaint from the victim)

13547

11175

-2372

-17, 51

Percentage of the number of completed proceedings into criminal cases of public prosecution

7, 16

6, 02

Х

Х

6

Number of people with respect of whom judgments or resolutions of local courts on returning cases for further (pre-trial) investigation were revoked at appeal level.

2131

2029

-102

-4, 79

7

Separate judgments issued regarding infringements of legislation in conducting detective inquiry or pre-trial investigations

2474

2284

-190

-7, 68

An additional infringement of the presumption of innocence is the application of amnesties with respect to people whose criminal examination is still in process.

 

9.  Recommendations

1)  Continue implementing the Strategy Plan for improving the justice system to ensure fair trial in Ukraine in accordance with European standards passed by Presidential Decree and approved by international experts of the Council of Europe Venice Commission). In particular, within a year pass the Laws on the Judiciary and on the Status of Judges submitted by the President to the Verkhovna Rada in December 2006 and passed by parliament in their first reading.

2)  Continue implementation of the Strategy Plan for reforming the system of free legal aid. On its basis the Ministry of Justice should draw up and submit to parliament via the Cabinet of Ministers a draft law on legal aid..

3)  Begin implementation of the Strategy for reforming criminal justice, passed by the President, in particular, by reforming criminal procedure law and passing a new Criminal Procedure Code[44].

4)  The Cabinet of Ministers must ensure funding of the courts at the level of the justified requests of the SJAU and Supreme Court.

5)  High-ranking public officials should avoid direct accusations against any individuals of having committed different crimes since such accusation place in jeopardy the person’s right to the presumption of innocence. Such accusations may only be made after a court verdict has come into legal force

6)  The President, Cabinet of Ministers and Parliament should stop the practice of awarding honours to serving judges, as well as including serving judges on various executive bodies

7)  Judges of the Supreme Court and other courts should withdraw from all consultative and advisory executive bodies.

8)  The President should stop the practice of revoking his decrees appointing judges to posts instead of using the procedure set down in legislation for dismissing judges.

9)  The authorities should as a matter of urgency resolve the problem of incomplete staffing of many courts, and also ensure the full functioning of the system of administrative courts.

10)  Legislative norms need to be drawn up and passed for ensuring reasonable time spans for judicial examination of cases. Compensation should also be envisaged for violations of their rights through the failure to observe reasonable time spans.

11)  Implement the National Action Plan on ensuring proper enforcement of court rulings approved by Presidential Decree on 27 June 2007 N587/2006.

12)  Increase the efficiency of the State Bailiffs’ Service by strengthening legal and social protection of State bailiffs, as well as other guarantees of their independence, and by improving the legislative norms which directly regulate the enforcement of court rulings, #

13)  The place of the State Bailiffs’ Service needs to be clearly defined within the system of State bodies. Individuals applying for jobs connected with enforcing court rulings much take a qualifying test and have a probationary period. It would be expedient to gradually remove the monopoly of State activity in enforcing court rulings and envisage the possibility of transferring it to non-State enforcers or enforcement agencies under the efficient control of the Ministry of Justice..

14)  Raise the liability of debtors for non-enforcement of court rulings or for deliberately creating conditions which make enforcement impossible, as well as introducing incentives for voluntary enforcement of a court ruling.



[1] Prepared by Volodymyr Yavorsky, UHHRU Executive Director. Since there have been no significant changes, the conclusions reached in the Report Human Rights in Ukraine – 2006 remain entirely relevant

[2] Presidential Decree from 10 May 2006 №361/2006.

[3] See, for example, “Head of the Supreme Court Vasyl Onopenko is concerned that judicial reform in Ukraine could contradict its main objective, improving the justice system and making it meet people’s needs, and is asking the President to withdraw the draft Law “On amendments to the Law “On the judicial system of Ukraine” // Information on the Verkhovna Rada website from 22 March 2007

http://www.scourt.gov.ua/clients/vs.nsf/0/F2D409AA21601D74C32572A6004C76A3; See also the Appeal from the Council of Judges of Ukraine to the President from 9 February 2007.

[4]  Presidential Decree № 914/2007 from 24 September 2007 “On a new makeup of the National Commission for the Strengthening of Democracy and the Rule of Law” http://www.president.gov.ua/documents/6758.html.

[5]  Item 3, Section 1 of the Strategy Concept for improving the justice system to ensure fair trial in Ukraine in accordance with European standards // Adopted by Presidential Decree from 10 May 2006 №361/2006.

[6] A meeting has been held of the Board of the State Judicial Administration of Ukraine // The State Judicial Administration http://www.court.gov.ua/news/page.php?court_id=0&archive=1&&year=2008&month=2&news_id=2068.

[7] According to official figures from the State Judicial Administration posted on their website: http://www.court.gov.ua.

[8]  On 25 April 2007 the Head of the Supreme Court Vasyl Onopenko turned to the President Viktor Yushchenko asking to be removed from the National Security and Defence Council of Ukraine // News from the website of the Supreme Court from 25 April http://www.scourt.gov.ua

[9] Presidential Decree № 372/2007 from 3 May 2007 “On amendments to Presidential Decree from 11 September 2006 N749», http://www.rainbow.gov.ua/documents/119.html.

[10] The courts in defence of the economic interests of the State // News from the website of the Supreme Court from 13 February 2008, http://www.scourt.gov.ua/clients/vs.nsf/0/23CF46DE84EB9E5EC22573EE0033C05C.

[11] Judges forced to write “denunciations” for the Cabinet of Ministers // UHHRU website http://helsinki.org.ua.index.php?id=1179476924.

[12]  Statement from the Board of the All-Ukrainian Independent Judges’ Association on infringements of the principles of judges’ independence in Ukraine

[13] Acting head of the Dnipropetrovsk Regional State Administration Viktor Bondar is planning to use his power to put pressure on judges // UHHRU website, http://helsinki.org.ua.index.php?id=1189699851.

[14] A meeting has been held of the Board of the State Judicial Administration of Ukraine // The State Judicial Administration, http://www.court.gov.ua/news/page.php?court_id=0&archive=1&&year=2008&month=2&news_id=2068.

[15] Head of the Supreme Court speaks of a real threat for the justice system and asks parliament to remove it // News from the website of the Supreme Court from 14 March 2008 http://www.scourt.gov.ua/clients/vs.nsf/0/9C7FFFA1B9A20445C225740C00370F33.

[16] The Supreme Court has supported an application to parliament for permission to arrest a judge of the Prymorsky District Court in Odessa. // News from the website of the Supreme Court from 30 January 2008 http://www.scourt.gov.ua

[17] Information “On the level of lawfulness in the country in 2007 (in accordance with Article 2 of the Law “On the prosecutor’s office”) // The Prosecutor General of Ukraine. Official website 10.03.2008, http://www.gp.gov.ua/ua/vlada.html?_m=publications&_t=rec&id=12985.

[18]Verkhovna Rada gets even with judge who went against Moroz  // http://www.helsinki.org.ua/en/index.php?id=1175856640 .

[19] Chairperson of one of the courts in the Donetsk region charged with bribe-taking //  http://helsinki.org.ua.index.php?id=1187784743.

[20] Chairperson of a local court faces criminal charges // Official website of the Prosecutor General’s Office http://www.gpu.gov.ua/ua/news.html?_m=publications&_t=rec&id=10985&fp=131.

[21] Odessa Regional Prosecutor’s Office had initiated a criminal investigation against the chairperson of the Baltsky District Court // Official website of the Prosecutor General’s Office, http://www.gpu.gov.ua/ua/news.html?_m=publications&_t=rec&id=11705&fp=91.

[22] Transcarpathian Regional Prosecutor’s Office has initiated a criminal investigation against a district court judge for allegedly issuing a knowingly wrongful sentence //, http://helsinki.org.ua.index.php?id=1200670681.

[23] Zhytomyr judge may pay for issuing an unlawful verdict //  http://helsinki.org.ua.index.php?id=1201084773.

[24] Information “On the level of lawfulness in the country in 2007 (in accordance with Article 2 of the Law “On the prosecutor’s office”) // The Prosecutor General of Ukraine. Official website 10.03.2008http://www.gp.gov.ua/ua/vlada.html?_m=publications&_t=rec&id=12985.

[25]  Generalized information from the qualifying commissions of general court judges on disciplinary proceedings against judges // Information Bulletin of the Higher Qualifying Commission of Judges of Ukraine. Unofficial Theoretical and Practical Publication, № 2 (3), 2007, pp. 2-3.

[26] See the press release of the Supreme Court Press Service of 6 December 2007 //  News from the website of the Supreme Court  from 6 December 2007, http://www.scourt.gov.ua

[27] Monitoring of judges’ independence in Ukraine // General Editor A. Alexeeva, K. 2007. The study was carried out by the Centre for Judges’ Studies and the All-Ukrainian Independent Judges’ Association in 2007. 1, 024 judges were surveyed, together with 356 prosecutors; 311 bar lawyers; and 186 representatives of civic organizations from 8 regions of Ukraine: the Luhansk, Cherkasy, Sumy, Lviv, Ivano-Frankivsk, and Zaporizhya regions, the Crimea and Kyiv). Available at www.judges.org.ua.

[28] Decision VIII of the extraordinary congress of judges of Ukraine // On the state of financial, material and technical provisions for the work of general jurisdiction courts” from 7 December 2007 //  News from the website of the Supreme Court  from 20 December 2007 http://www.scourt.gov.ua

[29]  Appeal from retired Supreme Court judges to the First Deputy Prime Minister and Minister of Finance, M.Y. Azarov //  News from the website of the Supreme Court  from 3 August 2007  http://www.scourt.gov.ua

[30] A meeting has been held of the Board of the State Judicial Administration of Ukraine // The State Judicial Administration, http://www.court.gov.ua/news/page.php.

[31] The system to provide for the work of the courts needs improvement // News from the Press Service of the Accounting Chamber from 21 August 2007

http://www.ac-rada.gov.ua/achamber/control/uk/publish/article/main?art_id=932903&cat_id=411.

[32] The work of the military courts needs improvement // News from the Press Service of the Accounting Chamber from 6 November 2007 http://www.ac-rada.gov.ua/achamber/control/uk/publish/article/main?art_id=838477&cat_id=411.

[33]  To avoid an abundance of unfamiliar terms, we do not use the Ukrainian terms in this case, but translate oblast as region (other sources sometimes use the word province) and raion as district.  There are 24 oblasts in Ukraine, as well as the Autonomous Republic of the Crimea and two cities with special status – Kyiv and Sevastopol. A raion is part of an oblast.  Where there is any likelihood of confusion, the Ukrainian word is given in brackets (translator),

[34] Monitoring of the system of free legal aid in the Kharkiv region: results of a sociological study. D. Kobzin, Y. Belousov, A. Chernousov, O. Serdyuk, A. Bushchenko, Kharkiv Institute for Social Research – Kyiv, 2007, p. 32. Survey among the public and prisoners in the Kharkiv region. The fieldwork among members of the public was carried out in May – June 2007, and the survey of prisoners – in August 2007.  The error margin does not exceed 3.2%. The research was carried out with the support of the International Renaissance Foundation.

[35] Ibid, pp. 87-90. The table is made up from the results of a content analysis of criminal cases conducted from July to October 2007 in 3 district courts in Kharkiv and in the Kharkiv Regional Court of Appeal.  605 criminal cases were analyzed, being chosen at random for the years 2002-2007 inclusive, and different categories. The number of cases considered during one year in each of the selected courts ranged from 980-1300 with a tendency towards increase in recent years. On average in each district court 184 cases were studied, and 50 in the Kharkiv Regional Court of Appeal.

[36] Statistics of the State Judicial Administration for 2007, available on the official website  http://www.court.gov.ua.

[37] As of May 2008.

[38]  The case is supported by the UHHRU Strategic Litigations Fund.

[39] See, for example, the overview of main reasons for non-enforcement of court rulings on defending property rights in the section on Property rights where the grounds are given for terminating enforcement proceedings where the debtor is one of several forms of state enterprise.

[40] V. Yushchenko has issued a decree on increasing the efficiency of implementation of court rulings // Yurydychna praktyka http://yurpractika.com/news.php?id=0013764

[41] M. Onishchuk: The State Bailiffs’ Service on the way to reform and effectiveness // Dzerkalo tyzhnya [The Weekly Mirror] № 9 (688) 8 — 14 March 2008 http://www.dt.ua/1000/1050/62281/

[42] Ibid

[43] Figures from the State Judicial Administration for 2007 available on the official website http://www.court.gov.ua. Cases being examined in appellate and local general jurisdiction courts and returned for further investigation or withdrawn by the prosecutor’s office (not including cases which were not initiated following a complaint from the victim. The data does not show the work of the Supreme Court.

[44]  It should be noted that what is involved here is not the draft Criminal Procedure Code which has been under review in parliament for years, since it does not establish internationally accepted procedure for observing people’s rights and liberties during the criminal process.  This is a draft Code being drawn up by a working group of the National Commission for the Strengthening of Democracy and the Rule of Law.

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