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Human rights in Ukraine 2009 – 2010. 4. Right to fair trial

   

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1. Overview

The judicial system reform implemented in May-July 2010 became the most significant event over the last years. At the same time judicial system became more politicized and judges – more dependent on politicians. The reform has been anticipated for years; at the end, however, it failed in many aspects.

Past years were marked by serious violations of the right to fair trial. The major problems in this area can be described as follows:

  • Violation of reasonable time limits established for consideration of cases and mass non-execution of court decisions;

  • Deviation of general courts system, types and stages in administration of justice from requirement of the Constitution;

  • Incomplete reform of procedural law; criminal procedure and proceedings on administrative offence, adopted at the soviet times, their concept and provisions contradict many human rights’ standards;

  • Courts’ overload and lack of operation transparency;

  • Lack of financial and administrative independence of the judges: the judges’ appointment is not a transparent process; the judges’ remuneration is not defined by clear system; heads of courts perform a lot of functions, inappropriate for their status (i.e. administrative and managerial functions, cases assignments, professional growth and social benefits for the judges (vacations, awards etc.), widely exercised pressure on behalf of the authorities;

  • Insufficient funding for judicial branch;

  • Low professional qualifications of a large number of judges and low efficiency of the professional responsibility system;

  • High corruption rate among judges.

Judiciary reform was launched as early as in 2006 by President Yushchenko and National Commission for the strengthening of democracy and rule of law, set by him. This Commission developed a draft reform concept, which was approved by the Presidential Decree no. 361/2006 of May 10, 2006. Later several laws, needed for reform implementation, were prepared. Due to various political hindrances, however, these draft laws were blocked at the second hearing at Parliament.

In March 2010 President Yanukovich made public his plan of reforming the judicial system. All the earlier drafts were revoked and the Parliament repealed the majority of draft laws accepted at the first parliamentary hearing.

In fact, the working group, set up under the Presidential Administration, used earlier drafts to develop a draft law “On Judicial System and Status of Judges”. The draft included about 70% of provisions, developed earlier.

The draft law “On Judicial System and Status of Judges” contained a new version of two earlier laws as well as numerous amendments to the procedural codes.

On May 31, 2010 the President submitted the draft law “On Judicial System and Status of Judges” to the Parliament.2 It was adopted at the first hearing immediately, on June 3, without any public or parliamentary discussion. On July 6 the draft law, ready for the second hearing, was made public. The new version did not differ substantially from the first one. The next day, July 7, the Parliament adopted the law as a whole. Human rights groups and other NGO’s as well as individual activists (132 persons in total) approached the President asking him to veto the law in question3; the President, notwithstanding, signed the law and it came in force on July 27, 2010.

Despite most varied opinions of the reform, the majority tends to argue that, although having some positive aspects, the reform in general aggravated the situation, unbalancing the judicial system and making the judges even more dependent on politicians. A number of other amendments, introduced by the reform, can also be classified as violations of the right to fair trial.4

The final setting up of specialized courts (i.e. administrative, civil, criminal and commercial (former arbitration) courts as well as elimination of court martial can be regarded as achievements of the reform. The function of Supreme Court, however, remains rather unclear, as under the current procedure, no cases ever reach it. Under the circumstances each branch of specialized courts carries out its own jurisdiction, independently of each other. In fact, no efficient system aimed at harmonizing their operation, is in place. Meanwhile, the Supreme Court has no jurisdiction to influence the judicial practice of the specialized courts.

The procedure for judges’ selection and their social and material remuneration, clearly defined by the law, is another positive development, although with its own shortcomings.

In general terms, the following faults of judicial reforms can be listed:

  1. The broadening of competences of the High Council of Justice in appointing, dismissing and disciplining the judges. Besides, the law stipulates that all the heads of the courts and their deputies, with the exception of the Supreme Court, are appointed to their office and dismissed by the High Council of Justice on the motion by the respective judges’ council. The High Council of Justice remains a political body, set up primarily by other bodies of authority. Besides, p.1, article 131 of the Constitution exhaustively covers the competences of the High Council of Justice, and these competences are not there.

  2. The setting up and liquidation of courts on the motion made by the Minister of Justice and the President of a High Specialized Court (article 19 of the Law), remain the presidential prerogative, in violation of p.1, article 6 of the European Convention on Human Rights, which requires the court to be set up by the law. It means that “legal proceedings in a democratic society shall not depend on executive power decisions, but must be regulated by law, the source of which is parliament”.

  3. Article 86 of the Law “On Judicial System and Status of Judges”, notwithstanding a formal clause on adversary proceedings (part 11), still retains an inquisitorial (and not adversarial) procedure for holding judges disciplinary liable. A member of the High Judicial Qualifications Commission of Ukraine or the High Council of Justice in the same time conducts inquiry in respect of a judge in question, prepares his opinion based on the inquiry, and participates in adjudicating disciplinary sanction. In other words, a member of a disciplinary body wears the hats of investigator, prosecutor and judge in regard to another judge. This is a breach of both adversary and impartiality principles. Under the European standards, the disciplinary procedure shall be similar to the one, spelled out in Article 6 § 1 of the European Convention on Human Rights and fully guarantee the right to defence5.

  4. Participation in the Congress of Ukrainian Judges and the Council of the Ukrainian Judges stipulates equal representation from each court jurisdiction. As a result, the judges of common law courts are under-represented. This order of forming the most representative body of judges leads to the situation, when over 6 thousand judges of the common law courts are less represented than 2.5 thousand of the administrative, commercial and administrative courts judges taken together. The Judges’ Congress has the authority to elect judges for the Supreme Judicial Qualification Commission and High Council of Justice. These bodies both have broad competences in addressing the issues of selection, carrier advancement and responsibility of the judges. Therefore, they must meet the requirements of an “independent body with significant representation of the judges, elected democratically by other judges”6.

  5. Article 80 of the Law “On Judicial System and Status of Judges” stipulates that a judge is elected to the superior court or court of a given specialization for life. This procedure, however, does not envisage competition or provide criteria, under which the judges are elected to the superior court. The provisions stipulate only that the contenders submit an application, undergo an interview at the Supreme Judicial Qualification Commission and have required term of professional service (seniority) as judges. However, under p. 4.1 of the European Charter on the Statute for Judges, p. 29, conclusion no. 1 (2001) of Consultative Council of European Judges Standards concerning the Independence of the Judiciary and Irremovability of Judges, the term of professional operation must not be a leading criterion for judge’s promotion; professional experience and term in office shall be taken into account only as additional basis for a judge’s independence.

  6. Article 66 and 69 of the Law “On Judicial System and Status of Judges” stipulate that candidates for the judge’s office must undergo a specialized 6-months training in a specialized law school of the 4th accreditation level, followed by National School for Judges training. The requirement for future judges’ training in a law school of the 4th accreditation level (Institute for professional judges’ upgrading in Odessa and similar department of Yaroslav the Wise National Law Academy in Kharkiv), under the Ministry of Education and Science, is at variance with recommendation p. 66, Conclusion no. 10 (2007) of the Consultative Council of European Judges Standards concerning the Independence of the Judiciary and Irremovability of Judges, “Judicial council serving society”. Obviously, the judges cannot receive the training, based on European standards, in the education institutions under the Ministry of education, especially as far as the accreditation goes. A special autonomous institution, controlled by the judges, should be set up to that end.

  7. The limits of action terms and procedural terms for appeal were reduced; the possibility of appeal in certain administrative offences cases was banned, thus potentially restricting the right to the court access or the right to appeal. The terms for court proceedings were also shortened, which will have an adverse effect on the quality of adjudication in complicated cases, considering the huge caseload of judges.

  8. Curtailing material and social benefits for the judges. In particular, the judge’s right to resign on health reasons is revoked; the amount of severance pay for the resigned judges is reduced; the list of offices, service in which is added to judge’s seniority, is cut down; the provision, allowing the judges to use only corporate housing to improve their living standards; free medical care in public health care system is granted only to retired judges and their family members; the social security for judges is changed and a number of other material and social benefits are revoked. Under the pretext of introducing higher wages starting 2015, the current law is cutting down actual deductions for the judges.

Mass resignation of judges with highest seniority became one of the first consequences of the reform.7 By the end of the year their number exceeded 700, i.e. about 10 % of all judges. The reasoning behind the resignations included the down cuts in wages and pensions and increased pressure on judges.

On October 15-16 the Council of Europe Venice Commission adopted a joint opinion on the Law “On Judicial System and Status of Judges”8. The opinion draws on positive changes in guaranteeing judges’ independence in certain areas and in introducing the random assignment of cases in courts, putting State judicial administration under control of judicial power and liquidating martial-law courts.

On the other hand, commission expressed its concern regarding the increased role of High Council of Justice (as long as it’s set up by political bodies) and decrease of the Supreme Court status. In general, 30 serious reprimands and recommendations on amendments to this Law counterbalance the four positive characteristics. This disproportion demonstrates that actual changes are rather of negative instead of positive nature.

The passing of the Law “On Amending certain legislative acts of Ukraine in relation to the prevention of abuse of the right to appeal” 9 can be also considered in the framework of judicial reform. The law stipulates that elections or all-Ukrainian referendum results, established by the Central Election Commission, as well as the appeal cases on (in)activities of the Parliament of Ukraine, President of Ukraine or High Council of Justice are within the jurisdiction of the Highest Administrative Court as a trial court with any possibility to appeal against its decision. Besides, the law grants very broad competences to the High Council of Justice in bringing disciplinary action against judges. Thus, a judge or another subject on first demand shall deliver any documents, including the copies of the documents of cases, which had been or still are under consideration, to the High Council of Justice. The competences of the Council in the matters of judges’ discharge, especially, for the breach of the oath, have also been broadened. In fact, it allows for the dismissal of any disliked judge.

The Council of Europe Venice Commission was very critical with regards to this law.10 It argued that while the High Council of Justice is formed by the political bodies, its authority should decrease instead of increasing. Also it expressed its concern with politicization of the disciplinary actions against judges.

Despite active criticism voiced by many experts, 11 the law has been actively implemented over the year.

Refusal of Constitution Court to allow the petition on constitutionality of this law came as no surprise.12

Simultaneously with legislative changes, judges’ political dependence has being increased by replacements of heads of courts and judges of high courts. The people susceptible to political pressure were appointed to the new offices.

Thus, Leonid Fesenko, former Member of Parliament from the Party of Regions, was appointed a President of the High Specialized Court for Civil and Criminal Cases. Under the law “On Judicial System and Status of Judges”, the motion for the appointment of the Head of the High Specialized Court for Civil and Criminal Cases is submitted by the Council of Judges of general jurisdiction courts, while the final decision is made by the High Council of Justice. However, Fesenko himself revealed that the proposal to become the head of the Court came directly from the President of Ukraine.13 Fesenko’s biography shows that he has been Member of Parliament for two convocations and for 10 years has headed Luhansk court of appeals. This gives grounds for prejudice, both in regard to independence and autonomy of the appointing bodies and the judge himself.

In December, Mykola Pshonka, the Prosecutor General’s sibling, was appointed Fesenko’s deputy.

In September 2010 Oleksandr Pasenyuk was approved as a President of the High Administrative Court. He occupied this position since 2005 and was lobbied by one of group in Presidential Administration that was in charge of developing judicial system reform.

In September Viktor Tat’kov, the former Head of Donetsk Commercial Court of Appeals, was appointed a new President of the High Commercial Court.

Four judges of the Constitutional Court were also replaced in September. Unexpectedly, the four judges sent in their resignations. They have been known for their determined stand, disagreeable to the President position in a number of cases. They were immediately replaced, thus ensuring pro-presidential majority in this court.14

Therefore, the President and ruling Party of Regions, thanks to presidential and parliamentary functions and High Council of Justice, have all the necessary levers to exert pressure on judges, thus ensuring the decisions they want. The judges’ operation is monitored more closely and court hierarchy and discipline are enhanced, thus guaranteeing handling of the judges. It is also clear that increase in pressure exerted on judges and diminishing of the role of the Supreme Court as the only institution, controlled by the opposition party, were the main goals of the judicial system reform.

 

2. Courts’ and judges’ independence

As stated above, the High Council of Justice became the main instrument of political pressure on judges. This body has usurped most important functions, i.e.

  • Key role in appointment and dismissal of judges;

  • The right of its members to initiate disciplinary action against a judge and broad competences in demanding any documents, including the files of the cases under judge’s consideration;

  • Appointment of the chief justices.

At the same time this entity itself remains extremely politicized. Under the Constitution, the High Council of Justice is composed of 12 members. The Parliament of Ukraine, the President of Ukraine, Congress of Ukrainian Judges, Congress of the Ukrainian Attorneys, Congress of Higher Law Schools and Research Institutions appoint three members each, all-Ukrainian Congress of the Prosecutor’s Office Employees – two members. By virtue of their office the President of the Supreme Court of Ukraine, the Minister of Justice of Ukraine, and Prosecutor General of Ukraine are also members to the Council.

Therefore, in Ukraine, where the parliamentary majority and the President belong to the same political force, and this force appoints senior executives (principals of high law schools, ministers, prosecutor general etc.), only 7(or less) members of the High Council of Justice can remain independent.

Appointing the Head of the Security Service of Ukraine V.Khoroshkovsky a member of the High Council looked rather bizarre. He was dismissed from this position only in December 2010. The membership of two prosecutor’s office representatives in the Council is also questionable. Taking into account that they represent prosecution in court and have authority to launch a disciplinary action against judges, the conflict of interests and partiality of these representatives becomes evident.

That’s why the change in the procedure of this body formation or elimination of operative control over the judiciary became one of the major requirements formulated by the Council of Europe Venice Commission.

The functions of heads of courts remained practically unchanged, which is another instrument of influencing judges. Although they no longer have the authority to allocate cases to judges, they exercise their influence by means of other levers (establishing the vacation period, distributing bonuses, career advancement etc.)

The judicial reform failed to provide the instruments ensuring financial independence of the judiciary. Despite the fact that State court administration was transferred under control of judicial branch and courts began monitoring the use of funds, they never managed to get the guarantees of appropriate funding.

The courts funding has substantially increased over the past 5 years; nevertheless, it still meets only about 50 % of needs. And even available funds are not allocated regularly – often the funding arrives at the end of the year, thus making it impossible to use it for needed renovations or construction.

The judicial reform postponed the issues of better funding for courts and judges for the unforeseeable future. For example, when budget was adopted in December 2010, the introduction of certain budget lines concerning courts funding was once again postponed for one year.

 

3. Decisions of the “Fifth Chamber” of the High Administrative Court as a barometer of judicial reform success 15

In my opinion, the practice of so-called “Fifth Chamber” of the High Administrative Court, set up under the law “On Amending certain legislative acts of Ukraine in relation to the prevention of abuse of the right to appeal” of May 13, 2010, for consideration law-suits against the President, the Parliament, High Council of Justice, and, eventually, against the High Judicial Qualifications Commission, is one of the most suggestive indicators of the judicial reform “success”. Probably, the authors of the idea assumed that it will make the control over most important decision-making much easier.

The decisions of the Chamber are very important for two reasons.

First, they demonstrate the rate of readiness to safeguard the people’s rights against the violations, committed by power bodies, and especially, their higher echelons. In other words, the analysis of the High Administrative Court decisions can provide evidence as to whether it is a real instrument for defending people’s rights against arbitrariness of power, or, the other way round – an instrument to safeguard arbitrariness against the “common mortals” claims.

Second, some of the High Administrative Court decisions reveal the real motives of the High Council of Justice, hardened in its omnipotent competences. Somehow it is afraid of making its decisions public and does not publish them on its site in full scope. Under the reform, the High Council of Justice acquired serious levers for influencing the judges’ corps, in particular in the matters of judges’ dismissal. In fact, it became the centre of personnel-related decisions. That’s why the quality of these decisions and level of their politicization are crucial in assessing the rate of judges’ independence.

Interesting figures

According to the data from the Unified State Registry of Court Decisions (hereinafter – Registry), within 5 months of its operation the fifth chamber of the High Administrative Court16, passed disposition decisions on 15 law-suits against the President, 19 – against the Parliament and 12 – against the High Council of Justice. Only one suit against the President was satisfied fully or partially, namely, the suit concerning the illegality of President Kuchma’s decree of 2002 on a judge’s dismissal, 4 suits against the Parliament (all filed by former judges) and 4 suits against the High Council of Justice (only one of those, concerning neglect of a petition, was not filed by a judge. Probably, the real statistics is somewhat different, as some of the decisions, in defiance of the provisions of the law “On accessibility of court decisions”, might not have been entered into the Registry.

Figures look good enough – about 10 % of claims are satisfied, fully or partially, despite political pressure, implemented even indirectly. However, the fact that all, but one, complaints were filed by former judges is telltale in itself.

So far, only the current President is blameless as far as the courts go. However, the impression lingers that this “blamelessness” is a result of “diligence” of the High Administrative Court and not of either the President himself or his administration. Here are some examples of judicial activity leading to such conclusion.

 

Immunity from compensatory damages

Administrative Proceedings Code (article 21) guarantees the right to appeal the illegality of any acts or actions of authorities, alongside with demanding compensatory damages for the harm done by them.

However, the High Administrative Court exempted certain entities from the damages: “Taking into account that article 171-1 of Administrative Proceedings Code of Ukraine establishes special procedure for appealing the decisions, actions or inaction of the Parliament of Ukraine, the President of Ukraine or High Council of Justice and does not spell out the right of the claimant to approach the High Administrative Court of Ukraine as primary jurisdiction body demanding the compensatory damages, the court will not admit the claims on compensatory damages”17.

It is natural to assume that the legislator wanted to covertly deprive an individual of the right to demand compensatory damages in administrative claim against the President, the Parliament and two other entities (although the law does not contain direct rules on that). However, the common sense prompts that a specific Code article 171-1 does not deny the possibility of applying the general provisions, when they are not in contradiction with the essence of the dispute. What special merits does the President, the Parliament, the High Council of Justice or the High Judicial Qualification Commission have to grant them the immunity?

 

President is not a state power entity with all respective consequences

There is another High Administrative Court invention, which can be developed ad absurdum. Look at these, seemingly innocent, considerations:

«Under the Constitution of Ukraine, the state power in Ukraine is exercised on the principle of its division into legislative, executive and judicial. The President of Ukraine does not belong to any branch of the state power. The Institute of President is based on the body of norms, spelled out in section 5 of the Constitution of Ukraine, under which the President of Ukraine, defined as the Head of State, represents it, is the guarantor of its national sovereignty, territorial integrity, adherence to the Constitution of Ukraine, human rights and freedoms of the citizens. In view of that, the President of Ukraine enjoys a special legal status”18.

This provision, however, led the court to the conclusion, that the President is not a state power entity, and, therefore, is not covered by Article 10 of the Constitution, which according to the Constitutional Court interpretation makes the use of national language as the official language in the authorities operation, mandatory.

Following, probably, the same logic in resolving other issues, the High Administrative Court arrived at the conclusion, that the President is exempt from the duty to consider individual or corporate claims and to provide well-grounded response within the time limits, stipulated by the law (Article 40 of the Constitution). Looks like these functions are beyond the presidential competences and belong among the functions of Presidential Administration.19.

Thus, a journalist was accredited to attend an event, where the President was present. However, he was denied the entrance to the event. The journalist appealed to President against the Presidential Administration, but, in defiance of the law, the response was given by the body appealed against. Next, the journalist submitted a claim on the President’s inaction to the High Administrative Court, which did not allow the appeal, referring to the provisions on Presidential Administration, namely, that this latter is in charge of arranging for consideration of the claims, analyzing them and, after that, submitting draft decisions to the President. Nota bene: “arranging for consideration” and “submitting draft decisions to the President”. In fact, when a claim to the President is submitted, relations are established with him and not with his administration. Even the President of the United States does not neglect the responsibility to deal with public claims, and sometimes respond to them personally20.

Unfortunately, the High Administrative Court attitude found its reflection in a number of judgments, so that the President was exempt from liability for failure to consider or delayed consideration of public claims, or for refusal to provide information etc., because, allegedly, these issues were within the terms of reference of his administration.

Admitting the thesis that the President is not a state authority, we can consequently arrive at even more “advanced” conclusions: that the constitutional requirement of exercising authority on the basis, in the mode and procedure, defined by the Constitution (article 19), does not apply to the President or that decisions, actions or inaction of the President cannot be appealed in court under Article 55 of the Constitution.

 

Invalid acts beyond judicial control

The situation can arise, when a person’s rights are violated by a certain normative act, which eventually becomes invalid. While the violation terminated, the person still has been entitled to compensation of damages, caused by the act. However, the damages can be recompensed only after the illegality of the act and the damages incurred are proven. That’s why the administrative courts usually do not consider invalidating or nullifying of an act as obstacles to decide on its illegality.

Meanwhile, the High Administrative Court took an exotic stand, when dealing with a claim against the President:

“The High Administrative Court of Ukraine jurisdiction, under p. 2, article 171-1 and p. 4 article 18 of the Administrative Proceedings Code of Ukraine, which defines the rules of exclusive subject-matter jurisdiction, covers normative/legal acts in force. The appealed Presidential Decree…which lost its validity…cannot be the object of judicial control”21.

The Constitutional Court in its decision no. 15-rp/2001 of November 14, 2001, concerning a residence registration case, ventured to take the same stand: “The Constitutional Court jurisdiction covers normative/legal acts in force”. This statement, however, was prompted by article 152 of the Constitution: “Laws and other legal acts or their provisions, which are recognized as unconstitutional, lose validity since the date of the Constitutional Court’s decision on their unconstitutionality”. Hence, logical deduction, that only an act, which was in force at the time of legal investigation, can lose its validity.

However, the Code articles, quoted by the High Administrative Court, as well as other legal provisions do not give grounds to contend that the administrative courts’ jurisdiction covers only valid acts. The High Administrative Court attitude creates a very dangerous precedent for the future, depriving a person of a possibility to defend his/her rights, violated by illegal acts, despite the fact that the acts had lost their validity.

 

Double standards?

As far as the claims against the Parliament go, only few judges dismissed through undue procedure, were lucky enough to win their cases. They won mainly due to the fact that at the time of hearing the judge was absent undergoing medical treatment, so “an important procedural guarantee as to the judge’s right to be present at the Verkhovna Rada of Ukraine plenary meeting and to present her position was not observed”. 22

In another case, however, when a judge from Odessa was notified about the specialized committee meeting a day before the event (instead of three days ahead, as required by the law), and about the plenary meeting – on the same day, the High Administrative Court did not classify it as violation of the judge’s right to be heard in court before his/her dismissal. 23

Another interesting situation arose at the time of local elections. According to the Constitutional Court interpretation, the deputies to village, settlement, city or oblast’ councils and the heads of the said councils, elected at regular and off-year elections, will be in office for respectively five and four years. That’s why there were no local elections in Kiev in 2010. In some other areas situation was the same, so the mayors and the deputies of local councils, elected at off-year elections a couple of years ago, submitted a claim on illegality of the Verkhovna Rada Decree on local elections in the part concerning their specific localities.

The High Administrative Court, offering various interpretations of its motives and totally ignoring the Constitutional Court decisions (it was quoted, but not interpreted in its motivation), rejected these claims, on the grounds that, purportedly, “the scheduling of regular elections does not violate rights or interests of the claimant, as he is not denied the possibility to participate in them as a candidate”24. The court ruling made these elections possible, despite the fact that the term of office for local councils and mayors, elected at off-year elections, had not expired yet.

 

The appealed decision is illegal, but claim is completely denied

The High Administrative Court is very cautious in its dealings with the High Council of Justice. No wonder – one step aside, and the motion on a High Court judge’s dismissal will be considered by the Parliament. For the sake of justice, we should mention that some claims to the High Council of Justice were satisfied, although it did not always end by the reinstatement of a judge in his/her office. For example, a claim concerning the dismissal of the Supreme Court judge O.Volkov, was classified as illegal, while the motion on the judge’s dismissal remained unchanged.

The High Administrative Court also dismissed the majority of charges brought by the High Council of Justice against the former chief justice of the Kiev Circuit Administrative Court O.Bachun, on the grounds that the High Council of Justice used the retroactivity of the law25. At the same time, the High Council of Justice decision was not judged as illegal even in this part – the claim was denied completely. The breach of oath was proven only in two instances. However, the High Administrative Court’s motivation, which can be found in a number of its decisions (nos. 11572542, 11572268) is not convincing enough: the judge is charged with allegation that “the rulings on interim measures in fact satisfied the claimant’s requirements without judging the merits of the case”. However, any interim measure is a temporary protection measure, before the case per se is considered. Requirement to cancel an authority’s decision can be secured by provisional suspending of decision in issue. So, the interim measure in many cases is a temporary solution to satisfy the plaintiff’s claim before the case is resolved.

The High Council of Justice decisions show that often it resorts to assessment of courts’ rulings, even if these latter where not revoked by superior courts. The tendency of removing judges for passing exonerating verdicts or too mild penalties can also be traced in the High Council of Justice decisions (see, e.g. the High Administrative Court resolutions nos. 11659732, 11942386). No wonder, then, that the rate of acquittals in Ukraine for many years has not exceeded 0.5% of all rulings. This rate is even lower than it used to be under the soviet regime! This interference into the judges’ activities caused serious concern among the members of Venice Commission evaluating the new Law “On Judicial System and Status of Judges”.

Unfortunately, the High Administrative Court resolution, classifying the decision on dismissal of Kiev Circuit Administrative Court judge M. Kyshynsky as illegal, was not found in the Registry. It is also unusual that immediately after his reinstatement in office the President transferred him to Ivano-Frankivsk Circuit Administrative Court. By the way, the return of the High Administrative Court fifth chamber judge R.Khanova to Donetsk Administrative Court of Appeals came also as a surprise. Such rotations cannot take place without a written request from a judge, but what would force a judge to write it, remains a mystery.

 

Safeguarding power or individual interests?

The power, vested in the President and the Parliament could not but yield to temptation of using reforms as mechanism to exert further pressure on judges. The reform of this year brought into being potent levers of political pressure. The very availability of these levers, if not their direct use, forces the judges to become their own censors and act against their conscience.

The analysis of court rulings shows a persistent tendency of inventing artificial obstacles, which would prevent to satisfy the plaintiffs’ appeals to the highest authorities, both current, and the ones which would be filed in the future.

The High Administrative Court, however, gives the removed judges a chance to win their case. It is most laudable. It proves, although not very convincingly, that certain judicial control over the highest authorities’ powers, which can be used a means of pressure on judges, is still in place. It is desirable, though, that not only judges, but average citizens as well would have access to courts in their disputes with the President and the Parliament. It is especially important in view of the fact that the main goal of administrative justice is safeguarding rights and interests of an individual against arbitrariness of power, and not vice versa.

 

4. Access to courts

The principle of free access to justice envisages, among other provisions, the judges’ duty not to deny consideration of cases of relevant jurisdiction, convenient (accessible) location of courts, sufficient number of courts and judges and a lot of other factors, which allow the citizen to approach a court without excessive hindrances.

Defining courts’ jurisdiction is still a serious problem. A lot of jurisdiction-related disputes arise, in particular, between administrative, commercial and civil courts. For example, disputes arise around the appeals against decisions, made by penitentiary institutions, National Expert Board for Protection of Public Morality and many other bodies of authority, when administrative courts for unclear reasons refuse to recognize them as agencies holding state power.

Physical accessibility of circuit administrative courts also remains a problem. They administer justice for several oblast’s and are located too far from many populated areas.

Judiciary reform brought to life two more problems concerning courts’ accessibility:

  1. Shortening in limitation of action

The general limitation of action in administrative process has been reduced from one year to 6 months, with broadened use of a special 1-month term. Thus, one-month period of time is established for appealing the decision of the subject of authority, which can become the basis for condemnation money claim. This applies, for example, to all cases concerning social benefits etc. Obviously, this is a very short term to file a petition with court, taking into account the need for the fact-finding.

At the same time no transitory period was allowed, so that the courts started to apply the shortened limitation period immediately starting July 27.

2) Impossibility to appeal local courts’ decisions in certain cases concerning administrative offences

The new version of article 171-2 of the Administrative Code of Ukraine, adopted within the frame of judiciary reform, reads as follows: “Ruling of the local court of general jurisdiction as an administrative court in cases concerning decisions, actions or inaction of authority on bringing [him] to administrative accountability is final, with no right to appeal”. It means that if a body of power at its own discretion imposes a fine, the ruling of the local court in the matter is final. Obviously, if a case concerns an administrative offence, considered criminal under Article 6 of the European Convention on human rights, denial of appeal will be interpreted as violation of the right to appeal and access to court in the broad sense of this concept.

 

5. Right to legal assistance and right to defence

Numerous problems related to the right to defence are still waiting to be resolved. They are caused, on the one hand, by an obsolete procedural legislation, and by virtual non-existence of pro bono legal services system, on the other.

The European Court of Human Rights pays more and more attention to this issue. Alongside with decisions of the European Court (see below, part 10 of this section), which established some violations of the right to defence, the cases, transferred to the Ukrainian Government for communication, confirm the seriousness of the problem.

Here are some typical examples of right to defence violations.

 

Manipulating charge to deny the right to mandatory defence

Balystky v. Ukraine, application no. 12793/03. On May 15, 1998 the applicant was charged with homicide (Article 94, Criminal Code) and questioned as a defendant without attorney present. The case was transferred to the prosecutor’s office in Kharkiv. On July 27, 1998, several days before the end of pre-trial investigation, the defendant was charged of committing a aggravating murder under pp. «а» and «е», Article 93, Criminal Code, and also with robbery, under part 3, article 142, Criminal Code.

Bortnik v. Ukraine, application no. 39582/0426. The applicant was detained on October 1, 2002, on suspicion of causing serious body injuries, which led to the death of the victim. He was interrogated on suspicion of committing this crime without attorney present. He stated several times, that he did not need legal assistance. On November 13, 2002 the psychiatric expertise established that he suffered from chronic alcoholism. The attorney was designated for him only on January 28, 2003, in the course of trial. After the case was remitted for additional investigation, the crime was reclassified as premeditated murder, for which he was sentenced to 13 years in prison.

 

Inaccessibility of defence attorneys at the beginning of investigation

Bondarenko v. Ukraine, application no. 27892/05. The applicant was convicted for murder. On September 6, 2002 he was detained on murder suspicion. The applicant contained that he was tortured, and thus forced to confess. He was also coerced into signing a waiver of defence. Several days later he signed the waiver again in exchange for the promise to see his parents.

He saw his parents only on September 19, 2002. Soon parents found an attorney. However, on September, 23, when the attorney requested a meeting with her client, investigator did not allow it, referring to the waiver of defence. The investigator promised to find out, whether the defendant had a change of mind, but denied the attorney the right to be present at the meeting. The next day investigator advised the attorney that the defendant rejected her assistance again. Only on October 28, 2002 the applicant was for the first time questioned with his attorney present. The court brought up a question, whether the fact of absence of attorney at the preliminary interrogation was in line with article 6 § 3(с) of the Convention.

Bandaletov v. Ukraine, application no. 23180/06. The applicant confessed in having committed murder of the victims, although he disagreed with the motives of murder, under which the crime was classified. Eventually he was sentences to life term in prison. The applicant was of the opinion that the court based its verdict on the motives he gave in his confession, while the attorney was not present (the applicant did not have one at the beginning of the investigation) and also disregarded the fact of aggressive and provocative behaviour of the victims.

Zadorozhny v. Ukraine, application no. 37949/05. On the evening of July 18, 2005 militia arrested the applicant on suspicion of murder and robbery. The applicant testified that he had been beaten by militiamen, who wanted to break him and make him plead guilty of the felony. His requests to provide a defence attorney were ignored. At night he wrote a confession.

The next day an attorney was appointed. With the attorney present the applicant once again confessed, and the same day the investigator reconstructed the events of the crime with attorney present. At the time of arraignment (July 22, 2005) the applicant confessed once more. At the court hearing, however, he pled not guilty and claimed that his confession was obtained through torture. He was sentenced to 15 years in prison.

The European Court brought up the issue of the applicant’s right to defence at the primary questioning, when he confessed.

Nechyporuk and Yonkalo v. Ukraine, application no. 42310/04. The applicant was sentenced to 15 years in prison on murder conviction. He stated that no attorney represented him between May 20 and 24, while he stayed in militia custody for an administrative offence. The investigator provided an attorney on unknown day. On May 24, 2004 the applicant’s parents signed a contract with a private attorney so that he would represent their son during the pre-trial investigation and trial. On May 25, 2004 the aforementioned attorney was allowed by the investigator to meet with the applicant in Khmelnitsky temporary detention centre, where the applicant was held in custody. However, on June 2, 2004 the attorney was denied the visit on the grounds that the permit was not properly prepared. There have been other instances when the attorney was banned from participating in the investigation.

The following examples describe similar situations, when at the beginning of the investigation, the defendants were denied the right to use legal assistance:

Pascal v. Ukraine, application no. 24652/04 and Тodorov v. Ukraine, application no. 16717/05. The applicants were sentenced to 14.5 years and 7 years in prison respectively.

Tarasov v. Ukraine, application no. 17416/03. The applicant was sentenced to 5 years in prison.

Panasyuk v. Ukraine, application no. 19906/04. The applicant was sentenced to life imprisonment.

Karpyuk and Lyakhovich v. Ukraine, application no. 30582/04, Мazur and others v. Ukraine, application no. 32152/04, Zaychenko v. Ukraine, application no. 7188/02. In these three cases the applicants were sentences to various terms of imprisonment. The cases were filed in connection to the applicant’ participation in a protest action “Ukraine without Kuchma”, held at T. Shevchenko monument on March 9, 2001.

Dzhulay v. Ukraine, application no. 24439/06. The applicant was sentenced to 9 years in prison.

Yerokhina v. Ukraine, application no. 12167/04. The applicant was sentenced to 10 years in prison for murder.

 

Absence of legal defence and right to public attorney

Ireneusz Mojszak v. Ukraine, application no. 38071/06. The applicant, a Polish citizen, was detained by the Ukrainian customs officials while crossing the border. His request to provide interpreter and attorney was ignored. A protocol was compiled, and, later submitted to the court. In the court, the applicant was served the documents in Ukrainian only. On his return to Poland the applicant had them translated and found out that he was charged with smuggling, and, consequently, that his car and cigarettes which he brought to Ukraine, had been confiscated.

Przhevalskyy v. Ukraine, application no. 12203/04. The applicant was arrested on suspicion of several robberies. He claimed that he had pled guilty under duress. No attorney represented him in the course of pre-trial investigation. That’s why the verdict was nullified by the court of appeals and the case was remitted for additional investigation to rectify the violation committed with regards to the applicant’s right to defence. The court ruled that the interests of justice require legal defence, as the defendant suffered from mental disease. Eventually the applicant was sentenced up to 5 years in prison. The court brought up a question, whether the fact of absence of attorney at the pre-trial investigation was in line with article 6 § 3(с) of the Convention.

Vasylenko v. Ukraine, application no. 36136/05. On January 15, 2000 the applicant was arrested on suspicion of fraud. Between January 18, 2000 and November 8, 2001 he was in custody; after that he was set free on bail. On August 2, 2002 the applicant filed a petition requesting a defence attorney. The petition was ignored, and, according to the applicant, he had no representation for the whole duration of pre-trial investigation.

The court brought up a question, whether the interests of justice did not require an attorney’s representation.

 

Right to choose an attorney

Zagorodniy v. Ukraine, application no. 27004/06. The applicant was charged with a traffic violation. He invited a legal expert with appropriate qualifications to act as his defence lawyer. The lawyer represented him during pre-trial investigation. The trial court, however, denied him the right to act as defence lawyer, as he was not a member of the Bar. Moreover, the court remitted the case for additional investigation due to the violation of the applicant’s right to defence.

The applicant in vain appealed the court’s decision, requesting his lawyer’s participation in the case. At the next preliminary hearing it was the applicant who requested the case to be returned for additional investigation, claiming that his right to defence had been violated by appointing a defence attorney, whom he did not choose, instead of the one he did. He further claimed that the appointed attorney did not act on his behalf, and that he had seen him only once, at the time of the assignment. The motion was rejected.

Later the trial court allowed the applicant’s rejection of an appointed attorney, and assigned him another defence attorney. Eventually the applicant rejected this attorney as well, and requested to have his spouse assigned as his attorney. The court did not allow his rejection, but assigned his spouse as his defence attorney. Later the applicant rejected assistance from assigned attorney, claiming that both assigned him attorneys did not defend him properly. He stated, however, that he was in need of legal assistance. His rejection was denied by the court. Finally, the applicant was found guilty.

The court brought up a question for the parties: could the applicant defend himself with the help of his chosen defence lawyer, and was the removal of this lawyer done in line with the national legislation?

 

Absence of defence attorneys at the Supreme Court hearing

Iglin v. Ukraine, application no. 39908/05 and Dovzhenko v. Ukraine, application no. 36650/03. In both cases the applicants were sentenced to life imprisonment. The appeal was considered by the Supreme Court while the convict was present, but his attorney was not.

 

Promotion of right to legal aid in Ukraine

In view of the European Court of Human Rights’ judgments, that revealed a systemic problem, i.e. violation of right to defence in criminal proceedings, and also in anticipating the decisions on the cases submitted to the Government for communication (see above), the promotion of right to defence remains first priority at the national level.

The draft Law “On Free Legal Aid” was passed in the first Parliamentary hearing. It has a lot of faults, identified by the Council of Europe experts.27 The Parliament, however, seems to take no heed of international and Ukrainian experts’ opinion.

On September 30, 2009 the Constitutional Court of Ukraine passed an important decision on constitutional motion, submitted by Ihor Holovan’.28 This decision put every citizen’s right to legal assistance into the new context, namely, whether this right, guaranteed by article 59 of the Constitution, is applicable in all situations when an individual needs legal assistance, or is restricted by a special status of an individual.

The Constitutional Court ruled as follows:

«1. The provisions of part one, article 59 of the Constitution of Ukraine, i.e. “each individual has a right to legal assistance” shall be interpreted as a state-guaranteed opportunity for each person, irrespective of his/her legal relations with state bodies, local authorities, public associations, legal entities or physical persons, to obtain, free and without illegitimate restrictions, legal assistance in the scope and ways he/she needs.

2. The provisions of part two, article 59 of the Constitution of Ukraine “Bar in Ukraine exists… to provide legal assistance in the proceedings of the court and other official bodies”, in the scope of constitutional motion, shall be interpreted as a right of a person to have, during interrogation as a witness at inquiry or investigation body, or interviewing in his/her legal relationship with these and other state bodies, legal (juridical) assistance by person from the Bar, chosen by an individual in question that does not preclude him/her from using another person’s assistance, unless otherwise specified by Ukrainian Law.”

Justifying its decision, the Constitutional Court made reference to the fact that “each person, especially a witness interrogated at inquiry or investigation bodies, shall be guaranteed the right to effective legal assistance to protect him/her against possible violations of his/her right to refrain from testifying against himself/herself, the family members or close relatives, which can be used in criminal proceedings to prove the guilt of the aforementioned persons”.

The Constitutional Court also specified that “choice of the form and subject of this assistance depends on the desire of the person wishing to get the assistance”.

Kharkiv human rights group submitted to the Constitutional Court a petition, containing specific proposals, 29 namely, “to define integral characteristic of legal assistance, which under no circumstances or legislative regulations of this rights, can be nullified or limited. The most important among these characteristics are the following:

  1. Right to direct communication with an attorney, including the possibility to freely meet with attorney for legal counselling, when a person, in his/her opinion, needs it;
  2. Right to confidential communication with an attorney, including the right to communicate out of the reach of other persons’ hearing, as well as confidentiality of all communication means and their material manifestations (letters, written advise, e-mails etc);

  3. Right to attorney’s presence in any events attended by the person;

  4. Right for attorney to act on behalf of a person, to whom the legal assistance is given in any procedures aimed at protecting the person’s rights”.

Unfortunately, the Constitutional Court, having, possibly, serious reasons, failed to spell out minimum requirements towards legal assistance, without which it cannot be classified as legal assistance stricto sensu.

The Verkhovna Rada availed itself of the situation, introducing the changes to the Criminal Proceedings Code. Allegedly with the aim to implement the Constitutional Court’s decision, they, in fact, distorted both the essence of the decision and the very concept of legal assistance.30

Contrary to the Constitutional Court‘s decision, the lawmaker introduces restrictions for legal aid in the form of investigator’s “permission”.31

Next, the lawmaker makes the efficient legal aid virtually impossible. Let’s have a look, for example, at the provision, under which the witness’s defence attorney

“has the right to…provide consultations for the witness with investigator present, if the material evidence in the case can be used for criminal prosecution of the witness or members of his/her family and close relatives”.

Here the fundamental principle of the legal aid, i.e. its confidentiality, is flagrantly violated. Besides, either deliberately, or due to inept language, the assumption is made that if the investigator does not find that “material evidence can be used for criminal prosecution”, the witness is not even entitled to such consultation.

Therefore, the lawmaker deprived the Constitutional Court’s decision, met with applause by the legal community, of any meaning, and, actually, refused to comply with it, at least, within the context of the criminal proceedings.

Besides, the witness’s right to an attorney is not protected by criminal liability, the same way as defendant’s or convict’s right. It means that obstructing attorney’s participation in witness’s interrogation is not classified as offence. 32

 

6. Reasonable time of judicial proceedings

The judicial red-tape and non-compliance with reasonable time in legal proceedings remains a serious problem. Among other consequences, it affects the fate of tens of thousands detainees, for decades waiting in the overcrowded remand prisons for the completion of the legal procedures.

The judges’ excessive workload is one of the reasons contributing to their failure to meet the required time limits. In 2009, however, this load was somewhat reduced for the administrative judges.

In 2009 the trial courts of general jurisdiction considered 5.9 million cases, petitions, claims and motions, which is 40.7 % less than in 2008. First of all, this reduction is due to the fact, that under the Law no. 586-VI of September, 24, 2008 “On amending some laws of Ukraine regulating legal relations aimed at enhancing road traffic safety” the number of administrative law-suits decreased by 5 million.

The other reason is the persistent practice of remitting cases for additional investigation, or multiple revisions of a case in local courts, as well as traditional courts’ red-tape, caused by laxity and incompetence of the judges.

Effectiveness of cases’ consideration by the general courts 33  

 

Indicators

2007

2008

2009

 

 

Criminal cases

Number of ruled cases, total

186 244

182 100

182 498

 

Cases, assigned for consideration with violation of time limits stipulated by article 241, Criminal Proceedings Code of Ukraine

1 425

1 202

1 620

 

Proportion to the ruled cases, %

0, 77

0, 66

0, 89

 

Cases, assigned for consideration with violation of time limits stipulated by article 256, Criminal Proceedings Code of Ukraine

3 867

3 609

4 133

 

Proportion to the ruled cases, %

2, 08

1, 98

2, 26

 

Pending cases by the end of the reporting period

40 348

44 891

49 298

 

Proportion to the ruled cases, %

17, 81

19, 78

21, 27

 

Including the cases, not ruled within the term of over 6 months (dropped law-suits not included)

5 363

7 642

9 100

 

Proportion to the pending cases, minus suspended cases, %

18, 60

22, 67

23, 16

 

Number of ruled cases total

126 035

148 972

1 010 974

 

Including cases investigated with violation of time limits, stipulated by Administrative Code of Ukraine

14 439

13 912

115 348

 

Proportion to the ruled cases, %

11, 46

9, 34

11, 41

 

Pending cases by the end of the reporting period

19 970

65 069

159 281

 

Proportion to the cases under consideration, %

13, 68

30, 40

13, 61

 

Pending cases (dropped law-suits not included)

18 557

63 844

157 556

 

Proportion to the cases under consideration, %

12, 71

29, 83

13, 46

 

Cases not resolved within the term of over 2 months (dropped law-suits not included)

5 299

10 000

34 048

 

 

Proportion to the pending cases ( suspended cases not taken into account) %

28, 56

15, 66

21, 61

 

 

Number of ruled cases, total

1 240 758

1 257 092

1 153 857

 

 

Legal investigation of cases completed later than stipulated by the Civil Code of Ukraine

123 484

138 696

157 296

 

 

Proportion to the ruled cases, %

9, 95

11, 03

13, 63

 

 

Pending cases by the end of the reporting period

207 892

252 686

321 743

 

 

Proportion to the cases under consideration, %

14, 35

16, 74

21, 80

 

 

Pending cases (dropped law-suits not included)

183 805

230 882

300 687

 

 

Proportion to the cases under consideration, %

12, 69

15, 29

20, 38

 

Cases not resolved within the term of over 3 months (dropped law-suits not included)

40 846

60 184

78 129

 

Proportion to the cases under consideration, minus dropped law-suits %

22, 22

26, 07

25, 98

 

7. Presumption of innocence

The rights to not incriminate oneself is a component of the presumption of innocence. However, the instances, when a person is first questioned as a witness, and, then charged with offence on the basis of his/her testimony, are still common.

The following proceedings can be also classified as violations of the presumption of innocence:

  1. Remitting criminal cases for additional investigation;

  2. Opening the case against particular person and not concerning the criminal event.

 

The number of criminal cases, remitted by trial courts34

Indicator

2007

2008

2009

Number of solved criminal cases (with cases remitted to prosecutors under article 232 Criminal Proceedings Code of Ukraine, and without cases filed on victim’s motion)

185 773

181 415

86 094

Cases, remitted by trial courts for additional investigation (articles 246, 281, Criminal Proceedings Code of Ukraine) (without cases filed on victim’s motion)

6 858

5 751

2 245

Proportion to the criminal cases of public prosecution solved, %

3, 69

3, 17

2, 61

Number of cases remitted to prosecutors under article 2491 Criminal Proceedings Code of Ukraine,

1 444

1 250

462

Proportion to the criminal cases of public prosecution solved, %

0, 78

0, 69

0, 54

Revoked from criminal courts by prosecutors under article 232 Criminal Proceedings Code of Ukraine,

2 873

1 826

730

Proportion to the criminal cases of public prosecution solved, %

1, 55

1, 01

0, 85

Number of cases remitted by courts and revoked by prosecutors (without cases filed on victim’s motion)

11 175

8 827

3 437

Proportion to the criminal cases of public prosecution solved, %

6, 02

4, 87

3, 99

Number of persons, in regards to whom the rulings on case remitted for additional investigation, were cancelled by appeal

2 029

1 959

1 801

Decisions concerning the violation of legislation in the process of investigation or pre-judicial inquiry

2 348

2 452

1 000

 

Extremely low number of acquittals testifies to the fact, that presumption of innocence is not properly addressed. A very low percentage of acquittals has been characteristic of the judiciary system since soviet times, may be, due to persistent soviet traditions of inquisition-like criminal process, lack of adversary features, especially, at pre-trial stage, the mechanism of additional investigation (in view of insufficient material evidence courts often remand the case for “additional investigation”, and there the case is closed without acquittal). Judges are still blamed for passing acquittals; sometimes such verdicts trigger the prosecutor’s investigation.

Meanwhile, the number of acquittals is decreasing on yearly basis, remaining at the rate of no more than 0.5% of total number of criminal verdicts over the last five years.

Number of acquittals35

 

Year

Number of persons, acquitted by local courts

Number of persons, with regards to whom a new verdict (instead of earlier unjustified acquittal) was passed by appeal courts

2008

672

12

2008

539

8

2009

579

13

Proportion of the acquitted and convicted persons 36

 

 

Convicted, (thousand/%)

Acquitted,

(thousand/%)

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 %

2008

167, 7 / 99, 7 %

0, 5 / 0, 3 %

2009

162, 6 / 99, 6 %

0, 6 / 0, 4

In 2009 the number of acquittals increased to 579, 13 of which were repealed by appellation court with the new verdict, while 52 – nullified by case remitting for additional investigation.
 

8. Some guarantees of fair criminal process

8.1. The right of arraignment and right to sufficient time and opportunity to prepare defence

On October 21, 2010 the European Court of Human Rights passed decision on Kornev and Karpenko v. Ukraine case, contending that Ms. Karpenko had no way of preparing her defence, as the hearing on administrative offence she was charged with took place one hour after arraignment.

Zhupnik v. Ukraine case (9 December 2010, application no. 20792/05) drew attention to another issue, i.e. re-classification of crime from one Criminal Code clause to another. Till now the prerogative of re-qualifying a crime has been considered an unalienable component of court’s competences. However, the European Convention shed new light on it as far as adherence to the rights stipulated by Article 6 § 3(а) and (b) of the Convention.

The applicant complained that Primorsky court (Odessa) qualified actions committed by him as crime, defined by article 165, Criminal Code of 1960 (abuse of power or office), while formerly he was charged under article 84 of the said Code (embezzlement of public or corporate property by way of appropriation, peculation or abuse of office).

The European Court stated that “the applicant was unaware of the fact that Primorsky court had the authority to re-qualify his actions as punishable under article 165 § 1 of the Criminal Code, which was in force at the time of offence. These developments deprived him of possibility to defend himself in trial court against crime, for which he was ultimately convicted”.

In the aforementioned case no violation of rights was found, but only due to the further Court of Appeal’s proceedings, which resulted in granting the applicant the opportunity to defend himself against new charges.

Article 277 of the Criminal Proceedings Code stipulates more appropriate procedure for changing charges, thus providing better guarantees for the rights spelled out in Article 6 § 3(a) and (b) of the Convention.

Nevertheless, many articles of the Criminal Proceedings Code implicitly provide for the courts’ authority to change the crime classification. For example, article 373 of the said Code grants court of appeals authority to re-qualify a felony and apply the criminal law for less grave offence. Keeping in mind an essential restriction, contained in this article, one should conclude, however, that even re-classification to less grave offence can lead to the violation of defence rights, if new classification entails significant differences in the crime elements.

 

8.2. Right to question witnesses

On November 19, 2009 the European Court passed a decision in the case Oleg Kolesnik v. Ukraine. Kolesnik was convicted for murder and other crimes. The court sustained that “the key witnesses for the prosecution were not examined by the court and the applicant had no opportunity to confront them either at the investigation stage or during the trial”. Meanwhile, these witnesses’ testimony was an important part of material evidence, which led to the applicant’s conviction.

The right to witnesses’ questioning is violated even more often in “drug’ cases. On October 21, 2010 the European Court, in its decision on Kornev and Karpenko v. Ukraine case (see above) considered such situation. The court sustained that the main witness for prosecution was put under the program of witness protection and never made appearance in court. Neither applicant, nor her attorney had an opportunity to set up witness’s cross-examination, while national courts based their rulings on her statements.

 

8.3. Use of provocation in criminal judicial proceedings.

Another important problem, i.e. entrapment, was tackled upon in the case Lyubchenko v. Ukraine (application no. 34640/05), which in March was submitted for communication to the Government of Ukraine, in the context of bribery conviction. An operation against the applicant, which resulted in his arrest, was carried out within the framework of this case. Dzhankoy District Court did not classify the operation results as acceptable evidence and acquitted the applicant. The Appeal Court of the Autonomous Republic of Crimea, however, quashed the acquittal and sentenced the applicant to three years in prison. The European Court raised the issue of entrapment perpetrated by militia officials.

Entrapment is especially popular in cases concerning the drug dealing.

Analysis of relevant law reveals the factors contributing to this violation.

Under p. 5, part 1, article 8 of the Law “On state secret”, information on means, contents, plans, organization, funding, material and technical support, ways, methods and results of the field-investigation activity; on persons who confidentially collaborate or used to collaborate with the bodies, engaged in such activity, can be treated as state secret. Part 2 of the same article stipulates general restrictions as to confidential information – specific data can be classified as state secret with various rates of secrecy, i.e. “ extremely important”, “top secret” and “secret” – only if they fall under the categories, specified in part 1 of the article and if their disclosure is damaging for the interests of Ukraine’s national security.

Under these provisions the Corpus of Data Constituting State Secret should be compiled.37 Under pp. 4.2.2 and 4.4.4 of the Corpus, the results of the field-investigation activity, an investigation operation or a set of the operations are classified as state secret if their disclosure creates a threat for the national interests and security. Obviously, the disclosure of the results of field operations which revealed the facts of drug dealings and sales of, let’s say several grams of narcotic substance, cannot present such a threat, and, respectively, should be added as due protocols of field operation to the case files.

At the same time, the information concerning confidential collaboration of a person with operative divisions, which makes possible the identification of the said person, under p. 4.2.1. of the Corpus, is classified as secret. Naturally, when a field operation is organized to uncover minor drug dealings, the disclosure of information concerning confidential collaboration of a person with operative divisions cannot present a threat for the national interests and security. Therefore, this information should not be treated as state secret or classified as such.

The operative investigation divisions, under p. 15 part 1, article 8 of the law “On operative investigation activity”, are authorized to establish confidential collaboration with individuals only on voluntary basis. The controlled purchase of goods, merchandise or substances, stipulated by p. 2 part 1, article 8 of this law, is carried out in accordance with the procedure, established by the “Instruction on controlled purchase and controlled supply of goods, articles and substances, including those banned from circulation, from physical and legal entities, irrespective of form of property”.38 Under the Instruction’s provision, the written agreement from the aforementioned entities is required for the purchase of the goods banned from circulation. The Instruction also reads that “the documents disguising a person” can be used “if need arises”, and in practical operation fabricated personal data are used.

In the course of further investigation, which included the controlled purchase, the results of which could be used as material evidence in the case, according to the provisions of the law “On ensuring safety of the individuals participating in criminal proceedings” and article 52-1 of the Criminal Proceedings Code, the means of protection are used with regards to this individual. Under p.1, article 52-1 of the Criminal Proceedings Code and p. 1 article 20 of the aforementioned law, these persons are entitled to protection only if a real threat to their life, health, dwelling or property is established. In p. 2, article 20 of the aforementioned law the following reasons for protection are established:

а) Petition from the participant to criminal proceedings, his/her family member or close relative;

б) Motion from the chief executive of the respective state body;

в) Operational or other information concerning existing threat to life, health, dwelling or property of the aforementioned persons.

In the majority of cases protective actions are taken on the motion from the respective officials and with regards to the individuals who participate in the controlled purchase as “buyers”.

Most commonly, the seller in the controlled purchase knows the “buyer”, i.e. there are no reasons to “hide” the buyer from the seller, with regards to whose criminal activity the controlled purchase is organized, if there is no threat life, health, dwelling or property of the former. Therefore, the buyer, in fact, is disguised not from the defendant or his defence, but from the court, which fact, naturally, creates serious obstacles for the court in implementing the principle of comprehensive and complete examination of criminal case circumstances in the courts’ proceedings.

After protective action for the benefit of the “drug buyer” is taken, the defence has no way of directly questioning him. In the course of pre-trial investigation the confrontation of the suspect/defendant with this individual are not set up.

Under the best scenario, the defence acquires the right to question the witness with the help of technical equipment from other premises, including outside of the court, on the prosecutor’s motion, or court’s (judge’s) discretion, in accordance with p. 6, article 303, the Criminal Proceedings Code. Usually, the operatives who participated in the controlled purchase are present alongside with the witness at the questioning, and it is impossible to restrict their influence on witness, i.e. prompts to witness’s answers.

In practical operation when there is technical possibility of questioning from another premises, the courts are bound to use the provisions of p. 2, article 292 of the Criminal Proceedings Code, according to which the witness under protective action is exempt from court appearance, if there is written confirmation of his/her earlier testimony. Consequently, neither prosecutor, nor judge can see the witness, while his written deposition is taken, once again, by the operatives.

After that the provision of p. 3 part 1, article 306 of the Criminal Proceedings Code is used, and court examines the statement, given by the witness in the course of inquiry and pre-trial investigation.

Practically, the majority of cases, including the controlled purchase of banned goods, is not about the drug dealers’ sales of substantial quantities of drugs, but about limited sales between the drug users themselves. Besides, the “seller” usually has known the “buyer” before the operation was set up.

Therefore, hiding the person who collaborates with operative divisions, results, in fact, not in the protection of the said person, who collaborates with operative divisions (the protective action is usually taken in the form of ensuring confidentiality of personal data), but in making it very difficult, if not impossible, to investigate and check all the circumstances of controlled purchase and respective testimony in court proceedings.

As a result of such arbitrary and groundless use of protective action with regards to “buyers” participating in the controlled purchase, many abuses are perpetrated by the operatives and the rights of the suspects to defence are grossly violated by the breach of their right to submitting evidence, questioning witnesses etc. The use of measures, aimed at codifying the “buyers” in controlled purchases practically makes it impossible to establish the fact of permanent participation of the same persons as “buyers” in multiple purchases; their involvement becomes not voluntarily, but forced by militiamen, thus transforming these individuals into undercover agents and enabling provocations and fabrication of crimes. The “classifying” of crimes is not only contrary to the law “On democratic civil control over military organization and law enforcement bodies of the state”, but also creates an obstacle for obtaining information on unlawful activities of state authorities, local self-governments and their officials, which under p. 5, article 8 of the Law “On state secret” cannot be classified as state secret.

In view of potential abuses in protective action with regards to individuals involved in controlled purchases, the practices of the European Court of Human Rights seem relevant. Thus, in its recent decision on October 21, 2010, on Kornev and Karpenko v. Ukraine case, the court established the violation of Article 6 § 3(d) of the European Convention on Human Rights (right to protection against criminal charges) in a criminal case on drug dealings, when a controlled purchase was used, the main witness for prosecution (“buyer”) was  had been placed under the witness protection programme and never appeared in the national courts. It ruled that her testimony was “were essential for the proceedings in question, given that she was the only person who had directly participated in buying drugs…and could testify that he sold the drugs to her…” The European Court also stated that “the applicant and his lawyer had been given no opportunity to cross-examine this witness at any stage of the proceedings, even as an anonymous witness, and the domestic courts themselves based their conclusions in the case on her written statements given at the pre-trial investigation stage. Moreover, it has not been claimed by the authorities that there was a need to balance the interests of various persons concerned…”

To clearly understand the popularity of these methods one should refer to Kornylenko’s testimony, published on Internet39, where he claims that he had participated in hundreds of so-called “controlled purchases” in Poltava oblast’. Till now an independent investigation has not been carried out by law enforcement entities. The questions concerning legality of operations, raised in Kornylenko’s testimony, so far remain unanswered.

The statistics on number of controlled purchases of drugs and psychedelic substances, carried out in the years 2005-2008 also testifies to the unjustified use of this technique in Poltava oblast’.

 

Administrative/territorial unit

Total number of registered crimes

Total number of controlled purchases

Poltava oblast’

59 968

1 267

Kharkiv oblast’

107 021

1 051

City if Kiev

111 312

1 130

 

It seems strange that in Poltava oblast’, with population, registered crimes’ and drug users’ indicators are much lower than in other administrative and territorial units, shown in the table, the number of controlled purchases carried out by law enforcement subdivisions is much higher.

It is noteworthy, that the Supreme Court in its summary concerning the investigation of cases related to drugs, psychedelic substances, their analogues or precursors tackled the practice of crime provocation and noted that “the use of evidence, obtained by militia operatives through encouraging criminal activity, cannot be justified by public interests. Taking into account this consideration and mandatory nature of the European Court of Human Rights’ requirements to pre-judicial inquiry, it is always necessary to check, whether militia staff or their representatives have not used abetting or organized sales and purchases of narcotic substances”.40

 

8.4. Criminal prosecution of children

In cases, when children are criminally prosecuted in pre-trial investigation, the violations of the legal provisions for additional inquiries with regards to the minor in question (i.e. living conditions, his/her upbringing, circumstances that had adverse effects on his/her personality, means of subsistence, etc), as well as total neglect of children, or their treatment as usual criminals are often registered. The operation of state bodies, investigating cases involving minors, needs dramatic improvement in view of the fact that the main goal of society and state in criminal prosecution of children, who, in their majority, are deprived of parental care, consists not in penalizing them for the committed offence, but in bringing them back to full-fledge social life, rehabilitating and educating them.

 

9. Execution of national courts’ decisions

The decisions passed by national courts are not properly executed.

According to the Ministry of Justice, by December 1, 2009, 7 979 251 executive documents for the total cost of 97 392 913 578 UAH had to be served by the state executive bodies. This is 477 676 documents and 39 809 759 430 UAH more as compared to 2008.

Government executors in 2009 completed 4 429 195 executive documents, which makes up 55.5% of total number of documents to be served, for the sum total of 26 083 154 691 UAH or 26.8%, which is 97 298 documents and 10 346 274 082 UAH more as compared to the similar period of 2008.

In 2009 2 262 923 executive documents were served (28.4%) and 6 871 777 236 UAH (7.1%) recovered, which is 149 719 documents less, but 1 878 827 740 UAH more, than in 2008. The number of remaining documents by the end of reporting period constitutes 3 550 057 with the total cost of 70 999 398 586 UAH, which is 380 650 documents and 29 265 353 710 UAH more as compared to the similar period of 2008.

As of December 1, 2009, 182 216 executive documents (5.1% of the documents remaining by the end of reporting period) still were not served, thus violating the execution time limits. Within the same time period in 2008 781 executive documents were not served on time (10.5%).

This data show that the number of non-executed court decisions is growing on the annual basis. The rate of executed decisions, notwithstanding, has increased to 55 % as compared to the past years, when it constituted about 40%. The difference between the number of completed executive proceedings and actually served decisions is also substantial, with respective ratio approximating 50:50. For example, the proceedings can be terminated due to the lack of state budget funds. It means that in 2009 only 28.4 % out of all executive decisions have been really executed, while 71.6% of all the documents respectively have not been executed.

Over 11 months of 2010 the governmental executors terminated 4 912 071 executive documents, which is even less than in 2009. At that time, 8 814 661 executive documents (more than for the whole 2009) have been waiting for service. The rate of terminated executive proceedings has not changed significantly in 2010 and remains at the level of 55 %. However, the amount of recovered sums showed the tendency towards decrease: in 2006 – 5 742 462 037 UAH, in 2007 – 5 580 330 958 UAH, in 2008 – 6 036 963 509 UAH, in 2009 – 8 341 475 579 UAH, and– 7 342 350 662 UAH over 11 months of 2010.

Therefore, the judiciary reform by no means affected the service of courts’ decisions. On the average, about 70 % of courts’ decisions have not been executed over the recent years. This figure is hidden behind the data on completed executive proceedings, which are very misleading: often the terminated cases are reopened or termination is repealed, or, as shown above, in 50% of the cases the termination does not reflect the decision service, but marks only the formal closure of executive proceedings for various reasons.

In January 2010 a pilot ruling of the European Court of Human Rights on the case Ivanov v. Ukraine came in force. This ruling addressed a systemic problem – mass failure to execute court decisions in which either the state or governmental agencies or institutions are the debtors. The state does not comply with court decisions due to the lack of funds in the state budget. There is no current mechanism to have these decisions executed, so Ukrainians can only appeal to the European Court of Human Rights. No wonder Ukraine loses more and more cases concerning this issue. (About 70% of all decisions are made in relation to this matter).

The pilot decision obliged the state to eliminate the systemic problem within one year by implementing appropriate measures; the state, however, did nothing to comply with this decision.41

 

10.  Compliance with the judgments of the European Court of Human Rights on violation of fair trial rights

In 2008-2010 the European Court of Human Rights passed a number of rulings regarding the violation of the right to fair trial in criminal proceedings, requesting the review of decisions, made by Ukrainian courts ( naturally, if the parties concerned submitted respective motions):

Yaremenko v. Ukraine, 12 June 2008, application no. 32092/02, came in force on 12 September 2008 – conviction based on testimony obtained in violation of right to remain silent and right to defence.

Lutsenko v. Ukraine, 18 December 2008, application no. 30663/04, came in force on 18 March 2009 – conviction based on co-defendant’s testimony obtained in violation of right to remain silent.

Shabelnik vs. Ukraine, 19 February 2009, application no. 16404/03, came in force on 19 May 2009 – conviction based on testimony obtained in violation of right to remain silent and right to defence.

Shagin v. Ukraine, December 10, 2009, application no. 20437/05, came in force on 10 March 2010 – no public hearing.

Oleg Kolesnik v. Ukraine, 19 November 2009, application no. 17551/02, came in force on 19 February 2010 – conviction based on testimony obtained in violation of right to remain silent and right to defence, and in violation of the right to question important witnesses.

Myronenko and Martenko v. Ukraine, 10 December 2009, application no. 4785/02, came in force on March 10, 2010 – conviction by a biased court.

Feldman v. Ukraine, 8 April 2010, applications nos. 76556/01 and 38779/04, came in force on 4 October 2010 – conviction by a biased court.

Gurepka v. Ukraine (№ 2), 8 April 2010, application no. 38789/04, came in force on 8 July 2010 – lack of appeal review of the resolution on administrative liability.

Pelevin v. Ukraine, 20 May 2010, application no. 24402/02, came in force on 20 August 2010 – lack of access to cassation review.

Zhuk v. Ukraine, 21 October 2010, application no. 45783/05, came in force on 21 January 2011 – absence of applicant at the time of the Supreme Court hearing.

Kornev and Karpenko vs. Ukraine, 21 October 2010, application no. № 17444/04, came in force on 21 January 2011 – conviction based on testimony of a witness, whom defendant could not question in court (first applicant), conviction without providing enough time and opportunity to prepare defence (second applicant).

Leonid Lazarenko vs. Ukraine, 28 October 2010, application no. 22313/04, came in force on 21 January 2011 – conviction based on testimony obtained in violation of right to defence.

Borotyuk v. Ukraine, 16 December 2010, application no. 33579/04, have not came in force yet – conviction based on testimony obtained in violation of right to remain silent and right to defence..

These rulings bring to light the systemic problems of Ukrainian justice. Certain comprehensive measures should be taken in order to prevent similar violations in the future.

The examples of two cases (Yaremenko’s and Shabelnik’s) manifest, however, that the Ukrainian justice is not ready to implement the European Court of Human Rights’ judgments.

In Yaremenko’s case, the Supreme Court, having reviewed earlier decisions at extraordinary review, removed the references to two of Yaremenko’s testimonies from the verdict. The European Court of Human Rights maintained that they were decisive in Yaremenko’s conviction. The verdict, nevertheless, remained in force. Trying to nullify the European Court’s ruling, the Supreme Court of Ukraine even exceeded its competences, which, alongside with other violations committed by the Supreme Court, became the grounds for another Yaremenko’s complaint to the European Court of Human Rights42, which currently has been communicated to the Ukrainian Government.

After the first public campaign regarding the actions of the Supreme Court in Yaremenko’s case, the Supreme Court changed its position in Shabelnik’s case. It annulled the cassation resolution of the Supreme Court, which supported Shabelnik’s guilty verdict and submitted the case for new cassation review. The verdict, however, remained unchanged, thus repeating the Yaremenko’s case scenario.

Stanislav Lutsenko’s motion for the extraordinary review was totally ignored by the Supreme Court of Ukraine, as the court did not find grounds for the review. On repeated motion the case was once again assigned to the Supreme Court, but no decision has been passed since March 2010.

Besides, in 2009-2010 the European Court communicated a few similar cases to the Ukrainian Government.

It is safe to argue, that the number of cases, ruled by the European Court, as well as the cases transferred for communication, do not not represent even the tip of the iceberg of violations regarding the right to fair trial. They are nothing, but a small signal flag on its tip. Therefore, the systemic reform of criminal justice, rules and principles of court proceedings, as well as establishing the court practices, which will prevent these violations to occur in the future, are a must.

In view of this, certain changes introduced by the Law of Ukraine “On Judicial System and Status of Judges” as well certain amendments to the Criminal Proceedings Code of Ukraine are rather disconcerting.

The only positive amendment with regards to compliance with the European Court of Human Rights’ rulings is the law provision that stipulates the review of a case if an international court “establishes violation of international obligations…in resolving a case” (article 38, Law of Ukraine “On Judicial System and Status of Judges”).

The same Law, however, narrows the competences of the Supreme Court. According to part 2, article 38 of the law, the Supreme Court of Ukraine:

“1) reviews the cases on the grounds of unequal use of the same norm of material law in similar legal situations by courts of cassation, in order stipulated by the procedural law;

2) reviews the cases, if an international court, whose jurisdiction is recognized by Ukraine, establishes violation of international obligations in resolving a case in court”.43

The language of the Law does not provide for the right of the Supreme Court to interfere with the use of procedural law by Ukrainian courts; it is entitled only to spectate as violations of fair procedure are being committed by them, until an international court institution establishes such violations. If that’s the case, the Supreme Court, deprived of any levers of influence to ensure fair trial, can hardly be called “the highest judicial body within the system of general jurisdiction courts”. In fact, the Supreme Court looks like a purely ornamental body, whose only task is to interpret the decisions of an international body into the language comprehensible for the national judicial system.

Besides, even if an international body establishes the violation of a right, stipulated by an international treaty, the Supreme Court has no authority to institute the proceedings, but has to wait till one of the highest courts recognizes the motion for review admissible.

And even in cases of “unequal use” of law the intervention power remains very limited. It is obvious that the lawmaker meant that the Supreme Court of Ukraine is supposed to monitor the uniformity of the judicial practice. But if this is the case, the lawmaker demonstrates a very limited understanding of “non-uniformity”. The uniformity can be disregarded in many aspects. Alongside with unequal use of the same legal norm in similar legal situations, other violations can also take place, i.e.:

  • The same use of the legal clause in different legal situations;

  • Use of different legal norms in similar legal situations;

  • The use of one legal norm in one case, and non-use of the same norm in another case in similar legal situations;

  • Non-use of a legal norm in relations which call for its use etc.

All the case of “diversity” in judicial practice can hardly be predicted, and it is difficult to establish the only type of “diversity” which requires the Supreme Court’s intervention as opposed to others.

Moreover, the Criminal Proceedings Code no longer contains the provisions, which defined (although not precisely enough) the extraordinary review procedure. The new provisions, in their turn, with lack of implementation procedure, fail to meet the requirements of legal certainty.

 

11. Recommendations

1. Changing the mechanism for setting up the High Council of Justice; in particular, all its members must be elected by the judges’ Congress; this institution can also be disbanded with the transference of its functions to the entities which meet the criteria independently formed body of judicial power.

2. Broadening the Supreme Court of Ukraine competences; in particular, ensuring the opportunity for all the parties in the proceedings to approach it in the case of conflict of competences, unequal use of material or procedural law norms. Granting to the Supreme Court competences of passing its own decisions on cases review, independently of the highest specialized courts.

3. Regarding the right to legal assistance:

  • Implementing the Concept of reforms in the system of free legal aid, approved by Presidential Decree no. 509/2000 of 9 June 2006.44
  • Finalizing the law “On free legal aid”, taking into account the expertise of free legal assistance offices, set up under the Presidential Decree no. 509/2000 of 9 June 2006 and accelerating its passing.
  • Supporting the system of free legal assistance with necessary funding;
  • Harmonizing the law provisions concerning the right to legal assistance with the decision no. 1-23/2009 of 30 September 2009 of the Constitutional Court of Ukraine; in particular, removing all the provisions restricting or complicating the access to the legal assistance.

4. Launching the implementation of criminal justice reform, approved by the Presidential Decree no. 311/2008 of 8 April 200845, specifically, through criminal and procedural law reform and adoption of the new Criminal Proceedings Code of Ukraine46.

5. Improving the procedure for administrative offence cases’ consideration, by ensuring fair trial rights defined in Article 6 of the European Convention on Human Rights.

6. Ensuring the following guarantees of exercising the right to fair trial for the persons convicted of criminal or administrative offences:

  • To exclude from evidence any out-or-court testimony given by a suspect, a defendant or a convict, if they are not confirmed by him/her in an open trial.

  • Broadening the scope of requirements for mandatory legal representation; establishing the presumption of mandatory legal representation in dubious cases.

  • Removing the requirement of mandatory investigator’s permit for the meeting between an attorney and a client and stipulating that a suspect’s, a defendant’s or a convict’s petition is a decisive ground for granting the meeting by a person in whose custody the client is.

  • Destroying any waive of legal assistance, claimed in the absence of an attorney.

  • Ensuring the suspect’s, defendant’s and convict’s right to defence, specifically through banning the court practice of changing the criminal conviction, if a person was not defended in the course of proceedings ( re-qualification of a crime).

  • Providing for procedural provisions which would forbid the use of out-or-court statements in the court proceedings, except in extraordinary cases, and attach them less evidentiary weight than statements given in court.

  • Granting actual opportunity to question witnesses under protection program.

  • Enabling courts to verify the legality and expediency of witness protection measures in line with the right to question witnesses, and to change or remove such measures to ensure the defendant’s rights.

  • Amending the entrapment concept, taking into consideration the practice of the European Court of Human Rights.

7. Checking up legality of “operative purchases” of drugs in oblast’s, where the use of such measure looks most suspicious.

8. Finding out the factual data on a child’s living conditions, i.e. physical existence of a child: availability of dwelling, permanent sleeping place and its quality, availability and quality of food (in case when parents or guardians are absent – availability of means of subsistence) in the process of investigation and pre-judicial inquiry.

9. If in criminal cases involving minors ( non-violent crimes, property thefts) the absence of money to buy food is established in the course of pre-trial investigation, the following steps should be taken:

  • - adding materials proving the child’s circumstances to the case;
  • - demanding that the territorial bodies responsible for children welfare provide without fail all the information concerning the living conditions of these children, so that is can be used as mitigating circumstances in the case, in line with the requirements of article 22 of the Criminal Proceedings Code (i.e thorough, complete and impartial investigation of all the evidence in cases, involving criminal liability of a child deprived of parental care). If such information is not provided, respective complaints on actions (or inaction) of these bodies shall be filed and prosecutor’s office will be informed about such cases;
  • - safeguarding the rights of a child to life and health care, as well as the right to appropriate living conditions, stipulated by a special Law “On childhood protection” ( articles 6 and 8), recommending the courts to investigate all the circumstances of a case in order to establish whether the prerequisite of extreme need (which, under article 39, Criminal Code, is a circumstance which excludes criminal liability, caused by lack of money to buy food, which creates a serious threat for a child’s life and health, was present in the crime, committed by a minor, and, if such condition existed, to drop criminal charges at the absence of corpus delicti in the child’s actions.

10. In compliance with p. 12 of the national Program for fighting children’s homelessness and neglect for the years 2006-2010, improving the sharing of information concerning children’s vagrancy, truancy, criminality, offences, detentions, drug and alcohol use and mendicancy between militia criminal departments dealing with juvenile delinquency and children’s care services, establishing collaboration between them in order to prevent juvenile delinquency. In particular, if a parentless minor is detained on suspicion of having committed a crime, informing the children’s care services in order defined by p.5 article 106, Criminal Proceedings Code.

11. Introducing public control over the operation of militia criminal departments dealing with juvenile delinquency to check, how they perform their duties with regards to uncovering and eliminating the causes of juvenile delinquency in their respective territorial units and how they prevent the criminality among minors.

12. Introducing the necessary amendments to the procedural legislation and to the law on executive proceedings, which would enforce the entry of all the court decisions to the Unified State Registry of Court Decisions.

13. The President, Cabinet of Ministers and Parliament must quit the practice of awarding the acting judges as well as the practice of engaging them in various executive power bodies.

14. Making legal provisions for the operation of independent experts and expert bureaus.

15. Developing and passing the necessary legal norms establishing reasonable time frames for the consideration of cases in court. Envisaging the possibility of indemnities for the persons whose rights have been violated by exceeding the reasonable time limits in legal investigation.

16. Strictly defining the place of state executive agencies within the framework of state authority system. Persons running for offices, related to the service of court decisions, must without fail take a qualification test and on-hand training. Eventual de-monopolizing of governmental operation in serving court decisions and its potential transference to non-governmental executors or executive agencies under active control on behalf of the Ministry of Justice of Ukraine is expedient.

17. Enhancing the debtors’ liability for failure to comply with court decision and for deliberate creation of circumstances under which its execution is not possible; introducing incentives for voluntary execution of court decision.

18. Allocating funds in the State Annual Budget of Ukraine for executing the court decisions, in cases, where the state, state administrations, public institutions and agencies are debtors.

=========

 

1 Prepared by Ardadiy Buschcnenko, attorney, Head of UHHRU Board, Volodymyr Yavorsky, UHHRU Executive Director, Gennady Tokarev, attorney, expert of the Free legal assistance offices in Ukraine.

2 Available here: http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?pf3511=37806.

3 See text here: http://helsinki.org.ua/index.php?id=1279436602.

4 See, e.g. The new law on judicial system: quick and unfair justice, administered by smart but dependent judges http://www.pravo.org.ua/?w=r&i=&d=861; Law on judicial system and status of judges: pros and cons, Radio “Liberty” http://www.radiosvoboda.org/content/article/2119835.html.

5 P. 3 Principle VI Recommendation № (94) 12 “Independence, efficiency and role of the judges”, p. 60 b conclusion №1 (2001) of the Consultative Council of European Judges Standards concerning the Independence of the Judiciary and irremovability of Judges, p. 69 conclusion № 3 (2002) of the Consultative Council of European Judges principles and rules, regulating judges’ behavior, in particular, ethical norms and behavior, incompatible with the office and impartiality.

6 P. 45 conclusion №1 (2001) of the Consultative Council of European Judges Standards concerning the Independence of the Judiciary and irremovability of Judges.

7 See, in particular, here: „What cadres really decide”, „Dzerkalo tyzhnya”, № 36 (816) October 2-8 2010, http://www.dt.ua/1000/1050/70505.

8 Available in English: http://www.venice.coe.int/docs/2010/CDL-AD(2010)026-e.asp.

9 Available here: http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2181-17.

10 See in In English here: http://www.venice.coe.int/docs/2010/CDL-AD%282010%29029-e.asp. Unofficial translation: http://www.pravda.com.ua/rus/articles/2010/10/19/5492776/.

11 See, e.g. Serhiy Holovaty: Supreme Judicial Council is “Gestapo” http://helsinki.org.ua/index.php?id=1276257459; Expert Supreme Judicial Council became an instrument of judges’ punishment “Dzerkalo tyzhnya” http://www.dt.ua/issue/69839/; HungryMoloch, “Dzerkalo tyzhnya” http://www.dt.ua/1000/1050/69814/.

12 See Constitutional Court Resolution of October, 12, 2010, http://www.nau.ua/druk.php?name=342478-12102010-0.txt.

13 The sublime call, Commersant http://www.kommersant.ua/doc.html?docId=1507918; ЗМІ:highest specialized court on civil and criminal cases will be headed by the “regional” Leonid Fesenko , http://www.newsru.ua/ukraine/21sep2010/fesenko.html.

14 See more here: Insatiable judges at Viktor Yanukovich’s service. ”Ukrainska Pravda”. , http://www.pravda.com.ua/articles/2010/09/14/5382062/;

15 Prepared by Roman Kuibida, candidate of Law, deputy Head of the Board, Center for political and legal reform.

16 See. http://www.reyestr.court.gov.ua.

17 Resolution of the Highest administrative court of June 17, 2010 . //Unified State Registry of Court Decisions.– № 10227672.

18 Resolution of the Highest administrative court of July 27, 2010 // Unified State Registry of Court Decisions – № 10678995.

19 See, e.g., Resolution of the Highest administrative court of September 28 2010. // Unified State Registry of Court Decisions.. – № 11678126.

20 See, e.g. , http://www.bbc.co.uk/news/world-us-canada-11676403.

21 Resolution of the Highest administrative court of August 18, 2010. // Unified State Registry of Court Decisions.. - № 10931333.

22Resolution of the Highest administrative court of September 9, 2010. // Unified State Registry of Court Decisions.. . – №11572268.

23 Resolution of the Highest administrative court of September 9, 2010 // Unified State Registry of Court Decisions... – №11274243.

24 Resolution of the Highest administrative court of September 14, 2010 // Unified State Registry of Court Decisions.. – №11380260.

25 See Resolution of the Highest administrative court of August 13, 2010. // Unified State Registry of Court Decisions.. – №10958598, 11382825.

26 The European Court delivered its judgment in this case on 27 January 2011 and held that there was violation of Article 6 § 3(c) of the Convention

27 See at the Ministry of Justice site: http://minjust.gov.ua/0/19278

28 Complete version see here: http://www.ccu.gov.ua/doccatalog/document?id=73758

29 See here: http://hr-lawyers.org/index.php?id=1254812726

30 Law of Ukraine “On amending Criminal Proceedings Code of Ukraine concerning witnesses rights to defense attorney and other legal assistance” of July 1, 2010, № 2395-VI (http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=2395-17)

31 “Attorney has access to the trial in accordance with p.5 of this article”

32 See, e.g., http://www.reyestr.court.gov.ua/Review/4807787

33 Statistics data for 2008-2009; 2010 data were not available when report was being prepared.

34 According to State Statistic Department, in 2008-2009; 2010 data were not available. See official site. Cases under consideration in local general and appellate courts or remanded for further investigation, or revoked by the prosecutor. (the law-suits brought on the victim’s complaint not included). The Supreme Court operation is not reflected in the data.

35 State courts administration of Ukraine (http://www.court.gov.ua/home/). The figures reflect both the verdicts which came in force and those which did not.

36 Ibid.

37 Approved by Security Forces of Ukraine Decree № 440, of August, 12, 2005.

38 Approved by joint MIA/Security Forces /DPA of Ukraine Decree № 1065/307/482 of November 30, 11.2010.

39 Video-clip with his testimony see here: http://www.youtube.com/watch?v=NbYL2NRrNto

40 http://www.scourt.gov.ua/

41 See more on failure to execute court decisions in the section on property rights.

42 Petition № 66338/09

43 The Supreme Court has two other competences, unrelated to the issue under discussion.

44 Available here: http://www.president.gov.ua/documents/4549.html.

45 Available here: http://www.president.gov.ua/documents/7703.html.

46 It is noteworthy, that we are not talking about the draft Criminal Proceedings Code, which has been sitting in the Parliaments for many years, as it does not establish procedures for safeguarding the rights and freedoms, formulated by international standards, in the course of criminal investigation. We refer to the draft law, developed by the working group and approved by the National Commission for strengthening of democracy and supremacy of law. 

 

 

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