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25.01.2013 | Oleksandr Bukalov

Problems with Translation: On defending the State coffers

   

Oleksandr Bukalov

The Donetsk human rights organization Donetsk Memorial has long followed the hard fate of Ukraine’s State Budget. So as to not remain on the sideline, the organization decided to take a part, so to speak, in its retention.

What is in question is compensation of costs incurred through European Court of Human Rights judges. Recently in just one day through such judgements the European judges cleaned the State coffers of more than 11 million UAH.  Yet any person in their right mind understands that it was effectively not judges of the European Court who cleaned out the coffers, but our officials, including judges who infringed the law in passing judgements.

So how did Donetsk Memorial protect the State budget? The organization wrote a letter to the Justice Ministry on 4 June,   with regard to two European Court of Human Rights judgements - the. cases of Tsygoniy v. Ukraine and Veniosov v. Ukraine.  In the case of Tsygoniy v. Ukraine, because a Ukrainian local court in 2004 issued an order which the European Court found unlawful to remand the applicant in custody, Ukraine paid the applicant 10 thousand EUR. In the case of Venisov v. Ukraine, it paid the applicant 6 thousand EUR because the Central District Court in Simferopol in 2005 remanded him in custody.

We asked “Does the Justice Ministry as the body with the authority plan to take measures for compensation by judges whose unlawful actions cost the State 16 thousand EUR of these costs?  If NOT, then we would ask you to inform us why the Justice Ministry does not consider it necessary to seek compensation from specific individuals who led to these costs”.

The Justice Ministry did not reply.

As it failed to reply to a repeat information request on 2 August 2012  (thanks to  Minister Lavrynovych that he made it clear how his words about the lawfulness of the government’s actions match up to his actions). It was only after the third letter in September sent not only to the Justice Minister, but to the Prime Minister and Prosecutor General, that a response was finally received from the Justice Ministry containing a detailed explanation of procedure in the case of damage caused the public coffers by European Court of Human Rights judgements. However there wasn’t a word about the Crimean judges and the damage which they caused the public coffers (incidentally can one somehow find out their names?)

This battle to retrieve the expense to the State budget, which the Minister is for some reason stubbornly resisting, , inspired us to new creative steps. We sent letters, now also to the President and again to the Prosecutor General’s Office, and to the Prime Minister about the inexplicable (in fact explicable) efforts by the Justice Ministry to avoid giving substantive answers to our questions.

That worked.

The letter signed by the Deputy Justice Minister A.Y. Sedov can be considered a response to the substance of our questions (see below). It contains several quite incredible and curious points. The first is in the very first sentence.  

“In accordance with the letters of the Secretariat of the Cabinet of Ministers from 15.12.2012 No. 48761/1/1-12 and Prosecutor General’s Office from 17.12.2012 No. 19-4, your letter from 01.12.2012 No. 279 has been considered”.

In other words our letter from 1.12.2012 received consideration in the Justice Ministry not because we had persistently written four times to the Ministry with one and the same question and the Justice Ministry had to provide an answer according to the law but in violation of the law did not. The Justice Ministry answers because it has received letters from the Secretariat of the Cabinet of Ministers and from the Prosecutor General’s Office (creativity worked).

The letter names two documents which impose the duty (not the right!) on the Justice Ministry to lodge an application with the court (and not the Prosecutor General’s Office, see below)

The grounds for “the Justice Ministry lodging an application for compensation of losses caused the State of Ukraine as the result of unlawful rulings issued by judges, are the establishment of elements of a crime in the actions of the person through a guilty verdict by a court (to which the Justice Ministry itself must turn – see below)”.

And here the long-awaited words about the specific cases asked about.

“At the same time we would inform you that at present work is underway on preparing authentic translations of the European Court of Human Rights judgements in the cases of Tsygoniy v. Ukraine and Veniosov v. Ukraine”.

Only after this will the Justice Ministry … turn to the Prosecutor General’s office asking for a check to be carried out, for the people responsible for causing losses to the State Budget of Ukraine in connection with implementing the European Court of Human Rights judgements Tsygoniy v. Ukraine and Veniosov v. Ukraine to be identified and held accountable”.

So when might that be?  By all means, there’s an answer to that too.

“After the translations of these judgements have been made…”

What is important in the Justice Ministry letter is mention of yet another normative document – the Rules of Procedure for organizing work on compensation of costs caused the State Budge in connection with implementing European Court of Human Rights judgements. It would be interesting to see it.

There is also something of a surprise in the letter though in fact it’s not a huge surprise. The Justice Ministry for some reason thinks that to establish and hold accountable people guilty of inflicting losses on the State Budget in connection with implementing European Court of Human Rights judgements, it should turn not to the court, but to the Prosecutor General’s Office.  Is it really not possible when turning to the court to assess whether there were infringements?  How cowered must our courts be that only “a permit” from the Prosecutor’s Office will open the door to the exercise of justice?  Yet according to such logic it follows that if, for example, the Prosecutor General’s Office is mistaken and (let’s assume) proposes to find the judges guilty – the court will rectify this mistake and the judges will be found clean before the public and the justice system.  But if the Prosecutor’s Office is mistaken in another direction and – in the event of the judges’ guilty – finds them innocent, the Justice Ministry will not apply to the court and the court will be deprived the chance of rectifying such a “mistake” by the Prosecutor’s Office.  And then the hole in the budget will not be reduced. ..

I’m not even asking about the time which the Justice Ministry could take on its “authentic translation”. The judgements in the above-mentioned cases were on 24 November 2011 and 15 December 2011, and as of 4 January 2013 - well over a year! – there are still no translations. And there it may not be far off the time bar for bringing judges to answer… And there are still no threats to the Crimean judges.

And there may not be any such threat for a long time. I am therefore calling on anyone who shares concern for the State budget: don’t be indifferent, write to the Justice Ministry about other European Court of Human Rights judgements, ask them when those guilty of losses to the State coffers will be held answerable

Oleksandr Bukalov

Donetsk Memorial

The letter from the Justice Ministry to O. Bukalov

In accordance with the letters of the Secretariat of the Cabinet of Ministers from 15.12.2012 No. 48761/1/1-12 and Prosecutor General’s Office from 17.12.2012 No. 19-4, your letter from 01.12.2012 No. 279 has been considered, and we inform of the following.

Pursuant to Article 9 § 5 of the Law on Implementing judgements and applying case law of the European Court of Human Rights from 23.02.2006 No. 4777-IY; Cabinet of Ministers Resolution “On measures enforcing the Law on Implementing judgements and applying case law of the European Court of Human Rights from 31.05.2006 No. 784, the Justice Ministry is obliged to lodge an application with the court for compensation of costs inflicted on the State Budget of Ukraine as the result of payment of compensation in accordance with European Court of Human Rights judgements.

Article 1191 § 3 of the Civil Code establishes that the State, having compensated damages caused by an official of a detective inquiry [diznannya], criminal investigation body, Prosecutor’s Office or court, has the right to make its own claim against that official only where elements of a crime have been established in the actions of the person through a guilty verdict by a court which has come into force.

Therefore the grounds for the Justice Ministry lodging an application for compensation of losses caused the State of Ukraine as the result of unlawful rulings issued by judges, are the establishment of elements of a crime in the actions of those judges.

At the same time we would inform you that at present work is underway on preparing authentic translations of the European Court of Human Rights judgements in the cases of Tsyhoniy v. Ukraine and Veniosov v. Ukraine

After the translations of these judgements have been made, the Justice Ministry in accordance with the Rules of Procedure for Organizing work on compensation of costs caused the State Budge in connection with implementing European Court of Human Rights judgements, passed by Justice Ministry Order No. 3280/5 from 08.11.2011 will

turn to the Prosecutor General’s office asking for a check to be carried out, for the people responsible for causing losses to the State Budget of Ukraine in connection with implementing the European Court of Human Rights judgements Tsyhoniy v. Ukraine and Veniosov v. Ukraine to be identified and held accountable.

If the court issues a guilty verdict finding elements of a crime in the actions of the relevant officials, the Ministry of Justice in accordance with legally established procedure will take measures on compensating the damages caused the State Budget of Ukraine by submitting a law suit against the culprits.

Deputy Justice Minister A.Y. Sedov

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