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Human rights in Ukraine 2011. IV. THE RIGHT TO FAIR TRIAL

   

[1]

1. General overview

Over the last two years right to fair trial has been in the focus of public attention due to the obvious violations of its standards in the course of long-lasting public trials against politicians. On the other hand, the judicial reform carried out in mid-2010 is yielding its first results, which do not give any grounds for optimism.

The old problems of judiciary system persist. In particular, the trials still tend to drag along beyond any reasonable terms; the workload per judge is increasing (on the average, up to 130 cases per year, and 138 materials per judge at the Highest Administrative Court of Ukraine); the court’s rulings are not implemented if the state is a party to the case, the corruption in courts never decreased and they are still perceived by the public as the most corrupt bodies; the number of complaints against them grows annually. The selection of judges failed to improve, as was expected[2], while the structure of their education through higher educational establishments accredited by the Ministry of Education and Science, and not through the independent universities, leaves much to be desired.

Meanwhile, new serious challenges related to further loss of independence by the judges and their further politicizing and outside manipulating. The judicial reform practically identified the only courts’ controlling body — Supreme Judicial Council, which, in its turn, is totally subordinate to politicians, and, specifically, to dominating political force. This political dependence brought to life rather bizarre (from the legal point of view) decisions of the courts, from local courts’ rulings to the decisions of the Constitutional courts. However, the independence of judges is attacked also in other areas.

In order to establish total control of judiciary system in Ukraine, the power organized staff rotation in the courts. As a result of pressure, lot of judges resigned on principle, although authorities claimed that they did it to get better retirement benefits. In other words, authorities pretend to ignore the loss of valuable and experienced personnel. According to different assessments, more than 1000 out of nearly 8 500 judges’ positions remain vacant.

In November, 2011 the Council of administrative courts’ judges recommended Ihor Temkizhev for the Chief Justice of the Supreme administrative court. Earlier this position was held by Olexandr Pasenyuk, recently appointed the judge of the Constitutional court under parliamentary quota. One week earlier (on November, 17) Temkizhev was transferred to the Supreme administrative court from the economic courts’ system, within which over the years 2002–2010 he served as a Head of economic court in Donetsk oblast’. From December 2010 he was the Head of Dnipropetrovsk Appellation economic court. The Council members unanimously approved Temkizhev’s candidature. The judges had no questions for him till the voting started. It means that administrative court judges recognized that they did not have any worthy candidates capable of becoming the Head of Supreme administrative court. It’s quite possible that national judicial system for the umpteenth time demonstrated appointment of upper officials on the instructions from above, despite the legal provision that the candidate should be nominated by the judges’ self-governance body. It looks as if they were just complying with political requests. Inertia and lack of any opposition of judges in this situation confirms their total subjugation to the political power.[3]

Today the heads of the key judiciary institution all originate from Donetsk oblast’ and have no work record in respective courts. Instead, they are all somehow linked to the power in force. For example, the Head of the specialized court for civil and criminal cases Leonid Fesenko, contrary to the law, for a lengthy period of time combined his position with the duties of Supreme Rada deputy from the Party of Regions. The Head of Supreme Economic court Viktor Tat’kov was formerly the Head of Donetsk Appellation economic court and had no work experience in the cassation courts.

The Supreme Court of Ukraine remained the last entity not controlled by the authorities. The struggle to gain that control lasted for a long time, despite of the fact that the competences of its Head were terminated on September 29, 2011. Initially, the judicial reform deprived the Supreme Court of Ukraine of all its remit. By the end of 2010 the Head of the SCU V.Onopenko was pressurized to make him resign. Attempts to make him resign by the SCU Plenum’s decision “on lack of trust” failed.

It was probably after this fiasco that the prosecutor’s office filed a criminal case against ex-deputy Minister of Justice Yevhen Korniychuk, who is Onopenko’s daughter husband. The action was performed with utmost cynicism: on December 22, 2010, right after his daughter was born, he was subpoenaed to the prosecutor’s office and detained there. He was accused that on February 23, 2009 (two years prior to arrest), he signed a letter concerning purchase of legal services for one of the suppliers — “Magister”LTD — in the “Naftogaz” case. Meanwhile there are solid grounds to argue that this persecution is directly linked to Onopenko. Earlier a criminal case against Onopenko’s daughter was filed. By the end of November 2011 it became clear that Onopenko would run for the SCU Chief Justice position. At the same time it became known that the prosecutor’s office re-qualified Korniychuk’s actions as milder offense[4] and the attorneys appealed for amnesty, which was granted by the court in early December 2011.[5]

However, Onopenko’s removal from the SCU did not help in supporting the candidate offered by the authorities. That’s why these latter introduced the changes to the legislation, aimed allegedly at the implementation of EC Venice Convention on broadening the SCU competences. It became obvious, however, that not a single recommendation of the EC has been implemented, and the actual goal of amendments was totally different[6]. The law enlarged the staff of the SCU up to 48 judges (as opposed to former 47). The 48th judge later can become the Chief Justice of the Supreme Court of Ukraine. Four judiciary chambers, headed by four deputy-heads were restored (the total number will now amount to five instead of one). The members of Higher Qualification Board of judges of Ukraine, appointed from the SCU judges will be entitled to participate in the Plenum meetings, whose remit covers the election of the SCU Head. In reality, it means that two members of the Supreme Judicial Qualification Board — I. Samsin (the Head of the Board) and M. Pinchuk (the deputy head), appointed to it by the SC, will be able to take part in the meeting. Their participation could affect the redistribution of votes and even candidates in the election of the SC Head election by Plenum, for the benefit of the candidates supported by the President. Obviously, the consideration by the Supreme Judicial Council of case concerning the dismissal of former judiciary chamber for criminal cases’ judges on the allegation of breach of oath was also aimed at the redistribution of votes. Judges were even threatened with criminal accusations against all of the members of the former SCU chamber for criminal cases, who in 2009–2010 allegedly illegally changed verdicts for 15 persons convicted for life, to 15 years of imprisonment. Moreover, the general prosecutor’s office speaker announced that the staff of the SCU chambers for criminal cases “set free” defendants who have committed most dangerous crimes against society. In other words, the Supreme Court judges were publicly accused of liberating the criminals.[7] In fact, this law and trials served political interests, i.e. redistribution of votes at the SCU Plenum.

In the end authorities anyway failed to appoint their own candidate. The SCU Plenum supported more neutral candidate Petro Pylypchuk, who was elected the Chief Justice of the SCU by parliamentary voting on December 23, 2011, although his term of office will come to an end once he turns 65, i. e. in October 2012, and there will be enough time to get ready to the new elections of the SCU Head.[8]

The case of the former Chief Justice of the Appellation Court of the ARC Serhiy Lunin is also worth mentioning. On September 9, 2011, the prosecutor’s office of Crimea, helped by the special NSU unit “Alfa” held a search with subsequent confiscation of documents from the Appellation Court of the ARC. On September 12 the Chief Justice of the Appellation Court of the ARC Serhiy Lunin was charged under two articles of the Criminal Code with abuse of authority and violation of the law on state secret. The case was classified as “top secret”, so that even Lunin himself had no access to its materials. Mass media divulged the information, according to which the alleged violation of the law consisted in moving a certain “secret” office from one floor to another. One of the media version sustained that criminal case against Lunin was initiated by the NSU and prosecutor’s office revenge for Lunin’s refusal to sanction the tapping of cell phones belonging to three members of Higher Judicial Council, including the Council Head. Lunin himself refrained from any comments with regards to the fact and motives of filing criminal case against him.

On September 29 he submitted request to resign, which was satisfied by the Supreme Rada on October 6. On October 12 the prosecutor’s office of the ARC closed the case on the grounds of absence of criminal evidence.[9]

This case is a vivid example of pressure, under which the judges have to operate without any protection.

Significant restriction of access to justice due to the constant changes in competences, reductions in statutes of limitations, setting up of a specialized SACU chamber for the cases against President and certain other bodies of authority, whose decision cannot be appealed, is another manifestation of violation of right to fair trial.

The changes to the Law “On access to court decisions” also deserve mentioning in this context. According to them, not all the court rulings will be entered into the national registry of court decisions, but only those, the records of which will be recognized as necessary by the Council of Judges of Ukraine with the approval of National Judicial Administration of Ukraine. Let’s remind that the Unified National Registry of Court Decisions is the database of all the courts’ rulings, open to all the Internet users. It was set up on the NGOs initiative despite the opposition of certain dishonest judges who were afraid of making courts’ decisions open for public at large. Now these judges have authority to “filter” the said courts’ decisions with total disregard of public opinion, for whose benefit the Registry was set up. Under these circumstances the Registry will no longer serve as an instrument of public control over judiciary branch of power.

At the same time the fulfillment of promises to improve the funding of the judiciary branch was for the umpteenth time transferred from the year 2012 to 2013.

Ukraine persists in ignoring the rulings of the European Court of Human Rights and keeps doing nothing to put an end to the violations of right to fair trial. By the Court pilot ruling in the case “Yuriy Mykolyovych Ivanov vs. Ukraine[10] the state was obliged to introduce efficient mechanism (or set of measures) for the legal protection, which would ensure adequate and sufficient protection in case of non-compliance or delays in complying with the national court’s decisions, for which the state is responsible under the principles, established by the practices of the European Court of Human Rights. In compliance with the said decision, the Ministry of Justice developed a draft law of Ukraine “On state guarantees of compliance with courts’ rulings”, which on January 14, 2011 was submitted to the Supreme Rada of Ukraine for consideration. Later it was revoked, and on September, 8 a similar draft law was submitted. [11] It is noteworthy, that it was passed in the first reading just next day following its submission to the parliament. We believe that this law does nothing to improve compliance with courts’ decisions. It is aimed, rather, at reducing the number of court claims vs. state and respectively at decreasing the number of rulings passed against the state. Nevertheless, the European Court of Human Rights on the motion from the Ministry of Justice, continued the term for complying with pilot decision by July 15, 2011, by its letter of January 21, 2011. The decision, however, was not complied with by the new date either, so that the new term was not defined.

In September the EC Committee of Ministers approved an interim resolution on Ukraine’s compliance with the European Court of Human Rights pilot ruling in the case “Yuriy Mykolyovych Ivanov vs. Ukraine” at the meeting on the monitoring of the countries’ compliance with the European Court of Human Rights. In its resolution the EC Committee of Ministers greeted the approval of the first reading of the draft law “On state guarantees of compliance with courts’ rulings”, granted by the Supreme Rada of Ukraine on September 9. the EC Committee of Ministers called out to Ukraine to complete this legislative process successfully and to allocate respective funding needed to comply with European Court of Human Rights pilot ruling in the case “Yuriy Mykolyovych Ivanov vs. Ukraine” and to ensure harmonizing the said draft law with the principles of European Convention for Human Rights.

The EC Committee of Ministers also called out to Ukraine to strengthen its efforts in regulating similar cases filed with the European Court of Human Rights.[12]

Generally speaking, the systematic approach and continuity are still lacking in the area of implementing national policy with respect to the right to fair trial. As demonstrated above, the authorities are often guided by narrow political interests or short-term cost-savings, while this attitude leads to much larger losses in the future.

For example, instead of complying with the decisions of the national courts they do quite the opposite. First they ignore the obvious, i.e. legal norms, spelled out in the law and refuse to abide by them, thus forcing citizens to go to court. As a result, more than 200 cases, related to the payments of social benefits, are waiting for decisions in Ukrainian courts annually. Next, the state tries to annihilate the very law, the protection of which people are seeking. Or it can raise the tariffs for court services through establishing additional legal fees, thus complicating access to court. Alongside with that, it discriminatorily shortens statute of limitation in cases, where administrative bodies act as respondents, i.e. in administrative justice. Let us remind that statute of limitations in civil cases amounts to 3 years, while in administrative case it’s been reduced to 6 months, and in some cases — to one month. Courts, in their turn, somehow charge the state only within the statute of limitations. Into the bargain, the jurisdiction for social and economic rights-related cases is constantly changing. Over the period between January and March of 2010 and September–December 2011 cases, related to social benefits payments, were heard within the framework of administrative justice, and over the period between March and September 2010 — within the framework of civil justice. In fact, power is erecting more and more obstacles for the citizens’ access to courts, where they hope to protect their rights. The state spends millions of hryvnas for over 200 thousand hearings a year — for the cases which by merit do not contain legal dispute. The local authorities are obliged to appeal the decisions in appellation or cassation courts. And the state throws much more money to the wind, transferring the cases from administrative to civil courts and back. This policy engenders another problem — overload of judiciary system, deterioration of the quality of courts’ operation in their desperate efforts to meet the deadlines for each case.

And, finally, the government literally provokes the responsible bodies not to comply with the courts’ decisions. For example, the UHHRU learnt about the instruction to suspend payment of pensions by the courts’ decisions and to stop immediately the funding of notifications for the payment of pensions by the courts’ decisions. This information was obtained from the letter No. 13024/02-20 of 24.06.2010, sent out to the heads of chief departments of Pension Fund of Ukraine in the ARC, oblast’s, and the cities of Kyiv and Sebastopol, signed by the deputy head of department V. Nykytenko and distributed by electronic mail. In other words, the bureaucrats are instructed to disobey the courts’ orders, which came in force. On the basis of this letter the head of the Pension Fund department in Kharkiv oblast’ V. Achkasov and the deputy head of Pension Fund department in Donetsk oblast’ ordered their subordinates to suspend payment of pensions by the courts’ decisions and recalculate the amount of pensions without any consideration of court’s decision. Later UHHRU learnt that this instruction was stopped, but we do not believe that it was the only document.

2. Independence of judges and courts

As was mentioned above, the Supreme Judicial Council became the main instrument of exerting pressure on judges. This body concentrates extremely important functions:

—  key role in appointing and dismissing judges;

—  right to initiate, through its members, a disciplinary action against judges, and broad competences, allowing to request any documents (in spite of the fact that requesting the documents of the case in progress, has been recognized unconstitutional);

—  appointment of chief justices (this function is in direct contradiction to Constitution).

Moreover, this entity remains highly politicized. Under the Constitution the Supreme Judicial Council is composed of twenty members. The Supreme Rada of Ukraine, President of Ukraine, congress of judges of Ukraine, congress of Ukrainian lawyers and convention of higher legal educational establishments and scientific institutions appoint three members each to the Supreme Judicial Council, while all-Ukrainian conference of the prosecutor’s office representatives appoint two members to the Council. By virtue of their office the Chief Justice of the Supreme Court of Ukraine, the Minister of Justice of Ukraine, and the Prosecutor General of Ukraine are members of the Supreme Judicial Council. Changes in the procedure for appointing council members involve Constitutional changes; that’s why they are being postponed. It does not justify, however, the extraordinary authority vested in this body.

Therefore, under the circumstances, when the parliamentary majority and the president belong to the same political force, which appoints high executive officials (heads of higher legal educational establishments, ministers, Prosecutor General etc.) only 7 members of the Supreme Judicial Council, at most,can remain independent.

First of all, the SJC influence was manifested in dismissing the judges for the breach of the oath. A most vivid example of this influence was given above, i.e. the beginning of investigation concerning all the judges of the “criminal chamber” on the eve of the SJC elections. This investigation, by the way, was instigated by the Prosecutor General office.

Human rights activists believe that the SJC turns into a kind of “Gestapo”, i. e. an instrument of bullying and punishing the judges.

In our previous report we stated already that mass resignation of judges as well as mass violations of disciplinary actions against judges can result from this pressure.

Probably it is the main reason of amazing obedience, demonstrated by the Council of Administrative courts’ judges, who unhesitatingly and unanimously recommended for Chief Justice of the Highest Administrative Court a person, absolutely unknown to them, who had worked a week only in the said court.

The SJC is not the only available mechanism. There are many others — probably, less rigid, but efficient enough. For example, the meetings between executive officials and judges, when these latter are “advised” as to the rulings, needed by the authorities.

Thus, a round table “Problematic issues of application of the law, regulating social benefits for certain categories of citizens in Ukraine, held in Vinnytsa on October 14, 2011, was no exception. Although it was dedicated mainly to legal problems of the application of law, some discussions demonstrated that the meeting was aimed at showing the judges the “right” way of dealing with disputes related to the payment of social benefits. As stated deputy Chief Justice of the Highest Specialized Court for civil and criminal cases M. Pshonka “ presently the state, taking into account its financial constraints, is incapable of timely returning all the money due and paying all the social benefits”. He also stressed that the more “wrong” decisions will be passed by the courts, the larger will be the state debt, and as many people go to the European Court for Human Rights, seeking protection of their rights, this debt will increase even further. Hence, the judges should show maximum “caution” in handling these cases in order to avoid decisions which can be harmful for the state finances. We found this position, voiced by the representatives of the judicial branch, whose calling is to protect the law and not the state finances, most unusual.

2.1. Prosecutor’s office influence, exerted through the Supreme Judicial Council

The cases, when the prosecutor’s office, through its representatives in the Supreme Judicial Council instigated disciplinary action against judges for the breach of oath, have become more numerous. Allegedly, the judges passed the rulings, which were “incorrect from the prosecutor’s office point of view”, in lawsuits where the prosecutor’s office represented the state.

The documents, which became available to the Ukrainian Helsinki Human Rights Union, showed that on June 7, 2011 deputy Prosecutor General of Ukraine Mykhailo Havrylyuk, who is also a member to the Supreme Judicial Council, approached the Supreme Judicial Council with the proposal concerning dismissal of three judges of appellation court in Kyiv — Ihor Moroz, Valeriy Lyashevych and Lyudmila Bartashchuk — from their office.

The Prosecutor General Representative intended to penalize the judges for their adherence to the Constitution of Ukraine and to the European Convention on Human Rights. The thing is that the judges in question passed a decision to acquit a defendant due to the absence of specific evidence which would justify his further stay behind the bars. This decision is completely in line with article 29 of the Constitution of Ukraine and article 5 of he European Convention on Human Rights, which stipulate the right to freedom as inalienable human right; it means that no one needs to prove that he/she has grounds to stay free. It is also supported by the practices of the European Court, which many a time stressed that “ there is a presumption for the benefit of acquittal”, that “prior to conviction a person is presumed not guilty” and that “ he/she should remain free till the verdict is passed, as his/her stay in custody becomes unjustified”. In fact, the deputy Prosecutor General accused the judges of failure to provide justification for keeping a person in custody. The court prosecutor did not provide any material evidence to support such decision.[13]

UHHRG sent numerous appeals to the bodies of power. In the meantime the Prosecutor General office revoked its motion concerning the judges in question.

In November 2011 the Center for legal support supplied information about another case. It received the documents concerning Prosecutor’s General petition requesting dismissal of the judge Roman Brehey. He fell into disfavor for passing two acquittal rulings based on completely reliable evidence. Alongside with this decision the judge passed a special resolution specifying investigation faults. The Appellation court invalidated these verdicts and remanded the case for the new hearing. The Prosecutor General office, however, decided to use out-of-court means to get rid of the unwanted judge.[14]

It is also noteworthy that Prosecutor General Office also initiated all the SJC investigations against all the judges of the Criminal Chamber. Besides, it was on the motion of the first deputy Prosecutor General and the Supreme Judicial Council member R. Kuzmin that the SJC started to look for the evidence to dismiss four judges of the Supreme Court (V. Zagoldny, V. Pyvovar, A. Red’ka and A. Skotar) for the alleged breach of oath when dealing with the appeal in a criminal case in the years 2004 and 2008.[15]

The unconfirmed data, which cannot be checked with the help of available sources, show that the Prosecutor General Office pressure on judges through SJC has become multiple and systematic.

The situation, when one of the parties to the process, unhappy with the results of court hearing has a right to influence the court by means of administrative mechanisms, is totally unacceptable. Under the European standards of judges’ independence, “ the judges must pass their rulings absolutely independently and have an opportunity to act without any restrictions, illegal influence, instigations, pressure, direct or indirect interference, harassment, regardless of who and on what motives tries to initiate these actions. The law should envisage the sanctions against persons trying to influence the judges” (EC Committee of Ministers Recommendations No. (94) 12).

2.2. Judges’ responsibility and pressure through criminal investigation

In 2010 Supreme Judicial Qualification Board received 6 108 complaints against judges’ actions, including 480 against the Donetsk oblast’ judges. In 2011 17 538 were received. In 2011 116 were held disciplinarily accountable[16]. It means that only 0,7% of complaints involved disciplinary consequences for the judges, or that 99,3% of the complaints have been groundless. However, it is hardly believable; it is more likely that for some reasons the judges manage to dodge responsibility.

On the other hand, the SJQB sometimes becomes an instrument of bringing pressure upon judges. Prosecutor General Office uses this mechanism in the same way it uses the Supreme Judicial Council. Thus, in November, the SJQB censured Darnitsa district court judge T. Trusova, who, contrary to the Prosecutor General office’s wish, changed the preventive measures with regards to the detained. Evidently, this occurrence gave a hint to other judges on how to choose preventive measures “correctly”, i. e. in accordance with Prosecutor General
office’s wishes.[17]

In July 2011, the Prosecutor office of Kyiv oblast’ proposed to hold the judge of Irpin town court (Kyiv oblast’) Serhiy Anipko disciplinarily accountable. The fact of the matter was that the judge disagreed to keeping the suspect, from whom 21 pieces of arms and significant number of ammunition were confiscated, in custody. Instead the judge imposed the written undertaking not to leave. The SJQB member V. Masliy asked the judge what positive characteristics he found with the suspect, which led him not to order keeping him in custody. S. Anipko pointed out that the motion submitted by the prosecutor office, contained no grounds which warranted custody. Besides, the judge stressed that according to case documents some pieces of arms were registered. SJQB members inquired what the judge’s grounds for taking suspects in custody in his former cases have been. The judge explained that it was his first case involving taking into custody. “And the last as well”, added the SJQB member Nina Fadeyeva, thus showing her contempt of the judge. The SJQB decided to make a motion to the Supreme Judicial Council requesting S. Anipko dismissal from the office, as in the judges’ opinion his actions could be classified as breach of oath. [18] It was another lesson to the judges on how to obey the Prosecutor’s office orders. The Supreme Judicial Council refused to dismiss the judge, although this latter publicly recognized his mistake, stating that now he would have passed a different decision. So in the future he hardly can be expected to turn down another prosecutor’s office motion on arresting a person.

Over the period between 2005 and November 25 2011 the Supreme Judicial Council passed only 15 decisions on motions concerning judges’ dismissals once the verdicts against them have come into force: in the year 2005 — 0, 2006 — 2, 2007 — 0, 2008 — 1, 2009 — 0, 2010 — 10, 2011 (as of November 25) — 2 decisions were passed. Between September 2010 and December 2011 the HQBUJ passed 14 decisions concerning judges’ removal from office due to the start of criminal proceedings against them. [19]

In 2008, 4 929 public complaints against judges’ actions were submitted to the Supreme Judicial Council; in 2009 — 4 533 complaints, in 2010 — 8 587, between January and September 2011 — 7 356.[20]

According to the data provided by the SJC Head, 566 inspections of 793 judges’ professional operation (10% of all the countries’ judges –author’s note) were warranted. In 218 cases absence of breach of oath was found. Motions on dismissal due to breach of oath were made with regard to 39 judges. суддів. 8 of them were renewed in office on the decision of the Higher Administrative court. Altogether 117 such motions have been made over the last 12 years.[21]

The tendency of increase in number of complaints is obvious. Naturally, some of them can be unjustified, but hardly whole 99,3%.

Another observation is also of interest. In general, results of different assessments prove that the courts are rather corrupt; nevertheless, the cases of holding the judges accountable are rare despite a substantial number of facts of bribing. Why, then, it happens? We can offer a number of possible reasons:

—  poor quality of criminal investigation, not leading to the logical conclusion of a case — however, it’s hardly believable, as the structure of our Inquisition-like system would not allow anyone go unscathed regardless of his/her guilt or innocence;

—  law enforcement professionals’ corruption — i. e. they agree to terminate criminal prosecution for certain fee — this version seems more close to life and probably clarifies some cases;

—  the use of criminal prosecution documents for future blackmail — this version seems the most credible. It is not easy to find the levers, which would force a judge to make right decisions. However, when the prosecutor’s office has some “material” against the judge, it will always achieve the desired goal within the statute of limitations of the crime. It is much more important for the prosecutor’s office and law enforcement bodies than a sporadic bribe for closing a criminal case against the judge. This latter should always be kept in suspense.

It is this last cause, which is pointed at by the reporters in the course of journalists’ investigations.

Thus the journalists from “TVi” in their program made public the testimony of the former Chief Justice of Lviv Appellation Court Zvarych, who was sentenced to 10 years of imprisonment with confiscation of property. The case became widely known in Ukraine.[22] In his testimony Zvarych revealed that many bureaucrats, and in particular, the then Chief Justice of the Highest Administrative Court of Ukraine Pasenyuk, who is now judge of the Constitutional Court of Ukraine, received bribes. However, for the reasons unknown, some portion of investigation concerning some people was removed from the case file, while the investigation concerning others was practically stopped.[23] Obviously, the materials in question were needed to hold a lot of bureaucrats in suspense.

2.3. Influence exerted by Chief Justices

The functions of the Chief Justices practically were not affected by the judiciary reform. Therefore they can be used as an instrument of influence. Although they no longer have the right to assign cases to judges, they still maintain their influence through other professional functions (granting vacations, giving awards, professional advancement etc.).

In a certain case, the Chief Justice of Shevchenko district court in Kyiv submitted a motion requesting judge D. Matlsev dismissal for decision he made. Chief Justice disliked the ruling that nullified the decision on starting criminal proceedings. The situation when Chief Justice evaluates court rulings and passes decisions by means of “administrative whip” seems rather odd. The Justice’ decision later was invalidated by an appellation body and remanded for further consideration to the same Shevchenko district court in Kyiv. The decision which will be passed by another judge in the case is easy to predict. Unfortunately Chief Justices do not fully appreciate the concept of judges’ independence and unacceptability of any interference into their operation even on the part of Chief Justice.[24]

2.4. Funding

Judiciary reform also failed to provide instruments to ensure financial independence of the justice system. Although the funds and their use has been under control of the courts since State Court Administration was transferred under judiciary branch, the courts themselves never received guarantees of due funding.

Despite the fact that over the last 2 years courts funding has substantially increased after cutting down the expenses in 2009, it still covers less than 50% of the needs, and in some years — no more than 30%. Into the bargain, the allocated funds are transferred irregularly and often only by the end of the year, which precludes their use for repairs or construction, for example.

Judiciary reform postponed improvement of courts’ and judges’ funding for some time in future, and it can be postponed even further. For example, in December, 2010 while adopting the budget, certain norms for courts funding were again continued for one year.

On the other hand, the use of allocated funds by courts also raises a lot of questions. Thus, some courts are held literally in palaces, while others have no hearing rooms at all. The Accounting Chamber of Ukraine in May made public the results of the audit carried out in the Highest Economic Court. The auditors found out that over the last three years no inventory has been taken of either non-negotiable instruments or material values, or of the accounts and respective balance sheets. Moreover, the Highest Economic Court of Ukraine has no structural department for internal control and audit.[25]

3. Right to legal assistance and right to defense

The right to defense in the criminal proceedings is not properly guaranteed. There are several reasons for that, some being the result of manipulations with procedural norms, and the others — result of general faults in the Bar structure and, in particular in the organization of legal assistance probo.

Let’s remind, that in the years 2008 and 2009 the court passed rulings in the cases of Yaremenko[26], Lutsenko[27] and Shabelnik[28], in which it drew attention to the violation of right to remain silent and right to defense. These rights were infringed upon through manipulation with the suspects’ status. In the first case the gravity of charges was “reduced”, while in the second a suspect was questioned as a witness under the threat of punishment for the refusal to testify.

In all three cases the decisions of the European Court were not complied with by the national bodies of power. In particular, there was no adequate response from the higher judicial bodies of Ukraine. As a result in 2011 the European Court of Human Rights passed two stricter decisions concerning the right to defense, in relation to procedural manipulations and gravity of charges. In the cases of Nechyporuk[29] and Balytsky[30] the claimants were interrogated on the matter of aggravated homicide, without their lawyer present, while formally they were detained for an administrative tort. In both case the European Court found that prosecution needed this manipulation to evade the requirement of mandatory representation. Besides, in Balytsky case the court ruled referring to article 46 of the Convention:

“Practices of administrative arrest of a person for the opportunity to interrogate him as a suspect in the crime are classified by the court as arbitrary under article 5 of the Convention, as the authorities failed to ensure the claimants’ procedural rights as suspects in the crime. In the case Yonkalo and Hechyporuk vs. Ukraine the European Court pointed out that formal detention of a claimant for administrative tort with his subsequent treatment as suspect in the crime practically deprived him of the opportunity to use the services of attorney’, whose presence would have been mandatory under the Ukrainian law, had the detained been charged with homicide, perpetrated by a group of people and/or for mercenary ends — as this was the crime, in connection with which he was questioned… Taking into account the essence of the problem, the European Court stressed that immediate legal and administrative reform is due in order to bring the legislation and practical operation into compliance with court rulings on this case and with provisions of article 6. The court entitled the state to find most appropriate ways to resolve this problem under Cabinet of Ministers’ supervision”.[31]

Another aspect of the right to legal assistance was manifested in Zagorodny case.[32] The claimant found a legal expert to defend him, but the court banned him from the defense, virtually forcing the claimant to use services of the attorney not chosen by him.

The European Court pointed out that the restriction in choice of attorney does not constitute a Convention violation per se. It then elaborated that the problem of unregulated issue of legal experts’ participation in the proceedings has been in place in Ukraine since November 2000, i. e. since the Constitutional Court of Ukraine passed a ruling in Soldatov case.[33] The Court found that by evading this problem for considerable time, the state created situation which is incompatible with the principle of legal determination.[34]

As to the problems of the Bar, the respective law on the Bar, stipulating setting up of a professional association with mandatory membership, still has not been passed. It seriously hinders implementation of any reforms, especially in criminal justice.

Meanwhile significant progress, although with some reservations, has been achieved, by passing a law “On free legal assistance”[35]. The law-makers failed to take into account numerous recommendations made by European Council experts,[36] but, nevertheless, certain positive steps in the area of legal representation have been made:

1. The list of categories of individuals entitled to legal assistance was broadened. Specifically, all the persons detained through administrative and criminal procedure, and individuals in custody have been granted the right to legal assistance. It will help to do away with systematic violations of right to defense, referred to in the decisions of the European Court of Human Rights (see above).

At the same time, it is noteworthy that viability of these provisions is seriously threatened, as militia officials are not required to inform the legal assistance Centers about detainees, if a detained individual “defends him/herself personally”[37]. It will lead to manipulations and preservation of status quo, when a person is forced to sign a refusal from legal assistance, which is a violation, also noted by the European Court of Human Rights.

2. The principles of attorney pro bono operation within the system of free legal assistance are spelled out, although not directly, in the law. It is the Concept of the free legal assistance system in Ukraine[38] that envisages that “relations between attorneys and the state in the area of secondary free legal assistance should be based on voluntary participation of attorney in providing such assistance and on the contract between attorneys and state”. The law envisages tenders, contracts and agreements signed on the voluntary basis by both parties.

The voluntary principle in providing free legal assistance is one of the largest achievements of this reform. First, it provides the Bar members with the chance to influence the system and its funding. Second, as free legal assistance was not available till now, its availability can also contribute to other reforms, e. g. more efficient criminal action, decrease in number of people arrested and held in custody, reduction in number of groundless charges etc.

3. The system of free legal assistance management, absent in Ukraine for 20 years, has been set up. Despite the criticism of the proposed system, the existence of competent management of free legal assistance gives hope that it will eventually become efficient.

4. The quality of free legal assistance still leaves much to be desired. The reform, therefore, conations provisions for its improvement. The intentions of the state to comply with article 6 of the Convention, i.e. not only appoint an attorney, but also ensure efficient defense, is most laudable[39]. On the other hand, the quality assurance can entail some threats to the independence of Bar members. That’s why the bodies in charge of the system should give heed to the principles of independence and self-sufficiency of the attorneys in legal representation.

One can conclude that the Ministry of Justice is facing a very ambitious task of implementing this Law in practice. The situation in the offices of free legal assistance operating in Bila Tserkva, Kharkiv and Khmelnitsky is most complicated indeed.

Today the practical aspects of the Law implementation give grounds for concern. In 2012 state budget should allocate 1 855.7 hryvnas “for the purposes of organizing public legal assistance”[40]. Considering that actual tariff for legal assistance amounts to 25,1 UAH/hour, 73 932 hours of legal assistance should be funded in 2012.

However, the analysis of only three categories of people, entitled to free legal assistance, shows that planned funding is inadequate, to put it mildly.

For example, under the court statistics,[41] 12.2 thousand cases of juvenile delinquents have been heard (article 14 §1(7) of the Law), 40.4 thousand persons were taken in custody
(article 14 §1(6) of the Law) and 66,5 thousand persons were taken under administrative arrest (article 14 §1(4) of the Law) in 2010. Totally it amounts to 119.1 thousand cases, the parties to which are entitled to free legal assistance. If we add those, detained under administrative and criminal proceedings, we will come out with a figure of at least 350–400 thousand persons entitled to free legal assistance; the intended funding will cover 10–15 minutes of free legal assistance in each case.

Considering the acting system of legal assistance one can analyze the practice of free legal assistance offices operating in Bila Tserkva, Kharkiv and Khmelnitsky. Attorneys of these offices spent altogether 27 600 hours of working time assisting their clients in 2010. Even if one assumes that the offices meet the need for legal assistance in their respective cities, it means that 37% of the working hours, which the state intended to fund in 2012 in the whole country, have been spent in these three cities alone.

One should keep on mind that the Law stipulates the setting up of free legal assistance centers in each oblast’ center by January 1, 2013, which entails capital investments and other expenditures.

If legislator does not change the approach to free legal assistance funding in the state budget for 2012, it is hard to believe that the system will be viable or radically reformed.

4. Presumption of innocence

The right not to incriminate oneself is a part of presumption of innocence. However, there are still frequent occurrences when a person is first gives testimony as a witness and then this testimony is used against this person.

The system of remanding cases to courts for further investigation can also be classified as violation of the presumption of innocence.

Number of criminal cases remanded to courts of the first instance[42]

No.

 

Indicators

 

2007

 

2008

 

2009

 

2010

 

І six months 2011

 

1.

 

Number of criminal cases heard in courts(including cases remanded by the prosecution under article 232 CCP of Ukraine and excluding the cases filed on the aggrieved party motion)

 

185 773

 

181 415

 

181 501

 

196 135

 

93 251

 

2.

 

Cases remanded to courts of the first instance for further investigation (articles 246 and 281 CCP of Ukraine) (excluding the cases filed on the aggrieved party motion)

 

6 858

 

5 751

 

4 870

 

5 086

 

2 293

 

% of the total number of criminal cases which ended in criminal proceedings by public prosecution

 

3,69

 

3,17

 

2,68

 

2,59

 

2,46

 

3.

 

cases remanded to courts under article 2491 CCP of Ukraine

 

1 444

 

1 250

 

950

 

886

 

353

 

% of the total number of criminal cases which ended in criminal proceedings by public prosecution

 

0,78

 

0,69

 

0,52

 

0,45

 

0,38

 

4.

 

Revoked from the courts by prosecution under article 232 CCP of Ukraine

 

2 873

 

1 826

 

1 393

 

1 281

 

450

 

% of the total number of criminal cases which ended in criminal proceedings by public prosecution

 

1,55

 

1,01

 

0,77

 

0,65

 

0,48

 

5.

 

In total criminal number of cases remanded to courts or revoked from the courts by prosecution (excluding the cases filed on the aggrieved party motion)

 

11 175

 

8 827

 

7 213

 

7 253

 

3 096

 

% of the total number of criminal cases which ended in criminal proceedings by public prosecution

 

6,02

 

4,87

 

3,97

 

3,70

 

3,32

 

6.

 

Number of persons, with regards to whom decisions (rulings) for remand of cases for further (pretrial) investigation were nullified after appeal.

 

2 029

 

1 959

 

1 801

 

2 137

 

1 172

 

7.

 

Number of decisions concerning violations of law in the course of investigation and pretrial discovery

 

2 348

 

2 452

 

1 986

 

1 989

 

904

 

 

Negligibly small number of acquittals is another serious problem related to presumption of innocence. This situation can be characterized as a legacy of Soviet era, when criminal proceedings were inquisition-like, their competitiveness was limited, especially at pretrial stage, there existed an institute of additional investigation (if the evidence of guilt is insufficient, the courts often remand the case to the investigation bodies for “further action”, and the case is often closed without verdicts of acquittal. The judges are still reprimanded for “not-guilty” verdicts, which can become ground for prosecutor’s office investigation.

Number of “not-guilty” verdicts[43]

Year

 

Number of persons granted the verdict of “not guilty” by local courts

 

Number of persons, who on the motion from the appellation body, received a new verdict, as the groundless verdict of “not guilty” has been nullified

 

2008

 

672

 

12

 

2008

 

539

 

8

 

2009

 

579

 

13

 

2010

 

661

 

15

 

 

In 2010 the number of acquittals increased to 661, 15 of which were nullified by the appellation body with a new verdict and 66 (26 — in the first half of 2011) were invalidated, while the case was remanded for the additional investigation. We do not possess the data for 2011.

5. Specific guarantees of just criminal process

5.1. Regulations concerning evidence

There are no clear or well-defined rules on evidence in the system of national justice. However, due to the efforts of the European Court of Human Rights, the national bodies have to elaborate certain regulations concerning evidence.

Under the ruling of the European Court in the case Leonid Lazarenko vs. Ukraine[44] The Supreme Court of Ukraine invalidated the court decision sentencing the claimant to life imprisonment. The Supreme Court referring to the European Court findings, pointed out that “the violations in question were not proved or assessed legally and did not entail passing of respective decision at the court hearing and case re-consideration by the cassation court, despite the fact that L.Lazarenko more than once pointed at the violations of his right to defense, in particular, in cassation claim. The use of claimant’s testimony, obtained in violation of right to defense, for the benefit of prosecution, is in the Court’s classification, a violation of right to fair trial as spelled out in article 6 of the Convention, as this testimony was used for conviction and became the basis for pressing charges. The Court ruled that the use of the claimant’s testimony, appellation court attitude to it, court response to Lazarenko’s appeal against unlawfulness of the way the evidence was obtained, has irreversibly restricted claimant’s right to defense, regardless of how this evidence affected his conviction, or what the claimant’s response might have been if he had had a defense attorney, or whether he could use the attorney’s services later, or what means of competitiveness were used in the further action. The Court believes that the violation of right to fair trial, discovered by analyzing the circumstances of the case, can be duly amended by a new trial, review of the case or reopening of the case on claimant’s motion.

Therefore, proceeding from the factual and legal circumstances The Supreme Court of Ukraine considers that the rulings in criminal case L.Lazarenko vs. Ukraine cannot remain in force, but shall be nullified. The violations under analysis could have been clarified, legally classified and amended while the case was considered on its merits. However it never happened. The nature (content) of the violations, defined by the Court, their legal meaning, stage of action, at which they occurred and could have been amended, claimant’s status, caused by these violations, possible way of restoring the infringed right give grounds to believe that justice can be restored by the new court hearing. At this stage presumption of innocence would be applicable to L. Lazarenko and the claimant would be able to exercise his right to defense, based on arguments, presented in the claim, in due order, defined by Code of Criminal Proceedings of Ukraine, and the court would ensure this right”.[45]

The court decisions in Kornev’s case were invalidated in the similar way. Referring to the ruling made by the European Court in the case Kornev and Karpenko vs. Ukraine the Supreme Court point out that[46],

“the European Court in paragraph 56 of its ruling found that testimony given by witness V.Shcherbak were crucial for the case, as she was the only person who directly participated in drugs purchase from the claimant and could testify that he sold her the drugs. The European Court also ruled that the claimant and his lawyer were not given an opportunity to interrogate this witness at any stage of court proceedings, even as an anonymous witness, while the national courts based their decisions on her written testimony, submitted in the course of pretrial investigation. The ruling underlined that the authorities ignored the need to guarantee the balance of interests of all parties concerned, and, specifically, witness “Shch.” interests…

Proceeding from the factual and legal circumstances The Supreme Court of Ukraine considers that the rulings in criminal case D.Kornev vs. Ukraine cannot remain in force, but shall be nullified. Taking into account the stage of action when violation was committed, and the fact that it can rectified at the hearing of the case on its merits, the case should be remanded for the new hearing to the court of first instance.”[47]

Thus, Supreme Court of Ukraine ruled that the testimony given by the defendant as a result of manipulation with the gravity of felony should not be used in the investigation. It means that the testimony, obtained from the defendant in the case of aggravated premeditated homicide, without his attorney present, cannot be used in the case, if formally he was charged with lesser offense.

The witness’s testimony, obtained in the course of pretrial proceedings cannot be used either, if a defendant was not given the opportunity to question the witness in court (even with observance of all the security measures).

Besides, the Constitutional Court of Ukraine passed a decision concerning acceptability of evidence. In the case, filed on the motion of Security Service of Ukraine, the Court, giving official interpretation of part 3 article 62 of the Constitution of Ukraine, decided that charges cannot be based “on factual data, obtained as a result of operative-investigative actions of official investigator, in violation of constitutional provisions or due order established by the law, or received by specific actions aimed at their collecting and registering by means, stipulated in the law of Ukraine “On operative investigation activity”, by the person not qualified to perform these actions”.[48]

As the language of this Court decision is rather non-specific, it is hard to foresee possible practical consequences of its implementation, but, anyway, it is good to have certain criterion which can be instrumental in assessing the acceptability of evidence, and, specifically, “the purposefulness of action”.

5.2. Other issues

In Blahoy’s case the European Court raised the question of whether the situation when pending criminal case is renewed by the prosecutor’s office is in line with the requirement of article 6 of the Convention. A similar question was asked in relation to article 5 of the Convention in Korniychuk’s case.

Such arbitrary actions of the law-enforcement bodies are persistent problem of criminal justice. They permit the said bodies to hold anyone in suspense for practically infinite time, closing and re-opening criminal proceedings.

5.3. Draft Code of Criminal Procedure

In 2011 rather significant changes were introduced into the draft code developed in the years 2006-2009 by the working group of the National Committee for the strengthening of democracy and supremacy of law. Some changes helped to improve the draft code language, although it still has a lot of unnecessary bureaucratic formulations, while other amendments change substantially the former concept of criminal justice.

One of the greatest faults of the current version of the draft code is the cancelling of jury. Although the words “jury” remains in the text, it means “public assessors” — a concept, well-known from the Soviet times. And the competence of this “jury” is restricted to the cases where the defendant faces imprisonment.

Renewing the institute of “public assessors”, whose inefficiency was time-proven, seems most odd. Moreover, in the situation, when the system of justice has no public trust, the jury trial had a chance of becoming an instrument of restoring public trust and control over judiciary system. We share the conclusions issued by European Council experts in this regard:

“A jury trial paid important role in setting up modern systems of criminal justice, in particular, in safeguarding the independence of judiciary power and in making trial more significant. Thus, it doubtless helped to strengthen procedural guarantees for the defendant, having created a model of competitive trial. At the same time it reinforced the principles of oral trial, directness and equality of parties in the court proceedings. Existence of jury had great influence on various court proceedings, presentation of facts, norms of exclusion of evidence and ensuring the rights to defense.

In the systems, where democracy is not rooted deeply enough and needs support, the jury trial can be regarded as very useful institute for eliminating or reducing the risks which threaten judiciary power and its independence. Similarly, within the system which is moving away from the “Inquisition” methods and towards competitive court proceedings, the jury trial will push forward the transformation in the direction of oral concentrated trial by impartial judge, where the parties play decisive role in presenting the evidence, and finally, in the trial outcomes. Therefore, the restrictions, imposed on the jury, should be revised, as presently the jury trial is warranted under article 378 of the draft code only on the defendant’s motion in criminal cases, entailing life imprisonment”[49].

The new version of the draft code also empowers the prosecution with more competences, which can lead to abuses as in the former version they were the prerogative of judiciary power only, e.g. continuation of investigation or burden of proof. The rules of argumentation, without which competitive court proceedings are impossible, are practically taken out of the new version, so that judge’s discretion remains only criterion for the assessment of acceptability of proof.

6. Execution of the national courts’ decisions

The rulings of the national courts are not executed.

In November 2010 the new version of the Law “On executive action” was passed. It broadened the rights of state executor and strengthened the responsibility of the debtor, but the extent of execution of court decisions remained almost unchanged.

The work overload of state executors is one of the main reasons for undue and delayed execution of court decisions with regards to private debtors. Each of the executors has several hundred decisions for execution, and sometimes an execution of just one decision might take the whole day. Beside executive functions, the executor has to represent executive service in courts, respond to complaints etc.

The fact that the state and its institutions and entities are serious debtors themselves does not help in resolving the problem.

In December 2010 the system of bodies in charge of courts’ decisions execution was reorganized. State Executive Service was set up. However its practical operation started only in the second half of 2011.

Unfortunately, by February 2012 its site contained no summarizing information concerning the execution of courts’ decisions in Ukraine.

7. Compliance with rulings of international bodies

Compliance with rulings of international bodies specifying the breach of international obligations is an integral part of adherence to international treaties, ratified by the country.

This year, however, the rulings of international bodies were lamentably disregarded, in part, due to imperfect legislation, and, in part, due to rather arbitrary interpretation of law by the judges of higher judicial bodies.

In 2011 Committee against torture (a body set up under the International pact for civil and political rights) passed three decisions. Two of them, among others discovered the violation of article 14 of the Covenant, pointing out that the claimants were convicted as a result of unfair trial — see cases Shchytka vs. Ukraine and Butovenko vs. Ukraine.[50]. The unfair rulings, therefore, could have been invalidated as it happened in Lazarenko and Kornev cases.

However the Highest Specialized Court prevented Viktor Shchytka’s petition on court decision review, from reaching Supreme Court of Ukraine, stating in its resolution of November 3, 2011[51], that it does not recognize Committee for human rights as international judiciary body under article 400-12 of Code of Criminal Proceedings. We do not have any information with regards
to Butovenko case, but it is most probable that scenario will be more or less the same.

It is hard to say whether the law-maker really wanted to eliminate the possibility of applying article 400-12 of CCP to the decisions of the Committee for human rights. In any case, the decision should have been made by the Supreme Court of Ukraine and not by the Highest Specialized Court in assessing the admissibility, since in this issue it has very limited competence, i. e. to verify petition compliance with formal requirements for such petitions.

Besides, the legislation and its practical implementation make it very difficult for a person, whose conviction was recognized as unjust, to submit a petition on judicial review, even if it warranted by the European court decision.

First, the Highest Specialized Court interpreted the law in a way that deprives such a person of the right to legal assistance, having prohibited any action through attorney. This practice is widely spread in criminal justice contrary to the clarification provided by the Highest Specialized Court Plenum with reference to the articles 353–360 of the Code of Civil Proceedings of Ukraine[52].

Such approach to the right of legal representation, combined with the fact that petitioners more often than not are incarcerated, make other requirements look like a mockery, e.g. supplying “duly notarized” copies of disputed decisions, “duly notarized” authentic translation of the European Court ruling and correspondence with the Court with regards to the ruling’s status as final etc.[53]

8. Recommendations

1. Changing the mechanism of forming the Supreme Council of Justice: in particular, all its members have to be elected by judges’ congress; or abolishing this body with transfer of its functions to the bodies in charge of independent setting up a judicial power body.

2. Broadening the competences of the Supreme Court of Ukraine; in particular, providing opportunity for all the litigant parties to appeal to it in specific cases of competences conflict, different interpretation of material or procedural law norms. Granting the Supreme Court of Ukraine competences to resolve the issue of case reviews.

3. Ensuring sufficient state budget funding for the programs aimed at providing free legal assistance.

4. Accelerating the adoption of new Code of Criminal Proceedings taking into account EC and national experts’ recommendations.

5. Introducing changes into the law, which will preclude the use of testimony obtained outside the court without the defendant’s attorney present.

6. Accelerating the passing of new law on the Bar, which envisages setting up professional lawyers’ association with mandatory membership and respective provisions, guarantying timeliness and high quality of legal assistance.

7. Amending hearing procedure for the cases involving administrative infringements, setting up guarantees for free trial, envisaged by article 6 of the Convention for human rights protection.

8. Introducing changes to procedural legislation and law on executive action, which would ensure mandatory entry of all court decisions into the Unified State Registry of court decisions.

9. Introducing changes into the Code of Criminal Proceedings of Ukraine (and/or envisage respective approaches in draft CCP), with the goal of simplifying the court review procedures for the rulings which have come into force, as a result of international legal bodies’ decisions.

10. Clarifying in the law or its respective interpretations by higher court institutions that the international bodies entrusted with resolving private complaints are the international legal bodies entitled to initiate the court review of the rulings passed.

11. Providing legal support for the operation of independent experts and expert offices.

12. Developing and adopting legal norms defining acceptable terms for case settlement. Envisaging the possibility of recompensing the individuals whose rights were violated due to non-adherence to the defined time frame for cases settlement.

13. Introducing a State Budget line which will allocate funds for execution of Ukrainian courts’ decisions, under which the state, its authorities, governmental institutions and offices are the debtors.

 

 

[1]  Prepared by Arkady Bushchenko, attorney, executive director of the UHHRU and Volodymyr Yavorsky, UHHRU Board member.

[2]  See e. g. First judges election under the new law; Did the sieve crack? Roman Kuibida,Center for Political and Legal Reforms http://www.pravo.org.ua/index.php/2010-03-07-18-06-07/laworganisandstatussuddiv/249-2011-05-25-10-17-07.

[3]  Ukrainian judges obsequiously obey authorities’ instructions. Roman Kuibida, Center for Political and Legal Reforms http://www.pravo.org.ua/index.php/2010-03-07-18-06-07/laworganisandstatussuddiv/422-2011-11-26-10-12-19.

[4]  See. http://www.unian.net/ukr/news/news-473030.html.

[5]  See. Yevhen Korniychuk out of the office // “Kommersant Ukrainy” newsparper No. 207 (1481), 12.12.2011, http://www.kommersant.ua/doc-rss/1834394.

[6]  See in detail: President signed the law on loyal Supreme Court, Roman Kuibida, Center for Political and Legal Reforms http://www.pravo.org.ua/index.php/component/content/article/464-2011-11-10-16-28-31.

[7]  Deputy head of the Prosecutor’s General office Mykhailo Havrylyuk held a briefing; info from the Prosecutor’s General PR office of November 7, 2011. http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id= 98834&fp=31; Corruption scandal in the SCU: is power getting ready to the Court Head elections? UNIAN, 08.11.2011, http://www.unian.net/ukr/news/news-467161.html; Cynical seizure of power by authorities goes on //
Ukrainska Pravda, November 09,2011. http://www.pravda.com.ua/articles/2011/11/9/6743901/.

[8]  See also. Operation “Supreme Court of Ukraine” Dzerkalo tyzhnya, Olexander Prymachenko, No. 45, December, 09.2011, http://dt.ua/LAW/operatsiya_verhovniy_sud_ukrayini-93476.html; Supreme Court of Ukraine: power tricks and laws of nature // Ukrainska Pravda, December 12, 2011 http://www.pravda.com.ua/articles/ 2011/12/12/6831251/.

[9]  Case without crime // Law and business No. 47 (1034) 19.11—25.11.2011, http://zib.com.ua/ua/6302-kriminalnu_spravu_stosovno_sergiya_lunina_zakrito.html; “Classified” charge// Law and business, No. 38 (1025) 17.09.2011–23.09.2011, http://zib.com.ua/ua/5081-zasekrechene_obvinuvachennya.html.

[10]  Decision of October 15, 2009 available in Ukrainian http://ovu.com.ua/articles/5613-sprava-yuriy-mikolayovich-ivanov-proti-ukrayini-za.

[11]  See draft law No. 9127 of September 8, 2011 “On state guarantees for compliance with courts’ rulings”, http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?pf3511=41092, а також критика законопроекту від УГСПЛ: http://helsinki.org.ua/index.php?id=1316774325.

[12]  See here #P9032_536470.

[13]  See in more detail: Prosecutor general office wants to punish judges for their adherence to the Constitution and European Convention for Human Rights Protection 28.07.2011 http://www.helsinki.org.ua/index.php?id=1311841868; Administrative pressure on judges continues. Center for legal assistance, A. Bushchenko, attorney http://hr-lawyers.org/index.php?id=1317139884; Unacceptable pressure on judges exerted by the Prosecutor general office GPO appeals to SJC: http://hr-lawyers.org/index.php?id=1311595142

[14]  See more: New attempts to influence judges Новые попытки давления на судей, Center for legal assistance http://hr-lawyers.org/index.php?id=1321538484

[15]  Kuzmin continues verifications in the Supreme court // Ukrainsla Pravda, November 16, листопада 2011, http://www.pravda.com.ua/news/2011/11/16/6759259/

[16]  Інформація про притягнення суддів до дисциплінарної відповідальності (рішення за 2011 рік), http://vkksu.gov.ua/ua/distsiplinarne-provadjennya/informatsiya-pro-prityagnennya-suddiv-do-distsiplinarnoi-vidpovidalnosti/informatsiya-pro-prityagnennya-suddiv-do-distsiplinarnoi-vidpovidalnosti-2011/

[17]  На суддю наклали стягнення за противників Лукашенка // Закон і бізнес, No. 48 (1035) 26.11.2011–02.12.2011, http://www.zib.com.ua/ua/6510-suddya_yaka_vidmovilasya_sankcionuvati_trimannya_pid_vartoyu.html.

[18]  Is Pretrial detention center needed? // Law and business, No. 31 (1018) 29.07—06.08.2011, http://www.zib.com.ua/ua/4201-bez_sizo_ne_obiytisya.html.

[19]  “Crime of punishment” // “Dzerkalo tyzhnay”, No. 4, 03 лютого 2012 року, http://dt.ua/LAW/zlochin_poka­rannyam-96699.html.

[20]  Ibid.

[21]  Head of SCJ Kolesnychenko “Breach of judge’s oath is not a crime // Censor NET, 06.04.11, http://censor.net.ua/resonance/163884/glava_vsyu_kolesnichenko_narushenie_prisyagi_sudi__eto_esche_ne_kriminal

[22]  See in more detail: Judge Zvarych caroled 10 years in jail. // “Tyzhden”, September 20, 2011 року, http://tyzhden.ua/Politics/31150.

[23]  See Court corruption as it ishttp://blogs.pravda.com.ua/authors/ashevchenko/4ed5234ab8a58/.

[24]  See petition text: http://hr-lawyers.org/index.php?id=1317136477, аn its brief analysis : http://hr-lawyers.org/index.php?id=1317139884.

[25]  Checking economic activity of the Highest Economic Court 24.05.2011, http://www.ac-rada.gov.ua/control/main/uk/publish/article/16736947

[26]  Yaremenko v. Ukraine, No. 32092/02, 12 June 2008

[27]  Lutsenko v. Ukraine, No. 30663/04, 18 December 2008

[28]  Shabelnik v. Ukraine, No. 16404/03, §57, 19 February 2009

[29]  Nechiporuk and Yonkalo v. Ukraine, No. 42310/04, 21 April 2011

[30]  Balitskiy v. Ukraine, No. 12793/03, 3 November 2011

[31]  Balitskiy v. Ukraine, §§51 та 54

[32]  Zagorodniy v. Ukraine, No. 27004/06, 24 November 2011

[33]  Ruling of the Constitutional Court of Ukraine of November, 16, 2000 in the case concerning the right to free choice of defense attorney. http://zakon2.rada.gov.ua/laws/show/v013p710-00

[34]  Zagorodniy v. Ukraine, §55

[35]  http://zakon2.rada.gov.ua/laws/show/3460-17/print1320311424269317

[36]  http://minjust.gov.ua/0/19278

[37]  http://zakon2.rada.gov.ua/laws/show/3460-17/print1320311424269317, chapter IV of the law, p. 3

[38]  Presidential Decree of June 9, 2006, No. 509/2006, http://zakon1.rada.gov.ua/cgi-bin/laws/main.cgi?nreg=509/2006

[39]  Artico v. Italy, 13 May 1980, §33, Series A No. 37.

[40]  Draft State Budget of Ukraine for 2012 http://w1.c1.rada.gov.ua/pls/zweb_n/webproc4_1?pf3511=41157

[41]  Analysis of administration of justice by the courts of general jurisdiction in 2010 (source-court statistics), http://www.scourt.gov.ua/clients/vs.nsf/0/4034B350D7EB0B50C22578AF00236E6D

[42]  Data provided by State court administration of Ukraine for 2007–2011. Available on official site http://www.court.gov.ua. Cases heard in appellation courts and local courts of general jurisdiction and were remanded for further investigation or revoked by the prosecutors (excluding those filed on the aggrieved party motion). Data do not cover the Supreme Court of Ukraine operation.

[43]  Data provided by State court administration of Ukraine (http://www.court.gov.ua/home/). These figures reflect both verdicts which came into force and those which didn’t.

[44]  Leonid Lazarenko v. Ukraine, No. 22313/04, 28 October 2010

[45]  http://www.reyestr.court.gov.ua/Review/16938373, see also http://hr-lawyers.org/index.php?id=1309863250

[46]  Kornev and Karpenko v. Ukraine, No. 17444/04, 21 October 2010, http://hr-lawyers.org/index.php?id=1288179865

[47]  http://www.reyestr.court.gov.ua/Review/16938317, також http://hr-lawyers.org/index.php?id=1313410341

[48]  Decision of October 20, 2011, Case No. 1–31/2011, http://www.ccu.gov.ua/doccatalog/document?id=160046

[49]  Conclusions on the draft Code of Criminal Proceedings of Ukraine, Strasbourg, November 2, 2011, DG-I (2011)16, http://www.coe.kiev.ua/news/2012/01/Opinion%20on%20Draft%20CPC%20UA%20Ukr.pdf.

[50]  http://hr-lawyers.org/index.php?id=1321567157, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/450/11/PDF/G1145011.pdf?OpenElement

[51]  http://hr-lawyers.org/index.php?id=1321523619

[52]  Resolution No. 11 of September 30, 2011 року, http://hr-lawyers.org/index.php?id=1319116281

[53]  See in more detail http://hr-lawyers.org/index.php?id=1317129918

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