Further investigation as a factor encouraging unlawful violence
Denis Kobzin and Andriy Chernousov from the Kharkiv Institute for Social Research consider the role the courts should play in ensuring fair trial and countering the use of unlawful violence by police bodies, the role they in fact play in Ukraine, and the reasons.
They write that studies of the scale of unlawful violence shows that the courts are not preventing the use of confessions obtained by unlawful methods. While there are many reasons, they say that the main cause is the degree of dependence of judges. Ukrainian courts are dependent on a number of factors, including financing; political and economic pressure; as well as the influence of people in position on the process for appointing, choosing and dismissing judges.
Surveys carried out by the Council of Judges and Centre for Judges’ Studies in the summer of 2011 found that of the 579 judges asked the following types of pressure had been experienced::
20.8% - pressure from executive bodies of power;
18.5% - pressure from Prosecutors;
17.3 % - from legislators;
11. 9 % - pressure from the chairpersons of their courts;
11 % - pressure from higher-level courts.
The entry into force of the new Law on the Judicial System and Status of Judges has – as warned – resulted in courts losing a substantial part of their independence and becoming even more under control.
In their article New Law on the Judicial System: hasty, low quality justice from intelligent but dependent judges Ihor Koliushko and Roman Kuybida state:
The Law for the first time gives a clear list of grounds for bringing disciplinary proceedings against a judge. Interestingly, some grounds for dismissal due to violation of a judge’s oath according to the version of the Law on the High Council of Justice passed on 13 May 2010 totally cover and are sometimes broader than in the Law “On the Judicial System and Status of Judges”. For some more serious offences a reprimand is envisaged, while for more trivial ones – dismissal. As from recently the Law on the High Council of Justice makes it possible to hold all judges under the permanent threat of dismissal (for example, over missing the time limits for examination of a case). The new law has strengthened this possibility.
Despite the declared adversarial nature of the disciplinary proceedings, it will not in fact be so. A member of the disciplinary body (the High Qualifying Commission of Judges and the High Council of Justice ) are at the same time the investigator (being helped in this by disciplinary inspectors), prosecutor and judge with regard to the judge in question.
The authors write that confirmation of the wide powers of the High Council of Justice with respect to judges can be found easily on the Internet.
There are also a number of cases, including those where the Prosecutor has exerted influence, here, for example,
The authors note that in a focus group discussion they carried out with judges, the judges did not believe that the removal of the option of sending cases back for further investigation in the new Criminal Procedure Code would lead to an increase in the number of acquittals. They said that the Prosecutor’s demands would simply change and it is the Prosecutor who plays the key role in the criminal justice system.
This results in the law enforcement bodies and courts acting together as a single system, instead of the courts fulfilling their proper role as providing an objective and fair examination and promoting an adversarial principle of court proceedings. The authors note that the courts ceased to be an independent body back in Soviet times. Representing the State’s interests, judges took their place in the structure next to the police and Prosecutor. The fact that judges, police and prosecutors studied together and that judges were recruited from the law enforcement bodies only strengthened the “cooperation” and obviously affected the level of objectivity and impartiality. Such a system protected the law enforcement bodies from accusations of wrong-doing or mistakes, since their actions would be supported at the next stages.
It was this system of interaction which prompted a steady fall in the number of acquittals. An acquittal is viewed these days as a failure of the law enforcement system. According to studies the number of acquittals in modern Ukraine is significantly lower than in the USSR, and even more so in Tsarist Russia.
Suggestion in the law that compensation should be paid if a person has been wrongfully prosecuted also acts as a factor against handing down acquittals.
So what can a judge do who comes upon a case based on confessions or testimony obtained by unlawful means?
The authors’ analysis suggests that they cannot do much.
They can conscientiously fulfil their proper role, of course, but far from all will choose to do so when they know they will run up against a huge number of problems from the police and Prosecutor.
It is far more common for them to go along with the version presented by the prosecution. The consequences of this if the case is appealed and if it gets to the European Court of Human Rights are bad, but not, the authors write, as direct and painful as the pressure from the chair of the court, Prosecutor and the close scrutiny from the High Council of Justice.
There is also another variant where the judge simply sends the case back for further investigation. More often than not this reflects unwillingness to take the responsibility for acquitting a person, since clearly this is called for if there is insufficient evidence to convict them. This however means that the case drags on with the accused in the majority of cases remaining in custody. Some 20% of the cases before the European Court of Human Rights include complaints about the length of court proceedings. The European Court has on a number of occasions stressed the unacceptably wide-spread use of remand in custody in Ukraine.
The authors point out that if the police and Prosecutor do not wish to remove the failings that the court is pointing out, the most they risk is that the case will again be sent for further investigation.
The authors conclude that the possibility of sending cases back for further investigation is indirectly promoting the existence of such shameful features as torture and ill-treatment by the police. The mere increase in the role of adversarial proceedings and greater defence for the accused in the new draft CPC will not in themselves lead to an increase in acquittals. Nor by itself will abolition of the possibility of sending cases back for more investigation. In Russia this happened, but the number of acquittals is still not over 1%. The Prosecutor needs to be stripped of both investigation functions, and the role of supervision to check that the investigation is carried out lawfully.
Its influence on the High Council of Justice should also be reduced.
From the text at http://www.khisr.kharkov.ua/index.php?id=1328179244