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Human rights in Ukraine 2011. V. THE RIGHT TO A FAIR TRIAL

   

[1]

1. General comments

On July 7, 2010, the Law “On the Judicial System and Status of Judges” made changes to the Civil Procedural Code of Ukraine (CPC), under which the judges started issuing court orders for recovery of outstanding claims of companies that provide housing and communal services. During the follow-up period over 70,000 court orders for claims of enterprises that provide housing and communal services (hereafter in this text: housing and communal services) were issued. The changes worsened the condition of realization of the right to a fair trial in cases where judges issued such court orders. In the section II of the CCP “Mandatory Proceedings” the spirit and the letter of changes aimed at prioritizing businesses, not citizens; actually they legalized the principle of presumption of guilt of the consumer (there also emerged a byword “presumption of rendering service by a business”); the positions of protection of legitimate rights of the consumer were artificially transferred from the field of substantive law to the field of procedural law.

The social context of such changes of the rules is very clear: the housing and communal sphere and relations in it are too intricate to implement the Mandatory Proceedings, which does not consider the issue in essence and turns into a procedure of lapidary tackling the issue for service applicant’s benefit (manufacturer or rather producer).

Legally, the issue of realization and protection of public services consumer in a market economy has not been elaborated upon in the national legislation, and implementation of mandatory process holds the development of market relations and genuine reforms of municipal engineering away. The legislation of other countries contains no analogues of such standards of mandatory process.

The mandatory process related to the legal relationship in the field of housing and communal services violates many aspects of the right to fair trial: the presumption of innocence, access to justice, and right to protection. Of course, the human dignity is offended and rights to property and freedom of contract are violated. The access to legal assistance and right to know their rights and responsibilities in dealing with municipal services become vital for the socially vulnerable citizens in these situations. According to human rights organizations, more than 50% of the orders with which people turn to NGOs for assistance in restoration of their violated rights are usually canceled for reasons of misjudgment. The vast majority of canceled orders contain not one but several violations of human rights. These violations will always create a situation opposing the rights and legitimate interests of the citizen and in favor of public utilities.

This section discusses the issues of access to justice and rights to protection.

2. The right of access to justice

2.1. Lack of information for a citizen

The violation of this right begins with the absence of public-oriented information on:

—  The fact of receipt by a court of application for issuance of a writ against her/him;

—  The content of the petition and availability of evidence of the outstanding amount in it;

—  The fact of issuing a court order for the recovery of debt.

The absence of such information under conditions of certain court actions concerning people created for the latter an unfavorable situation, which sowed discord and stress in their lives. Below we cite examples that show various forms of concealment of part or of all information from the public while they become objects of actions associated with certain legal relationships or their lack or uncertainty, and people get into a situation of open violation of their rights.

Example 1: citizen M. G., resident of Luhansk, suddenly got a resolution of Artemivsk Regional Department of the State Executive Service (DSES) of 23.09.11 about the initiation of execution pursuant to court order No. 2n/1203/1166/2011. This writ was issued on 19.05.2011 pursuant to the application of urban public utility “Zhytloservis.” However, M. G. did not receive either the court order, or the collector’s application with supporting documents, though she resided at home and did not leave her residence.

The citizen regarded the fact of issuing the court order by default as a violation of her right to justice, and she disagreed with the amount of debt specified in the Resolution about the initiation of proceedings. So she turned to Artemivsk District Court of Luhansk requesting to hand her the writ. They handed her the writ, but with infractions, that is directly in court without the collector’s application and without the attached copies of documents showing the amount owed. In the absence of relevant information citizen M.G. had to submit her affirmative plea to the court requesting to cancel this order, and the affirmative plea to the state executive service to suspend the proceedings.

On 06.12.11, the judge adopted a resolution on the abolition of this court order.

The employees of UPU “Zhytloservis” took advantage of the lack of complete and timely information and related complications related to the access to justice by the citizen and applied additional moral pressure. Simultaneously with the decision to cancel the court order in December 2011 M. G. received a letter from the UPU “Zhytloservis” without signature, without seal, which contained the requirement to indemnify — allegedly by a court decision on 5.19.11 (the date of the issuance of this order rather than cancellation) her debt for the maintenance of buildings, including threats with executive service and property inventory.

Example 2: On 04.12.2011 citizen S. O., resident of the city of Luhansk, found in her mailbox an envelope with a stamp of Artemivsk District Court. In the same envelope there was a piece of paper signed by the judge; the message included the case No. 2n-1019/2010 and information that “the Artemivsk District Court, Luhansk, send her a copy of a court order of 22.11.10 together with a copy of the collector’s application and a copy of enclosed documents.” However, the envelope neither copy of the court order nor a copy of collector’s application with copies of enclosed documents.

As S. A. made out, the communal enterprise “Zhytloservis” applied for the recovery of her debt concerning payments for the maintenance of houses and buildings and neighboring territory amounting to UAH 2,513.10, with which the citizen disagreed, because she did not receive services for this amount .

On 07.12.10 S. A. filed the Head of Artemivsk District Court a complaint stating that:

a) violation of Part 1 of Art. 104 of CPC of Ukraine three times:

—  she was not sent a copy of a court order;

—  the letter was sent without notification of delivery;

—  by date on the envelope and date of court order it is evident that the copy of the court order was sent to the debtor not on the day after adoption of order, but with a delay of 8 days;

b) breach of Part 2 of Art. 105 of the CPC of Ukraine, namely, the debtor was not sent a copy of the application for the issuance of order with enclosed documents.

The court order was canceled on 02.07.2011.

The lack of legally guaranteed information about the writ made the citizen to exert herself to obtain this information which complicated the access to justice for her.

In both cases, the court employees showed negligence providing information to citizens about the fact of issuance of the court orders; the public utilities did not directly provide consumers with any information about filing the complaint. In both cases, the citizens learnt about the issuance of the court order with delay.

In both cases the right to information as a condition for fair trial was violated.

2.2. The lack of opportunity to a fair and public trial
for indebtedness of the consumer of urban utilities

Under the law, in the case of mandative proceedings the review of appeal for the recovery of debt is held without the participation of the consumer. This does not take into account the situation when the consumer may have no debts to the enterprise that provides housing and utility services, or her/his debt may be less than that which is drawn by the applicant company.

According to public reception of the human rights organizations, on the average the enterprises drew debt by 30–50% above the real amount or that which is recognized by law.

In all 100 cases of analyzed court orders the application of utility enterprises were considered by the judge alone. Formally this procedure met the standards of Part 2 Art. 102 of the CCP, but in fact the citizen was estranged from her/his right to a fair hearing, judicial protection of her/his rights and legal interests.

As a rule, the citizens received a copy of the finished court order, and only after that they could be present when considering their applications for cancellation of court orders. But, according to the complaints of citizens, this consideration was conducted formally. Moreover, during mandatory process, as compared with litigious procedure, the judge ignored the norms of laws that protect human rights in housing and communal sphere. In particular, there is a widespread practice of ignoring by judges of the unquestioning character of demands of the applicant. The paragraph 3, Part 2, Art. 98 of the CPC of Ukraine, requires that “the application shall contain: ... 3) the requirements of the applicant and the circumstances on which they are based”; it is often ignored in mandatory trial on the stage of reception by the judge of the documents from the applicant or consideration of the application for issuance of a court order.

According to public reception rooms of human rights organizations, during the mandatory proceedings, in most cases, four typical violations of unquestionioning character of the applicant’s requirements turned out regarding: a) the amount of debt; b) the fact of services and confirmation of their good quality; c) proper applicant; and d) appropriate debtor. The definition of criteria of the unquestionioning character of requirements is an important condition for achieving justice in mandatory process.

Example 3. Citizen M. T., resident of Luhansk, received the delayed copy of a court order for the recovery of her debt payment for the maintenance of buildings and structures and adjacent areas to the tune of UAH 4,323.87. The order was issued by the judge of Leninsky District Court of Luhansk on 28.03.11 in case No. 2n-689/11 in answer to the application of utility enterprise “Standard-Luhansk”. M. T. applied to cancel the order in legal term. During the application review on 23.05.11 the representative of “Standard-Luhansk” Utility requested to adjourn the court to prepare an explanation to his statement “about the issuance of the court order.” Thus he confirmed that his evidence is not indisputable. At the next session on 25.03.11, after consideration of objections from the utility to an application for cancellation of the court order, the court order of 30.05.11 was canceled.

This case demonstrated that the question of the unquestionioning character of the applicant’s request did not rivet the judge’s attention when he admitted the statement of claim from the utility; however, it came to light during the consideration of the citizen’s application for cancellation of the court order.

3. The right to protection

3.1. Narrowing the rights to judicial protection in mandatory process

Narrowing of the rights to judicial protection was caused by cancellation of previous rules of the CPC of Ukraine in redaction before 03.08.2010 about unconditional cancellation of a court order in case of disagreement with his debtor. Compared with the previous redaction of the CPC, the debtor must justify her/his request for cancellation of the court order, whereas previously the affirmative defense sufficed without justification. For their part, judges are trying to recognize the justification provided by the citizen insufficient and keep the current court order.

The idea of ​​court orders was discredited.

The sense of court orders is to simplify the procedure of satisfaction of apparent requirements of the weaker party against the strong one. There is a number of similar court orders for recovery of wages, for recovery of alimony, etc. concerning the protection of the individual against the stronger party: concerning a child against an adult or of an employee the production administration. The housing and utility services do not fit into the logic of protection of the weaker member of society against the stronger one or before the whole production or state apparatus. The law did not give the citizen the right to file the application for issuance of writ concerning public enterprises in such cases as failure to provide adequate quality of service or ungrounded disconnection of service. On the contrary, the law empowered the housing and utility companies to apply against a weaker and unprotected party, i.e. consumer. Violated were such basic principles of justice, as legality, equality of all participants in a trial before the law and the court, provisions for the proof of guilt, contested procedure and freedom to provide in court their evidence and to prove their credibility in court.

The low legal awareness of the employees of the housing and utility services superimposes inadequate legislation and is supplemented with imperfect practice. The shortcomings in the application of court orders appear in some cases when the judge joins the utility staffer against the rights and interests of citizens, i. e. the stronger party (the company) makes questionable demands of the weaker party (citizen) which shows violation of human rights of the latter and questionable lawfulness of judges decision.

Much of the above defects of mandatory process do not arise in the action proceedings.

Example 4. On 25.02.2011 the judge of Artemivsk District Court in Luhansk issued the court order upon application of the Luhanskvoda Ltd. in case No. 2n/1203/2391/11r for the recovery of arrears of citizen B. N. in the amount of UAH1,581.21.

Instead of sending a copy of the court order to the debtor within the next 24 hrs, the court sent it with such a delay that B.N. received the copy only 2 months later, on April 22, 2011, from the hands of a neighbor and the mail carrier signed the receipt.

The citizen had to apply to the district court, then to the Court of Appeal to set the time of application for cancellation of the court order.

Besides this violation of rights, another violation was fixed, which is becoming more common in jurisprudence: on 04.08.11, the judge decided to leave the question open claiming that the statement of cancellation of the order shall specify: reference to evidence with which the debtor proves his objection to the plaintiff’s claims. However, the judge did not require the plaintiff to submit evidence against the citizen. First of all the applicant had to provide unquestionable proof of his claims to the debtor that would justify the amount owed. In legal literature the conclusiveness is defined as a final and incontestable fact that is recognized by both parties. The citizen put in another application noting that the requirement of the court to add to the debtor’s application any documents that prove the absence of debt is unfounded and does not meet Art. 105 of the CPC of Ukraine.

After six months of citizen’s importuning in court the order was canceled on 12.08.11.

Example 5. Citizen M. I., resident of Luhansk, received a copy of court order and documents attached to about the recovery of his debt for gas supply for nearly 15 years, i.e. for the period from 01.01.1996 till 01.09.2010, amounting to UAH 6661.72 in favor of public JSC “Luhanskhaz.” Together with other payments the total sum of recovering payment made UAH 7187.49. The court order was issued on 05.10.10 by the judge of Kamyanobridsky District Court in Luhansk (Judge No. 1).

On 14.10.10 citizen M. I. applied to cancel the order and stated that in accordance with Clause 2, Part 1, Art. 208 of the CC of Ukraine and Clause 3, Part 2, Art. 21 of the Law of Ukraine “On Housing and utility services” the consumer and contractor have to enter into an agreement while there was no such agreement between the plaintiff and the debtor. According to Art. 267 of the CC of Ukraine, the issuance of the order deprived him of his right, to apply for limitation action.

On 25.11.10 the judge complied with the V. I.’s appeal on the basis that from this statement the court found that there is a dispute between the parties, and abolished the order.

Later in the action proceedings, the case No. 2-289/11 was considered by the Kamyanobridsky District Court. The judge No. 2 tried to ignore the right of citizens to general limitation period, although the plaintiff PJSC “Luhanskhaz” computed the “Calculation of debt” on its own and so determined the amount of debt taking into account the limitation period, i. e. UAH 1,928.31 for the period from 26.11.2007 till 01.11.10.

Therefore, MI was forced to turn to the Court of Appeal of Luhansk Oblast. As a result citizen M. I.’s debt was found to make UAH 1,928.31 for the period from November 2007 to November 2010, the limitation period including. Thus, the amount owed was UAH 1928.31, and not UAH 7187,49.

In this case, the acting proceedings conducted after mandatory proceedings and publicity of the case led to the decision in favor of the legitimate rights of the citizen. This example of collation of acting and mandatory proceedings on the same occasion testifies to the action proceedings as having more in securing justice.

3.2. Ignoring the signs of dispute by the courts of law

The vast majority of court orders are canceled due to the existing dispute about the law because jural relationships between consumer and provider of service in the field of housing and public utilities is based on a contract, and contract (choice of executor, terms of the contract) is a realization of human rights. Therefore, the scope of mandatory proceedings on disputes arising in the provision and receiving of housing and utility services among consumers and service providers which is inadequately expanded to apply to disputes about the law should be narrowed due to declining conditions of restoration of human rights.

It is in terms of signs of a dispute about the right it is worthwhile to pay attention to the following defects of court practice.

The law, strict observance of which prevents possible violations of human rights both in the field of housing and utilities and the right of access to justice, remain beyond the attention of lawyers of public utilities and courts and therefore it becomes possible to breach the rights of citizens while issuing court orders.

The court usually accepts applications not from the providers of housing and utility services, as specified by the Law of Ukraine “On public utilities”, but from manufacturers and service providers to intermediate companies and not to the end-of-the-line consumer. The Code of Civil Procedure does not specify the provider; part 2 of Art. 95 reads: “A person, to whom belongs the right to claim, can apply for a court order issuance.” However, according to the Law of Ukraine “On public utilities” consumer establishes jural relationships only with the provider of services as defined in Art. 1: “the executing or economic agent dealing in providing municipal services to the consumer under the contract.” In accordance with the requirements of Article 21, Part 2, Clause 3 of the Law of Ukraine “On public utilities,” the duty of the economic agent is “to conclude an agreement with the consumer for the provision of utility services specifying the responsibility for compliance with the terms of execution under the typical contract.”

Any contract is the right of parties. The absence — contrary legislation — of properly concluded contract or breach of contract is a dispute about the right. However, the judges accept applications from companies that provide utility services and fail to request a copy of the contract, or a proof of the volume of services corresponding to the alleged debt. The trial in such cases is based on illegal grounds, which they name with the colloquialism “the presumption of rendering service.”

Example 6: Citizen K. A., resident of Luhansk, received a court order issued by a judge of the Leninsky District Court in Luhansk at the request of municipal public utility “Teplokomunenergo” the recovery of debt for 15 years in the amount of UAH 7,380.39 (case No. 2n-360/11).

However, K. A. did not agree with violations of her consumer’s right to establish relationships directly with the provider of services and the right for three years of general limitation period. In her court preference about cancellation of the court order she referred to these circumstances and provided as evidence the following supporting documents:

a) The urban public utility “Teplokomunenergo” has no right to demand payment from the citizen. It is not a heat supplier to her house and apartment. It is only the manufacturer of service, which delivers heat to the “operational boundaries of belonging,” that is only to the foundation of the house, and thus its line of responsibility is only up to the distribution point near the foundation, where the heat carrier is transferred to the executor or the urban utility “Standard-Luhansk”, with which the urban public utility “Teplokomunenergo” concluded the relevant agreement.

b) The urban public utility “Standard-Luhansk” in its turn failed to conclude the contract on supply of heat to the apartment of citizen K. A. The urban public utility failed to submit evidence that it supplied heat to the apartment. The urban public utility dropped the claim.

c) Citizen K. A. enjoys the right to a three-year term of general limitation period, all the more so for several years she did not live in this apartment, being abroad on business, about which she timely addressed an application to the utilities. The court order was canceled.

This is a typical example: wrong applicant, another executive agent, no direct contract with the consumer, inflated debt, and limitation period is ignored. That is, there are signs of a dispute about right.

Example 7. On August 25, 2011, citizen Sh. O., resident of the city of Kherson, in Suvorovsky District Court of Kherson, personally and directly received the court order issued on June 21, 2011 for the recovery of debt in favor of open JSC “Khersongas” in the amount of UAH5179, 77 (case No. 2 “n”-1919/11).

The applicant, open JSC “Khersongas”, concealed the following facts in its application:

a) In 2005, the citizen accumulated the debt for gas. Under the false pretence an employee of open JSC cut off gas supply to the citizen’s apartment without a sound basis, allegedly because of the lead damage. But citizen S. A. twice sent for the representatives of OJSC “Khersongas” to confirm the integrity of lead and thus received two test certificates on the integrity of the lead. Thence there is a long-standing dispute of fact between the contestants.

b) In 2009, the citizen and the OJSC signed an agreement on discharge of debt for gas supply. As of May 1, 2011 the debt was repaid and there is almost UAH30 overpayment compared to scheduled payments. Data on the overpayment for gas were reflected in the calculation provided by the applicant-recoverer at the time of applying. However, the judge did not study or evaluate evidence properly, did not request full information, which was obviously needed for clarification of overpayment-for-gas information. The judge issued an order to the citizen to settle the five-year debt.

After the citizen had applied for cancellation of the court order, the latter was abrogated.

In this case, the applicant concealed from the court the documents that pointed to important factors: the existence of a dispute about the right of citizen to receive services, for a complete restructuring of debt-based contract. The judge absently studied the documents, which permitted to establish the fact of the lack of information provided by the applicant, and hence there emerged the need for in-depth study of the circumstances of the case. Grabbing the opportunity to issue a court order, the applicant decided to exact money from the citizen for the time beyond the statute of limitations. The judge also ignored the law on the limitation period and supported the applicant’s claims that violated the rights of the citizen. Obviously, the court violated the dispositive norm of law.

Thus, there was no fair and complete consideration of the case by mandatory process, and only the efforts of persistent citizen helped to reach the appropriate legal decision.

Having analyzed 100 court orders from different cities of Ukraine, in 92 cases we were unable to find any evidence that the application for a writ contained attached documents that would indicate the applicant’s status as the service provider. That is, the mandatory judicial practice shows that jural relationships among consumers and service providers remain legally unregulated. The utilities conceal this fact from the court and do not provide evidence that they are service providers with all mutual rights and obligations, that is that they have right in action.

The only case of a reference to the fact that there had been an agreement was found in the application of Pavlograd private enterprise “K-P-1”, Dnipropetrovsk Oblast, which carried out maintenance of buildings and structures and adjoining areas. This company put in an application to Pavlograd urban district court for issuance of a court order for debt recovery to the tune of UAH 1,079.88 from citizen F. O., resident of Pavlograd.

In her request to cancel the order citizen F. O. proved that during 10 years she had not received service for such sum, she did not live in this apartment, and added that the applicant’s contract attached to the documents she had not signed and had no idea who had done it. The judge abrogated the writ.

4. Recommendations

1. Improve the legal framework regulating the relations of citizens-consumers of housing and utility services and companies that provide services such as:

a) to amend the Civil Procedure Code of Ukraine:

—  To narrow the grounds for mandative procedure in the case of applications for the recovery of debts for consumed utility services (elimination of provisions of the previous mandative court proceedings for all cases of the said indebtedness of citizens, i. e. exclude Part 3 from Art. 118, and go over to exclusively action proceedings in cases of accumulation of debt beyond the total period of limitation of 3 years, that is to amend paragraph 3) Part 1 of Art. 96 of the CPC of Ukraine;

—  make amendments to Article 104 in terms of clearer legal procedure of handing the citizen (debtor) copies of the court order.

b) to bring into regulation the requirements to ensure unquestioning character of plaintiff’s acting in proceedings for collection of utility debts from consumers; the permissible evidence of amount of indebtedness, belonging of the debtor and creditor in the said mandative procedure.

2. To improve the enforcement of legislation regulating relationships among consumers and utility agents (especially concerning contracts between consumers and service providers, increase consumers’ control over the quality of housing and utility service enterprises, etc.).

3. To expand opportunities for free legal assistance to vulnerable, low-income consumers of housing and utility services.

4. To improve legal education of citizens on these issues.

 

Members of the Panel express their gratitude to Zdir O. H. for her materials which were used in this section.

 

 

[1]  This section has been prepared by: Larysa Zalyvna, Chairman of Luhansk Oblast Public Human Rights Women’s Organization “Chaika”, Nataliya Tselovalnychenko, Chairman of Luhansk Human Rights Group, Serhiy Morozov, Chairman of the Coordinating Council of Public Action “Civic Communal Self-Defense,” Anna Martyniuk, Kherson Charity Care Fund, Denys Hrechko, Charity Fund “Horeniye”, Pavlohrad,
Dnipropetrovsk Oblast.

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