Diminishing public access to court rulings, increasing pressure on the courts
In an interview for OstroV, Roman Kuybida from the Centre for Political and Legal Reform explained the new worrying restrictions on which court rulings the public will get to see.
As reported, on 20 October 2011 the Verkhovna Rada passed a law which, among other things, effectively removed the public’s right to learn about all court rulings. Law №3932-VI, apparently about something else altogether, contains an insidious clause 3 § 3 stating that “the list of general jurisdiction court rulings which are to be added to the Register is approved by the Council of Judges, after agreement with the State Judicial Administration”.
On 10 November President Yanukovych ignored calls from civic and human rights organizations, as well as the Association of Ukrainian Banks, to use his power of veto and signed the bill into law.
At the time Roman Kuybida stressed that the Single Register of Court Rulings had been created on the initiative of civic organizations against the wishes of many dishonest judges who were afraid of court rulings which widely available. That openness has now been removed, with judges able to decide what the public should or should not see..
The Council of Judges has now set out the documents which are to be entered into the Single Register of Court Rulings. Having analysed the relevant decision passed by the Council of Judges, Roman Kuybida finds that a number of court decisions and rulings from local general jurisdiction courts to specialized courts will not get into the Register.
Asked if there were objective reasons for restricting the amount of material input into the Register, he pointed out that the problem could only be with a server not being able to cope with the volume. He adds that USAID funds were spent within the framework of several projects on improving the technical base for the Register.
“The most interesting thing is that the initiative on restricting the Register did not come from the State Judicial Administration which is responsible for the Register, but from the Council of Judges.”
There had already been problems with the Register not including all rulings. They had encountered the situation, for example, where a first instance court ruling on cases regarding peaceful assembly was not included, while the appeal court ruling was.
If this happened before, one could make a formal request to the registrar who was in turn supposed to ask the court why the ruling was not there.
Now some rulings can simply not be entered.
Roman Kuybida explains that with regard to bans on peaceful gatherings, the final rulings much be included in the Register. However it will not include decisions to hold people liable for “an unauthorized meeting”. “This concept is applied by the courts yet from a legal point of view it is meaningless since one does not need “authorization” to hold a meeting. Nonetheless people who did not notify the authorities about a meeting have been prosecuted, as was the case recently when members of an action which involved handing out condoms with an image of Yanukovych on them got 15 days. However whether there was in fact a relevant court ruling and what the justification we can no longer check.”
They have been monitoring court bans on peaceful assembly since 2010, he explains, when the problem became more acute, though they have taken court rulings from 2009 for comparison.
He says that the authorities now more often apply to the courts for bans, with the percentage of such bans very high. This is especially noticeable in Kyiv where in 2011 they found only one rejection by a court of an application to ban a meeting. He says in fact that he has the impression that the refusal was deliberate in order to blur the image of the courts allowing all applications from the Kyiv authorities.
The Centre has not observed any link between the number of peaceful gatherings and number of bans. It all depends on the region, with gatherings taking place in some regions without any obstruction.
With respect to other trends, he mentions criminal justice where the number of acquittals is falling each year, from 0.5% to 0.3%, while in 2011 it fell to 0.2%. Lawyers who worked in the Soviet period say that even then the percentage of acquittals was higher. He believes the trend may reflect an increase in the influence of the Prosecutor’s office on the courts.
He says that it is common for a judge who hands down an acquittal to be held liable, on the initiative of the Prosecutor’s office for some infringements in another case.
“In one of the regions there was a case where a judge handed down an acquittal, and the Prosecutor’s office raised the question of bringing disciplinary proceedings over infringement the time limits for examining the case.” The reason for the delay, he stresses, had been because additional expert assessments were called to check the quality of the investigation. There were grounds for asserting that drugs had been planted on the defendant. They were wrapped in the page of a journal and one of those involved in the arrest was studying law and writing a work on that subject at the time.
“What is interesting is that the Prosecutor did not so much take revenge on the judge as put pressure on other judges. At appeal level the acquittal was revoked and the case sent for a new examination. The new judge knew that his predecessor was undergoing disciplinary proceedings. In the end the Prosecutor’s application for disciplinary proceedings to be brought was dismissed, but only after the new judge had convicted the person.
There was a kind of “compromise” between the court and the Prosecutor: the person got a suspended sentence.” Kuybida points out that the judge’s doubts were clear since the defendant had already served a year for an analogous offence, and one would normally expect a harsher sentence for a repeat offence. The judge, however, was clearly scared to hand down an acquittal.
He believes it likely that the Prosecutor’s office even receives a reprimand from the next step up if an acquittal is passed, with them somehow needing to defend the honour of their post, and the idea that an acquittal proves that they did a bad job.
The Register will no longer hold decisions allowing or refusing to allow the Supreme Court to review high court rulings. Previously this could be monitored. It could be seen what cases this entailed, and how justified the refusals to allow review were. This, Kuybida points out, could indicate whether a judge was biased. It will now be difficult to carry out such monitoring.
The rulings of the High Administrative Court to return or leave without examination a legal suit will not be placed in the Register. This refers only to rulings issued at first and final level, i.e. those not subject to appeal. This, Kuybida says, is extremely strange. Various minor legal suits will be published while the rulings of the High Administrative Court at first and final level will not. These rulings after all concern suits against the Verkhovna Rada, the President, the High Council of Justice and High Qualification Commission.
Kuybida points out that the High Administrative Court’s practice has been inconsistent. In one case it refused to initiate proceedings over a suit demanding that the court order the President to present his income declaration. In another case the suit trying to compel the President to react to the claimant’s violation of rights was returned as unfounded. Yet both cases should have been examined on their merits.
The Register will now not contain rulings on withdrawal of a judge or refusal to withdraw them.
Nor will it publish court orders allowing various investigative activities to be carried out. These were previously published though later so as not to obstruct the investigation. It is extremely important to be able to analyze such rulings since they concern fundamental human rights – confidentiality of correspondence, inviolability of one’s home and so forth.
Asked if this frees the hands of the police and SBU [Security Service], Kuybida answered that yes, it does.
He stresses that the point of the register had been in being able to follow a case and determine whether a judge had been biased or had an interest in a particular outcome, whereas now we see only pieces of such cases.
Roman Kuybida believes that the present restrictions to the Register were made in order to not provoke an outcry. He adds that despite everything, the decision is a compromise one. However the Council of Judges can in future review the decision, still further restricting the Register, that the law enables them to do so.
From the interview at OstroV