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Human rights in Ukraine – 2008. 4. THE RIGHT TO A FAIR TRIAL

   

  [1]

1. Overview

The right to a fair trial is not fully secured either in the Ukrainian Constitution or in legislation, with only individual aspects protected by law.

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 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Since according to parliamentary procedure, draft laws on the agenda cannot be withdrawn, they were considered and passed by parliament in their first reading.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.[3] 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. This did not, however, lead to a review of the Strategy Concept for reform, although attempts to achieve such a review were made.

The draft laws on judicial reform were prepared by the parliamentary Committee on justice issues as a combined draft law «On the Judicial System and the Status of Judges». This was approved by the Committee on 18 June 2008 for its second reading in parliament. Overall, with a few exceptions, the draft law is in line with the previously approved Strategy Concept and international human rights standards.

Despite this, many months have passed and parliament has yet to pass this draft law. One of the reasons is opposition from the Supreme Court and the BYuT [Bloc of Yulia Tymoshenko] faction in parliament. The draft laws envisage reform of the judicial system, a reduction in the number of judges of the Supreme Court from 95 to 20 and the creation of a High Criminal and High Civil Court. This would logically result in a judicial system with four specialized bands of courts headed by a high court. Against this, the Supreme Court began to speak out in favour of separate administrative courts with the future aim of abolishing the High Administrative and High Economic Courts, and creating a three-tier single system of courts. It is for this reason that during the last year there has been serious criticism by the BYuT faction of the administrative courts.[4] This criticism is often not well-founded or concerns problems which are in fact even greater in the system of ordinary courts. The reform, in addition, changes the procedure for forming the Council of Judges and restricts the powers of heads of the courts which cannot please current Supreme Court judges who at present totally control these processes.

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 from 1960, despite some updating, does not meet European standards with regard to human rights protection. The National Commission for the Strengthening of Democracy and the Rule of Law prepared a new draft Criminal Procedure Code , approved it at its meeting and in autumn 2008 sent it to the President so that he would table it in parliament for the development of the Strategy Concept for Criminal Justice which had been adopted via a Presidential Decree from 8 April 2008.[5] At the end of spring 2009 this draft law had still not been tabled in parliament.

Cases involving administrative offences are generally examined with infringements of a number of standards of the right to a fair trial, through numerous restrictions on the right to defence, etc,

As of January 2009 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. According to the staffing schedule there were around 8, 829 judges working in these courts although with the number of vacancies there are in fact several hundred less.

During 2008, local and appellate courts examined approximately 9, 884, 954 cases and files, this being around 14.5% more than in 2006 and over 60% more than in 2005. There was an increase in cases in administrative courts (of more than 50%) and in civil cases (of around 13%), while the number of criminal cases fell.[6]

 

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. There is a separate problem with the existence of military courts which do not meet the criteria for independent court proceedings.

During the Fourth Regular Congress of Ukrainian Judges on 13 November 2008, the Head of the Ukrainian Council of Judges Petro Pylypchuk in his address stated:

«Events of the last months and years demonstrate the lack of acceptance by many of those who hold political power in Ukraine of the fact that independence and inviolability of judges in carrying out proceedings are fundamental principles for the functioning of the judiciary in democratic countries. <...> this lack of acceptance is evidenced in the disregard for the legal principles of the work of the courts, in the passing of judgments and in actions which infringe fundamental principles of the functioning of the judiciary and jeopardize citizens’ rights and freedoms. <...> In general terms I am obliged to say that those methods, those means and tools used by institutions of power and political structures when interfering in the work of the courts constitute::

– deliberate undermining of the authority of the judiciary, systematic statements from high-ranking officials about unprofessional judges, their low moral calibre, rampant corruption in the courts, irresponsibility, not being under control, clan corporate interests, public ridicule of judges, insulting remarks about them as a means of blackmailing judges of higher level courts who are to examine this or that court case;

– attempts to pass laws which «revise» the status of judges; establish strict control over their activities; abolish indefinite terms; restriction of the financial provisions for judges on retirement; the restriction of the powers of bodies of judges’ self-government; constant attempts to restrict or get rid of those small material and social guarantees set down in the Constitution and Law «On the status of judges»;

–  unlawful interference in the administering of justice;

–  the blocking of courts, judges’ offices, including with the involvement of enforcement structures;

–  insufficient financing of court activities, financing of the court authorities on a manual basis;

–  entangling judges in the political struggle;

–  manipulations with the reorganization of courts and dismissals of judges whose rulings do not concur with someone’s interests, initiating criminal investigations against such judges;

The passing by some judges of dubious or «commissioned» rulings, flagrant violation by them in some cases of the rules of jurisdiction, involvement in so-called corporate raid seizures, corrupt dealings, including crimes, dragging out examination of court cases, participation in dodgy arrangements, a callous attitude to people, unethical behaviour of some judges and employees of the courts – none of this, of course, raises the authority of the judiciary.».

There are quite often attempts from various quarters to exert influence on judges and interfere in their work. This is borne out by surveys among judges. It must be said that the results of surveys carried out by different organizations vary considerably, however all of them confirm that they face attempts to influence them.

The procedure for choosing judges continues to lack transparency which can create favourable conditions for abuse and dependence of judges on the public officials involved in the procedure.

Powers to decide staffing issues within the court system give the Verkhovna Rada and National Deputies, as well as the President and members of his Secretariat, the opportunity to influence judges.

Nor is such influence from the Cabinet of Ministers to be included, given that the present Head of the Supreme Court was previously one of the leaders of the political force which is headed by the Prime Minister, however there is no direct proof of such influence. In fact, after losing the power to appoint the heads of courts, the opportunities for the President and his Secretariat to influence the courts have been reduced.

A typical example demonstrating the weakness of judicial independence was the situation around the appeal against the President’s Decree setting early parliamentary elections for October 2008. During these events, the President issued a decree which simply abolished the court in which the appeal was to be heard, and revoked the decree which had appointed the judge who was supposed to examine the case[7], and also allowed the deployment of internal troops to guard the courts, while National Deputies from the BYuT faction in their turn physically blocked the work of the District and High Administrative Courts, permanently positioning themselves in these court premises and not letting the court proceedings go ahead.[8] Human Rights Watch issued a special statement to high-ranking public officials demanding that they stop interfering in judicial proceedings.[9]. It was over these actions that the President and the BYuT parliamentary faction received the Ukrainian Helsinki Human Rights Union’s anti-award «Thistle of the Year» for the most flagrant political interference in the work of the justice system.[10]

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 make them 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 few 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.

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 because of the major role played by court chairpersons that the battle continued last year for the authority to appoint them. The procedure for appointments to administrative posts in the court is today the subject of much discussion. In courts of general jurisdiction chairpersons and their deputies were until recently appointed and dismissed by the President on the submission of the Verkhovna Rada Speaker, on the basis of a recommendation from the Council of Judges. In specialized courts this was on the submission of the Chairperson of a high specialized court on the basis of a recommendation of the Council of Judges of the relevant specialized courts. However on 16 May 2007 the Constitutional Court found such Presidential powers to be unconstitutional. At present the issue of judges’ appointment to administrative posts in the courts remains unregulated in law despite this being required by the Constitution.

.On 30 May 2007 the Verkhovna Rada adopted a Resolution «On temporary procedure for appointing judges to administrative posts and dismissing them from such posts» which gave the power to appoint chairpersons of courts and their deputies to the High Council of Justice. The latter did not make use of these powers since according to the Constitution which sets out the competence of this body in full, the High Council of Justice does not have such authority, nor can such issues of court structure be regulated through a Verkhovna Rada Resolution.

The next day, i.e. 31 May, the Council of Judges adopted a Decision «On the appointment of judges to administrative posts in general jurisdiction courts and their dismissal from such posts». With this the Council took on the said powers by interpreting current norms of the Law «On the Judicial System of Ukraine». This Decision was shortly afterwards upheld by the VIII Extraordinary Congress of Judges. Thus at the present time it is in practice the Council of Judges which makes appointments to administrative posts in general jurisdiction courts.

The Deputy Prosecutor General Rinat Kuzmin stated that he was planning to demand the dismissal of 350 judges. These were judges who had been, in his view, unlawfully, appointed by the Council of Judges to administrative posts since there was no normative act giving the Council such powers. He applied to the High Council of Justice to have them dismissed for infringing their oath.[11]

Numerous attempts to influence judges over particular cases are made by National Deputies. They can do this by sending Deputy’s submissions, telephone calls, meetings with the judges or chairpersons of the courts, etc.

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 results of a survey among judges, prosecutors and bar lawyers indicate a continuing high level of attempts at influencing the court’s position during examination of cases. 71% (against 77% in 2007) of judges, 54% (against 67%) and 81% (against 89%) of bar lawyers confirmed awareness of such instances. Some decrease in the level of influence can be explained by positive internal changes in the judicial system itself since over the last year there has been a reduction in influence from the heads of the courts. The most active in trying to wield unlawful influence on the court are: the parties to the case and their representatives – 55% (against 48% in 2007); Representatives of the media (41% (against 28%); participants in political rallies and pickets – 41% (35%); National Deputies (MPs) 40% (against 39%) and representatives of political parties – 34% (against 35%). The answers from the respondents (judges, prosecutors and lawyers) suggest that there is considerable pressure on judges and heads of the courts from a large number of people during judicial examination of cases. The following forms of influence are most often used: threats to do damage to somebody’s career, to have them dismissed or have disciplinary proceedings brought against them; bribery; friendly advice.[12]

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.

For example, the media reported that at the beginning of 2008 the Prosecutor initiated a criminal investigation against a judge of the Borispol City-District Court for professional negligence. This judge in one criminal case allowed an application by the defendant’s lawyer and changed the preventive measure from remand in custody to a signed undertaking not to abscond as a result of which the defendant was able to go into hiding[13]. At the same time we do not know the details of this case and cannot therefore state unequivocally that the initiation of a criminal investigation was used by the Prosecutor’s Office for the purpose of exerting influence (or revenge). However in any democratic country it would look strange that the Prosecutor – a party to the proceedings – should initiate a criminal investigation against the judge for allowing an application from the defence.

The influence exerted by the Prosecutor during court hearings into cases is confirmed by the results of monitoring carried out jointly by the Centre for Judicial Studies and the Ukrainian Independent Association of Judges in 2008. According to their survey, 31% of the respondents confirmed attempts by Prosecutors to unlawfully exert influence on the position of the court during the examination of court cases.

The Prosecutor General’s Office reports that in 2008 due to what it considers to be infringements of the law by judges, it submitted to the High Court of Justice 47 proposals (against 42 in 2007), 44 to accept an application to have judges dismissed for acting in breach of their oath, and 3 to have disciplinary proceedings brought against judges of high specialized courts. The proposals regarding submissions to have judges dismissed were, the Prosecutor General’s Office asserts, made where judges had been responsible for flagrant and systematic violations of legislation with major consequences regardless of the sphere of legal relations. However in view of the complex procedure for considering such proposals, only 1 of them was allowed (regarding a judge of the Shevchenkivsky District Court in Kyiv).

From 2006 to March 2009 only three judges were dismissed in connection with criminal convictions, however the practice is more widespread of dismissing judges accused of committing a crime without awaiting the court verdict on the grounds of acting in breach of their oath.

One of the latest examples began in December 2009 when staff from the Prosecutor’s Office and the Security Service [SBU] found 1 million USD and 2 million UAH in the office of the Chair of the Lviv Administrative Court of Appeal Ihor Zvarych. After this I. Zvarych gave a press conference at which he stated that the money was the result of «sowing» during the opening of the court according to an old tradition. On 18 December the Verkhovna Rada gave permission for his arrest and dismissed him from his position as judge in connection with a breach of his oath.[14].

Judges do not usually receive harsh criminal sentences suggesting that corporative solidarity is involved.

It is much more common for administrative pressure to be placed on a judge via disciplinary proceedings.

Overall during the period from 1 January 2006 to 1 March 2009 349 judges from general jurisdiction courts were dismissed on the following grounds[15]:

1) on an application to retire (this right is held by judges who have worked for 20 years or those unable to work due to health reasons) – 242 judges;;

2) at their own wish – 43 judges;

3) because their term of tenure has ended – 30 judges;;

4) in connection with a breach of their judges’ oath – 23 judges;

5) on reaching the age of 65 – 8 judges;;

6) due to the entry into force of a conviction – 3 judges;.

Other grounds were not applied.

Resolution of issues regarding dismissal of judges by political bodies (the President and Verkhovna Rada) for which the judge corps is not a priority very frequently leads to delays. It is common for judges who have reached retirement age or whose term of tenure has end to receive their salary for six months and a year further, however to not have the right to examine court cases. At the same time, until the issue of the judge’s leaving is resolved, the position is not considered vacant preventing attempts to find a replacement.

Disciplinary proceedings are carried out by:

1) Judicial Qualifications Commissions – dealing with local court judges;

2) High Judicial Qualifications Commission of Ukraine – dealing with judges of appellate courts;

3) High Council of Justice – dealing with judges of high specialized courts and of the Supreme Court.

Disciplinary penalties against a judge are applied no later than six months after the disciplinary offence has been discovered, not counting time when the person was temporarily unfit for work or was on leave. This regulation explains problems with an effective mechanism for disciplinary liability. Often Judicial Qualifications Commissions cannot meet such time limits since they do not work on a regular basis, and issues of disciplinary offences are considered as miscellaneous items since issues of attestation take priority. Therefore a considerable number of disciplinary proceedings cases against judges are simply terminated because the six month time limit has elapsed.

From 2006 to 27 June 2008 the High Judicial Qualifications Commission considered 38 applications to bring disciplinary proceedings against judges (8 ─ in 2006, 15 ─ in 2007, 15 ─ in 2008). 27 applications were turned down (7 ─ in 2006, 11 ─ in 2007, 9 ─ in 2008); 6 disciplinary proceedings were initiated (1 ─ in 2006, 4 ─ in 2007, 1 ─ in 2008). Review of 3 cases in 2008 was cancelled because the initiators withdrew their applications, and 2 cases have still not been reviewed. From the total number of disciplinary cases considered, four judges faced disciplinary measures. in 2006 one judge had his qualification class reduced by one class, from second to third; 2 judges were reprimanded in 2007, and one in 2008.[16]

Rules of challenge are foreseen to enable the removal of a biased judge from a case. At the same time it would be difficult to call this challenge procedure democratic. In civil and administrative proceedings, in order to avoid abuse of the right of change and use of it to drag out a case, the rule has been introduced whereby it is the judge against whom a challenge has been made who decides whether it should be allowed. In economic court and criminal proceedings it is the chairperson of the court who decides. The first variant does not promote an impartial decision regarding removal of the judge since it is the judge who determines whether or not he or she is prejudiced (most often judges will not admit that they are acting in favour of one of the parties). The second gives the chairperson of the court additional scope for interfering in how other judges’ cases are dealt with.[17]

For the first time the European Court of Human Rights found that there had been a violation of the right to a fair trial in the consideration of a case by a military court.

In the case of Miroshnik v. Ukraine, the Court noted that according to domestic legislation, military court judges are military servicemen and are part of the Ukrainian Armed Services which are subordinate to the Ministry of Defence. it also pointed out that this Ministry had carried out the material and technical service for military courts and if judges needed an improvement in their living conditions, provided them with flats and houses. Moreover, the day to day servicing of military courts was also carried out by this Ministry. The Court mentioned that the said procedure for the financing of military courts had been abolished in 2002 through a relevant law. In the Court’s view, the above-mentioned aspects of the activities of the military courts gave Mr Miroshnik objective grounds for doubting their independence in dealing with his case which involved the Ministry of Defence.

 

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

The funding requirements for the State Judicial Administration are only about 50% covered each year, with most of this going on salaries and social payments. This is despite the fact that spending on the judiciary is increasing annually, with one and a half times more money allocated in 2008 than for the previous year.

At the present time the principle of division of power within the judicial system is violated: courts administer justice and should be independent of any other branch of power or particular individuals. Yet the courts are dependent on the executive branch of power over financial, material and technological and social issues. A confirmation of this is the status of the State Judicial Administration [SJA] as a central body of executive power.

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.

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.

According to the Law «On Ukraine’s State Budget for 2008», the State Judicial Administration [SJA] should be allocated 2448.7 million UAH for ensuring the functioning of the courts and institutions. In fact, 111 million UAH, or 30% of the amount allowed for carrying out court proceedings and capital expenditure were not provided. Moreover during the year the payments were spread unevenly with 40% of the total amount planned by SJA coming in November – December. This is despite the fact that in the State Budget for 2008 spending on the justice system would only cover 48% of the real need.

At the end of 2008 only protected Articles of the Budget had been paid in full and on time. These include remuneration, extra payments linked to remuneration, monthly payments to judges who are entitled to retire but are continuing to work, spending on health revitalization for judges and payment of municipal charges and energy.[18]

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.

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.

The SJA is not able to pay off loan arrears built up by 1 January 2009 because of a Budget programme to purchase housing for judges costing 5.3 million UAH, and provide the courts with proper premises – 2.5 million UAH. Of 3, 780 general jurisdiction courts only 91 (12%) are in premises which can be called suitable for administering justice. There are 77 (11%) local ordinary courts; 4 (15%) local ordinary courts of appeal (in the Volyn, Ternopil and Chernihiv regions and in Kyiv). 5 (45%) economic courts of appeal (the Donetsk, Zhytomyr, Zaporizhya, Odessa and Lviv regions) and 4 (18%) local economic courts (the Crimea, the Volyn, Zhytomyr, Odessa and Sumy regions) The remaining court premises need reconstruction or reconstruction with building additions, or new building work. As for ensuring proper premises for administrative courts, all district and appellate administrative courts are provided with working premises. However for 50% of administrative courts the premises can only be viewed as temporary due to the insufficient amount of space. The main reason for the unsatisfactory situation is that the majority of local authorities with sufficient powers do not prioritize the importance of solving this problem. At the same time 45 court premises are at the stage of construction or reconstruction. Due to inadequate funding, the time taken for carrying out work is well in excess of norms (there are sites where work began back in the 1990s). Just for making it possible to use sites with incomplete construction and reconstruction, 161.3 million UAH are needed.

The State programme for providing courts with proper premises for 2006-2010, adopted through Cabinet of Ministers Resolution from 4 July 2006 № 918 is in danger of collapsing. In implementing this programme in 2008 a mere 2% of the total needed was allowed for, with this making it impossible to begin construction of 195 new court buildings. or to continue construction or reconstruction on 45 sites begun in previous years.[19]

In the Law «On the State Budget of Ukraine for 2009» expenditure on carrying out organizational provisions for the work of general jurisdiction courts amounts to 1 984 168, 2 thousand UAH which does not take into account either real needs – more than 9 billion UAH, or inflation. In comparison with 2008 expenditure on maintaining courts has fallen by 464, 4 UAH. More than 90% of the Budget comprises social expenditure and communal services and less than 3 % – spending on the administering of justice..

 

4. Access to justice

The principle of free access to justice entails the duty of the courts to not refuse to examine cases within their jurisdiction; convenient location of courts and a sufficient number of courts and judges.

Less than half of the people surveyed (42%) consider information about the court process to be sufficiently comprehensive. At the same time 58% of representatives of companies consider court information to be entirely accessible.[20]

 

Ratio of number of judges to the size of the population (February 2009))[21]

 

Types of courts

Number of judges on the staff

Number of people per judge

Number of judges per million head of population

General courts including military

6 381

7 231

138

Local

4 645

9 934

100

Appellate

1 736

26 580

37, 6

Administrative courts

1 121

41 163

24

Local (district)

672

68 666

14, 5

Appellate

352

131 090

8

High Administrative Court

97

475 708

2

Economic courts

1 214

38 009

26

Local

677

68 159

15

Appellate

442

104 397

10

High Economic Court

95

485 723

2

Supreme Court

95

485 723

2

Constitutional Court

18

2 56 353

0, 4

Total

8 829

5 226

191

 

It should be noted that according to the Code of Administrative Justice certain categories of administrative cases are also examined by local general courts (except military). Therefore the total number of judges who can deal with administrative cases comes to 5, 712, this meaning a ration of 1 judge for 8, 078 people, and per million head of population there are 124 such judges.

The calculation of the ration between the number of judges of economic courts and the population is not so indicative since these courts mainly consider cases between legal entities.

We should also stress that the number of judges presented here reflect the official staffing numbers however around one thousand posts remain vacant. Therefore the number of members of the population per working judge is in fact much higher than in the table.

There remains 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.

On the other hand since 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. Even the courts do not have this right, except the Supreme Court.

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.

There is a significant problem for people living in isolated rural areas to gain access to the courts. The overwhelming majority of district [raion] 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 and to defence

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.

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 despite the fact that the European Court of Human Rights regards such procedures in many cases as criminal procedural in their essence and that 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 State provides free legal aid only in some categories of criminal cases or for some categories of people accused. The quality of such aid is generally low, and often such appointed lawyers are simply present during the proceedings, without actively fulfilling their procedural defence functions. This is partially due to the pitiful payment for their serves: the amount paid to bar lawyers in such cases is a mere 15 UAH for a full working day, and to get this a lawyer has to obtain three documents.

On 11 June 2008 the Cabinet of Ministers adopted Resolution № 539 «On amendments to the Procedure for remuneration to bar lawyers for providing citizens with legal aid in criminal cases at the State’s expense», with this coming into force from 1 January 2009. It increased the size of remuneration for lawyers with this fixed on the level of 2.5% of the minimum hourly rate for a bar lawyer during proceedings at detective inquiry, pre-trial investigation or court examination of a criminal case (as of the beginning of March 2009 this was a little more than 15 UAH per hour). Clearly this level is also too low when compared with the market fees charged by lawyers.

 

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..

 

Efficiency of consideration of cases by local general jurisdiction courts [22]

№ з/п

Indicator

2007

2008

Rate of change, %

Criminal cases

1

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

186244

182100

-2, 23

2

Cases scheduled for examination with infringements of the time limits set down in Article 241 of the Criminal Procedure Code [CPC]

1425

1202

-15, 65

Percentage of the number of cases where proceedings have been completed

0, 77

0, 66

Х

3

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

3867

3609

-6, 67

Percentage of the number of cases where proceedings have been completed

2, 08

1, 98

Х

4

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

40348

44891

11, 26

Percentage of the number of cases where proceedings were underway

17, 81

19, 78

Х

5

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

5363

7642

42, 49

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

18, 60

22, 67

Х

Administrative cases

6

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

126035

148972

18, 20

7

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

14439

13912

-3, 65

Percentage of the number of cases where proceedings have been completed

11, 46

9, 34

Х

8

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

19970

65069

225, 83

Percentage of the number of cases where proceedings were underway

13, 68

30, 40

Х

9

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

18557

63844

244, 04

Percentage of the number of cases where proceedings were underway

12, 71

29, 83

Х

10

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

5299

10000

88, 71

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

28, 56

15, 66

Х

Civil cases based on law suits, separate proceedings

11

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

1240758

1257092

1, 32

12

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

123484

138696

12, 32

Percentage of the number of cases where proceedings have been completed

9, 95

11, 03

Х

13

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

207892

252686

21, 55

Percentage of the number of cases where proceedings were underway

14, 35

16, 74

X

14

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

183805

230882

25, 61

Percentage of the number of cases where proceedings were underway

12, 69

15, 29

Х

15

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

40846

60184

47, 34

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

22, 22

26, 07

Х

 

As can be seen from this table, the number of cases not considered is increasing considerably, and this is a cumulative effect. The situation is similar in the High Courts and Supreme Court, but better in courts of appeal.

There is a particularly acute problem with the Supreme Court’s workload from cassation appeals against general jurisdiction court rulings in civil cases. The situation was temporarily improved by passing the function of judging at cassation level in civil cases to general courts of appeal. The courts of appeal were handed cassation appeals submitted to the Supreme Court before 1 January 2007, while all appeals which began coming from the beginning of 2007 are again piling up, overloading the Supreme Court. On average in 2007 there were 57 new cases for each judge of the Supreme Court i(in the Civil Proceedings Chamber the number is considerably higher). By some estimates at the end of 2008 there was a build up of 22 thousand cases still to be examined.

There are also problems in the High Administrative Court where the load is high as well. The reason here is that the Court does not have a full number of judges. If it was working to full capacity, the problems would disappear.

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. There are also problems with judges not being appointed due to parliament working irregularly.

The average workload for a local court judge is 178, 86 cases and files a month (against 160, 04 in 2007) and for an appeal court judge – 9, 61 (11, 27 in 2007). The average monthly workload for a judge in the district administrative courts is 78, 08 cases and files (у 2007– 59, 61), while in administrative courts of appeal the figure is 29, 92 (against 11, 42 in 2007).

During the first half of 2008 there were on average for the year 800 cases for each judge of the Lviv Administrative Court of Appeal, this being an increase of 25% over the previous six month period. Due to the difficult political situation and the blocking of the work of the Verkhovna Rada, judge vacancies have still not been filled. Accordingly, of the 76 judges as per the staffing schedule, only 14 are at the present time administering justice. At the same time 11 judges have been waiting for National Deputies’ vote for over half a year. Their appointment would make it possible to accelerate considerable of claims received by the court and bring the period of time for examining cases into line with current legislation. This is while in the first half of 2008 the present judge corps only managed to examine 37% of the overall number of cases awaiting consideration by the Lviv Administrative Court of Appeal.[23]

It is worth pointing out that the military courts have virtually no workload.

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 more and more often the reason for Ukraine losing cases in the European Court of Human Rights

In the case of Lugovoi v. Ukraine (application № 25821/02) the European Court of Human Rights found that there had been a violation of reasonable periods for examination in this case which had gone on for around 10 years.

In the case of Rishkevych v. Ukraine (application № 35312/02) the Court decided that in this case the length of criminal proceedings – over 4 years – was excessive and did not meet the requirements of a «reasonable period».

The Court had previously passed such judgments on a number of occasions involving analogous cases.[24]

 

7. 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.) The lack of a proper level of legal culture among high level public officials causes considerable problems. 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 incriminate 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 [25]

 

№ з/п

Indicator

2007

2008

Rate of change

 

%

1

The number of criminal cases considered by the courts (taking into account cases returned to Prosecutors under the procedure in Article 232 of the CPC, and not counting cases that were not initiated other than through a complaint from the victim.

185773

181415

-4358

-2, 35

2

Cases returned by first instance courts for further investigation (Articles 246, 281 of the CPC) (not counting cases that were not initiated other than through a complaint from the victim.)

6858

5751

-1107

-16, 14

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

3, 69

3, 17

Х

Х

3

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

1444

1250

-194

-13, 43

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

0, 78

0, 69

Х

Х

4

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

2873

1826

-1047

-36, 44

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

1, 55

1, 01

Х

Х

5

Total number of criminal cases returned by the courts and withdrawn by prosecutor’s offices (not counting cases that were not initiated other than through a complaint from the victim.

11175

8827

-2348

-21, 01

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

6, 02

4, 87

Х

Х

6

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

2029

1959

-70

-3, 45

7

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

2348

2452

104

4, 43

 

An additional infringement of the presumption of innocence is the application of amnesties with respect to people whose criminal examination is still in process without their consent.

A serious problem linked with the presumption of innocence is the extremely low percentage of acquittals. This low percentage was typical for the judicial system from back in Soviet times, which can be explained by the retention of Soviet traditions of criminal process, the restricted application of adversarial process, especially at pre-trial stage and a system of further investigation (where there is insufficient evidence of guilty the courts often return a case to the investigators for «further investigation», where the case is often closed without an acquittal).

In 2007 165.5 thousand people were convicted in Ukraine, while only 689 were acquitted, with 337 of these being in private prosecution cases. This means that acquittals are handed down in less than half a percent of cases! These figures count both rulings which have come into force and those which haven’t. If we take only sentences which came into force in 2007, then the numbers acquitted were even lower – 459 people, of whom 300 were in private prosecution cases. We thus see that in those cases involving the State prosecution, acquittals are a real rarity.

There were almost no noticeable changes in practice from 2005-2007 which is reflected in the ratio of convictions and acquittals.

 

The numbers of people convicted and acquitted[26]

 

Convicted - number in thousands / as a percentage

Acquitted - number in thousands / as a percentage

2005

196, 6 / 99, 5 %

0, 9 / 0, 5 %

2006

177, 6 / 99, 5 %

0, 9 / 0, 5 %

2007

165, 5 / 99, 5 %

0, 7 / 0, 5 %

 

In 2008 the number of acquittals fell to 539 of which 8 were revoked at appeal level with a new verdict, while 57 were revoked with the case being sent for further investigation.

 

8. Ensuring justice of the criminal process

There is still a major problem with the lack of proper practice regarding the admissibility of evidence in the criminal process. It is common for judges to use evidence obtained with violation of human rights: the right to defence, the use of torture and ill-treatment, the use of a person’s testimony against him or herself, etc.

The European Court of Human Rights is increasingly paying attention to these problems.

In the case of Lutsenko v. Ukraine[27] the European Court found that there had been a violation of the right to a fair trial in the use as main evidence of Lutsenko’s own testimony given during a previous investigation as a witness and which he had later retracted. The Court found that the right of defence had been restricted through the violation of guarantees regarding testimony against oneself and ordered the government to carry out a new court examination into the case.

In an analogous case Shabelnyk v. Ukraine[28] the European Court also found that there had been a violation of Article 6 of the Convention because the murder conviction against M. K was based on evidence obtained through violation of Mr Shabelnyk’s right and privilege to remain silent and not incriminate himself, as well as because he had been obstructed and stopped from exercising his right to defence when being interrogated by the pre-trial investigation unit. In this case Shabelnyk had begun incriminating himself when questioned as a witness and warned of criminal liability if he refused to give testimony. Then after having received his testimony and on the basis of it, he had been charged and later convicted.

Another systemic problem is the lack of nongovernmental forensic medical assessments. One can with good grounds doubt the independence of State-employed experts in examining cases against the authorities or State institutions. The Ministry of Justice issues permits for their work, ensures funding and also establishes standardized method guides for the work of experts. These method guides are often fairly controversial and the question arises as to whether it is possible at all to introduce a single methodology for expert assessments of moral damage inflicted.

As well as well-founded doubts as to the independence of State-employed experts, there is also a problem with the effectiveness of the activities of this State system. For example in Ukraine there are no experts or method guides at all on certain types of knowledge. Due to the lack of separate method guides, specialists and equipment, some forms of crime detection, technical engineering and commodity expertise are not carried out. The Ministry of Justice has not resolved the issue of accreditation of Ukrainian forensic science institutions according to the international 1SO 17025 standard, and Ukraine’s jointing the European Network of Forensic Science Institutes [ENFSI]. As a result, international cooperation is hampered in carrying out complex, multiple element expert assessments, nor is methodological backup being developed through differentiation of scientific research and wide exchange of information on a single methodological basis has not been organized.[29] Clearly all these difficulties would be easily overcome if there were also nongovernmental forms of expert analysis.

 

9. 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

The following are some examples of European Court of Human Rights judgments connected with court rulings not being enforced for a long time.

Lopatyuk and others v. Ukraine, from 17 April 2008: 121 employees against the State-owned company «Atomspetsbud»;

Pashuk v. Ukraine (Application № 34103/05) from 12 June 2008: over the non-enforcement of a court ruling on a payment of compensation to teachers. Parliament passed a law on recognizing awarded amounts as State debt, however the European Court found that such a law violates the right to a fair trial due to the infringement of the reasonable timeframe for enforcing such a ruling. .

Miroshnik v. Ukraine from 27 November 2008: non-enforcement of a court ruling for over 8 years regarding compensation for expenses incurred on military uniform and over the unlawfulness of his dismissal.

There were also judgments regarding non-enforcement of court rulings in the cases of Kharchuk v. Ukraine, Saksontseva v. Ukraine and dozens of others.

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 statistics, as of 1 January 2009 the State Bailiffs’ Service was due to enforce 7 982 785 writs of execution worth in total 61 242 694 122 UAH. This was 666 004 documents and 9 038 849 520 UAH more than in 2007 (when 7 316 781 writs of execution were due to be enforced worth 52 202 844 603 UAH). Bailiffs completed 5 126 775 documents (64, 2% of the total awaiting enforcement) worth 20 945 516 222 UAH (34, 2%), this being 629 509 documents and 1 905 385 071 UAH more than for 2007 (when 4 497 266 writ documents were completed, worth 19 040 131 151 UAH). 2 760 682 writ documents were actually enforced (34, 66% of the number awaiting enforcement) and 6 036 963 509 UAH retrieved. (9, 9%), this being 369 481 documents and 456 632 551 UAH more than for 2007 (during 2007 2 391 201 documents were actually enforced, and 5 580 330 958 UAH in all retrieved.).

 At the end of the period in question, there were 2 856 010 documents remaining, worth 9 905 529 819 UAH, this being 36 495 documents and 7 744 263 889 UAH more than in 2007 when there were 2 819 515 writ documents outstanding worth 32 161 265 931 UAH.

The average workload for each State Bailiff is 108 writ documents per month.

In terms of the number of completed writ documents the following regions were lower than the average around Ukraine (64, 2%): the Donetsk region – 54, 2% and Sevastopol – 54, 6%. As for the amounts according to completed writ documents the following were lower than the average (31.3%) around Ukraine: the Donetsk region - 24, 2.%, Ivano-Frankivsk region – 31, 3%, Rivne region – 30, 0%. According to the number of actually enforced writ documents figures lower than the average for Ukraine (34, 6%) were seen in: the Donetsk region – 22, 4%, Kyiv – 22, 9%, Sevastopol – 24, 9%. In terms of the amounts according to completed writ documents following actual full enforcement, the average figure for the country (9, 2%) was not reached in the Kherson region – 6, 7% and the Ivano-Frankivsk region – 6, 9%. The largest amounts as per terminated writ documents were in the Dnipropetrovsk region – 1 383 818 878 UAH., the Donetsk region – 3 666 666 304 UAH and in Kyiv – 1 106 125 409 UAH.[30]

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».[31] 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.[32]

There are also problems in the fact that gaps in legislation create the conditions for escaping liability for non-enforcement of rulings.

According to data from the Prosecutor General’s Office, following checks by Prosecutor’s offices, 258 criminal investigations were initiated over deliberate non-enforcement of court rulings, two thirds of which were passed to the court.

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

 

10. Corruption in the judicial system

The problem of corruption in the courts has over the last decades become systemic.

According to a survey carried out in March 2008 by the Kyiv-based company InMind as part of an ACTION [«Promoting Active Citizen Engagement in Combating Corruption in Ukraine»] project, implemented by Management Systems International [MSI] with the financial support of USAID, members of the public, companies, lawyers and prosecutors give more or less the same assessment of the system of corruption in the courts. Around 80% of representatives from each of these groups consider the judicial system to be in one way or another corrupt. At the same time, the percentage of those individuals and companies tat have themselves encountered corruption is significantly lower – around 27%.[33] Even so the figure is fairly high with one in four having personally encountered corruption in the courts.

Almost a third of lawyers and prosecutors see corruption as a normal thing at all stages of court proceedings. A further third of those surveyed (36-39%) say that it is the pre-trial investigation that is the most corrupt stage. In addition, 64% of lawyers and prosecutors surveyed are convinced that over the last year the level of corruption in the judicial system has risen. Among corrupt dealings which both individuals and companies most often use are personal connections, and next in line demanding or voluntarily offering a bribe. We would note that companies practise to an equal extent offers of unofficial payments (20%) and encounter demands (21%).[34]

The results show a greater number of cases of corruption from individuals turning to the appeal courts, as against local courts. The opposite is true of the situation with companies. Among types of corruption encountered both by individuals and by companies, those most often encountered are the use of personal connections, followed by demanding or voluntarily offering a bribe.[35]

Judges themselves do not deny that there is bribe-taking in the courts. Half of the judges had one way or another encountered offers of bribes in the form of money or services, 40% seeing this very often, 10% not infrequently.

The most widespread practice involving corrupt relations is using personal connections. Bar lawyers are more often than others involved in corrupt relations, followed by judges and court employees.[36]

On 9 July 2008 officers from the Prosecutor General’s Central Department on Investigating Particularly Serious cases and the MIA Central Department for Fighting Organized Crime arrested «red-handed» one of the chairpersons of a district court in the Dnipropetrovsk region. He was alleged to be taking a bribe of 50 thousand USD for handing down a ruling changing remand in custody of one of the defendants in a criminal case to a signed undertaking not to abscond. The Prosecutor General initiated a criminal investigation over elements of the crime set down in Article 368 § 3 of the Criminal Code. The investigation is underway.

The phenomenon of corruption is thus quite widespread in the judicial system with its existence posing a great threat to the transparency and justice of the courts.

 

11. Recommendations

1) Continue implementing the Strategy Concept 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, pass the combined Law on the Judiciary and on the Status of Judges[37]and Law on Court Duty which were submitted by the President to the Verkhovna Rada in December 2006, passed by parliament in their first reading and already prepared by the parliamentary committee for their second reading.

2) Continue implementation of the Strategy Concept for reforming the system of free legal aid approved by Presidential Decree on 9 June 2006 № 509/2000.[38]

3) Begin implementation of the Strategy Concept for reforming criminal justice, passed by Presidential Decree on 8 April 2008 № 311/2008[39], in particular, by reforming criminal procedure law and passing a new Criminal Procedure Code[40]

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) Make amendments to procedural legislation and the law on enforcement proceedings which will ensure mandatory entry of all court rulings into the Single State Register of Court Rulings.

6) 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

7) 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

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

9) 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.

10) 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.

11) Via legislation ensure the work of nongovernmental experts and expert bureaux

12) 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.

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

14) On the basis of the Strategy Concept for improving court proceedings increase the efficiency of the Bailiff’s Service by strengthening legal and social defence of State Bailiffs, improving guarantees of independence, as well as the legislative norms which directly regulate the procedure for enforcement of rulings.

15) 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.

16) 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 Reports for 2004 to 2007remain entirely relevant

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

[3] 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.

[4] Cf. for example, “In the organization and running of court proceedings by the administrative courts there are significant flaws which need immediate rectification”: // Supreme Court website, 6 April 2009 http://www.scourt.gov.ua;  «Ukraine’s administrative courts: summary and consequences of their work” // “Dzerkalo tyzhnya” № 13 (741) 13 — 20 April 2009,   http://www.dt.ua/1000/1050/65884; «Can a Ukrainian defend himself against unlawful actions of the authorities in administrative courts // the information agency UNIAN, 15.04.2009 http://human-rights.unian.net/ukr/detail/190450;

[5] Available at: http://www.president.gov.ua/documents/7703.html.

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

[7] In general the practice of the President in revoking decrees appointing judges has become common. The President has no grounds for dismissing a judge and therefore the decree appointing the person is revoked. This gives rise to many questions, for example, what to do with the rulings which the given judge passed down during all the years he or she occupied that post, what to do with their salary, etc. The legal absurdity in the issue of such decrees is clear.

[8] For more on this conflict see: “Supreme Court Head speaks of threat to Ukraine’s justice system http://www.helsinki.org.ua/en/index.php?id=1224081422 : “Council of Judges critical of mounting pressure on judges” http://www.khpg.org.ua/en/index.php?id=1225136676  and “Political Monopoly http://www.khpg.org.ua/en/index.php?id=1224425564

[9] Ukraine: Respect Independent Judiciary: Political Leaders Should Stop Using Court as Political Tool, Human Rights Watch statement from 21 October 2008 http://www.hrw.org/en/news/2008/10/28/ukraine-respect-independent-judiciary .

[10] More on the Thistle of the Year anti-awards for 2008 at: http://www.helsinki.org.ua/en/index.php?id=1229084701 

[11] Deputy Prosecutor General initiates the dismissal of 350 judges” // Internet publication “Korrespondent”, 2 February 2009 http://korrespondent.net.

[12] “Monitoring of Judicial Independence in Ukraine: 2008”, 2 December 2008, http://helsinki.org.ua/en/index.php?id=1228330337 ; The study was carried out by the Centre for Judicial Studies with the support of the Council of Judges of Ukraine, the All-Ukrainian Independent Judges’ Association, the Union of Bar Lawyers of Ukraine and the Ukrainian Association of Prosecutors. It was based on a survey carried out during August and September 2008 in 8 regions of the country of 1, 072 judges of appellate and local courts, together with 630 regional and district-level prosecutors and 590 bar lawyers.

[13] “A criminal investigation has been initiated against a judge for “negligence” // 16 January 2008 http://newsru.ua/crime/16jan2008/suddia.html.

[14] http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=698-17

[15] “Report on the judicial system and judicial reform in Ukraine”. Centre for Political and Legal Reform, March 2009, p. 22 www.pravo.org.ua

[16] Information Herald of the High Judicial Qualification Commission № 2(6)�, Published by the High Judicial Qualification Commission with the support of the USAID project “Ukraine: Rule of Law”.

[17] “Report on the judicial system and judicial reform in Ukraine”. Centre for Political and Legal Reform, March 2009, p..37, www.pravo.org.ua.

[18] Conclusions on implementing the Budget and using funding from the Budget in 2008. State Judicial Administration website, http://www.court.gov.ua; Resolution of an extended and joint meeting of the Presidium of the Verkhovna Rada, the Presidium of the Council of Judges and the panel of the State Judicial Administration from 18 April 2008 “On the administering of Justice I from 18 April 2008 “On the situation with administering justice in 2007, and tasks for 2008”».

[19] “A meeting has taken place of the panel of the State Judicial Administration (State Judicial Administration website 26 February 2009, http://www.court.gov.ua.

[20] Study of corruption in Ukraine’s judicial system: general jurisdiction and appellate courts. July 2008. «Management Systems International» (MSI) in cooperation with the research company «InMind», Kyiv http://www.ukrainerol.org.ua.

[21] “Report on the judicial system and judicial reform in Ukraine”. Centre for Political and Legal Reform, March 2009, p..48, www.pravo.org.ua.

[22] According to figures from the SJA for 2008

[23] “One judge of the Lviv Administrative Court of Appeal has to cope with 800 cases // 6 August 2008, http://www.helsinki.org.ua/index.php?print=1218006649.

[24] Cf. Antonenkov and Others v. Ukraine (no. 14183/02, judgment of 22 November 2005 and Yurtayev v. Ukraine (no. 11336/02, judgment of 31 January 2006.

[25] 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.

[26] According to data from the State Judicial Administration (http://www.court.gov.ua/home/home.php?razdel_id=11899). These figures cover both sentences which have come into force, and those that have not.

[27] Judgment from 18 December 2008 (Application No. 30663/04), http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

[28] Judgment from 19 February 2009 (Application № 16404/03) http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

[29] “The lack of an expert assessment means incomplete court proceedings” // Official report from the Accounting Chamber of Ukraine: panel decision, 25 November 2008 http://www.ac-rada.gov.ua/achamber/control/uk/publish/category/main?cat_id=411.

[30] On the main conclusions of the work of the Ministry of Justice and its territorial bodies in 2008 and tasks for enhancing the efficiency of its work in 2009 http://www.minjust.gov.ua/.

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

[32] 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/

[33] The results of the survey are taken from the ACTION website (http://www.pace.org.ua/content/category/1/1/53/lang, en/ ).

[34] Press release, 17 July 2008 (http://www.pace.org.ua/content/category/1/1/53/lang, en/

[35] Ibid .

[36] According to the results of a survey of judges from the site of the USAID Project “Ukraine: Rule of Law” (http://www.ukrainerol.org.ua/index.php?option=com_docman&task=doc_download&gid=72&Itemid=23).

[37] Parliamentary committee combines two draft laws - № 0917 and 0916 -, submitted by the President into one № 0916, which joins the name and subject of regulation. Available at: http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id=&pf3511=30845.

[38] Available at: http://www.president.gov.ua/documents/4549.html.

[39] Available at: http://www.president.gov.ua/documents/7703.html.

[40] 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 drawn up by a working group of the National Commission for the Strengthening of Democracy and the Rule of Law.

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