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4. RIGHT TO FAIR TRIAL

   


[1]

In 2012 all the negative anticipations with regards to the Law “On Judicial System and Status of Judges” of 2010 came true. The threatening tendencies, predetermined by the judicial system reform became routine. The system of justice never became more accessible or transparent, while the political pressure upon the judges increased. Under these circumstances the level of public trust towards judicial power rapidly reached the lowest indicator possible – no more than 3% of the population still trust Ukrainian courts.[2] A few laws promoting certain improvements in the judicial protection were almost lost against this background.

Manipulation with judges’ selection process; pressure on judges 

The authorities persistently implemented the mechanism of selecting “accommodating judges” and castigating the disloyal judges. The judges’ transfers occurred without competition or even with total disregard to the results of prior selection. Thus, in February 2012 the Supreme Judicial Qualification Board issued a recommendation on transferring 4 judges to the capital city courts. A month earlier due to the poor results on qualification tests, they were first appointed as judges of provincial courts.[3] This mechanism proved a simple way to circumvent the law requirements stipulating that a candidate with better test marks has a better chance of getting court position.  

This step confirmed the suspicions of political engagement of the Supreme Judicial Qualification Board. First selection of judges under new rules took place in 2011; then the process of potential judges’ assessment was not transparent. Despite totally computerized evaluation system, it took several days to evaluate the tests. After the criticism of the Supreme Judicial Qualification Board’s operation in  2012 the first stage of the new selective process was completely transparent – the exam was held in one venue, results became known on the same day – test notebooks were scanned and processed with public representatives, mass media and candidates to the judges’ positions present. In 2012, however, the Supreme Judicial Qualification Board lowered the passing score and admitted much more contestants to the next stage. At this stage the contestants had to do the written test and be interviewed. It means that respective marks were given not by the computer, but by the board members. So, it’s quite possible that certain manipulations just shifted to the second selective stage. 

The judges’ selection to the courts of higher instances and also for chief justices and their deputies took place behind the curtains. The transference of a number of judges from the Eastern oblast’s to the capital became common; as a result a lot of vacancies opened in these oblasts. 

The instances of putting disciplinary pressure on judge4s have become more common too, especially on behalf of the prosecutor’s office.[4] Meanwhile, the judges’ self-governance bodies proved incapable of performing their function of safeguarding the judges’ independence.

Systemic problems in the Ukrainian judicial system once again have drawn attention of the European community. On January 26, 2012 Parliamentary Assembly of the Council of Europe passed a resolution “Functioning of democratic institutions in Ukraine” №1862. It reflected deep concern about the lack of independence in judicial system and about information from reliable sources on initiating disciplinary measures and removal of judges on the basis of the prosecutor’s office complaints. The aforementioned judges passed the rulings which disagreed with the prosecutor’s office opinion. This practice is one of the reasons for the decreased number of acquittals (less than half percent) and wide use of suspects’ imprisonment at the stage of pretrial investigation.  

In June 2012 the Supreme Rada, on the Presidential initiative, passed a Law “On Introducing changes into certain legal acts of Ukraine enhancing the guarantee of judges’ independence”, by which the prosecutors were forbidden to instigate disciplinary proceedings against judges while the case is still under consideration and the prosecutor is a party to it. The said Law was received (perceived?) positively, although it did not bring dramatic changes into the issue of pressure put on judges by means of disciplinary liability, as the prosecutor’s office often demands that a judge be sued after passing a “non-guilty” verdict, although the alleged reason for suing is quite different (i.e. violation of the statute of limitations). If the court supports the prosecution, then the prosecutor’s office usually suppresses discreditable information on judges.      

It is also noteworthy that the levers entailing judges’ liability are used not only by the prosecutor’s office. The very fact of judges’ accountability to the highest disciplinary bodies – the Supreme Judicial Council and the Supreme Judicial Qualification Board - forces many judges to remain loyal to the authorities even without any hints on behalf of the latter. And it is only too easy to find violations in the judge’s actions (i.e. violation of the statute of limitations), as the judges are constantly overloaded with cases. Unfortunately, this lever is broadly used in practical operation.

Politicization of justice

The tendency of political power to use the judges has become more evident and cynical over the past year. Numerous criminal cases against the opposition members, ending in complete support of the prosecution by the courts testify to the fact. The same is true of 90% of cases on banning peaceful gatherings by authorities, satisfied by the courts on totally absurd grounds;[5] judges’ preferences of dominating party in the course of parliamentary elections; imposing administrative liability for the authors of leaflets with slogans unfavorable for the officials, participants of spontaneous peaceful gatherings etc.

The Constitutional Court also manifests its loyalty to the political power by passing only decisions favorable for it.  Thus, for example, the Constitutional Court granted authority to the Government to ignore social laws in force and to be guided, instead, by its own legal-normative acts when passing decisions in the area of social services[6]. It also made possible the punishment of journalists or other persons for collecting or disseminating information, especially concerning criminal record, disciplinary punishments, professional education and family links of politicians and bureaucrats of all levels[7].

For a prolonged time the Supreme Court remained the only judicial institution, which was not totally controlled by the power. In 2011, after V.Onopenko’s term of office ended, the temporary decision was made, i.e. electing a neutral candidate P.Pylypchuk the Chief Justice of the Supreme Court. He spent all his life working in the judicial system, but less than a year later reached the age of 65 and sent in his resignation.  The Constitutional provision stipulating that the Chief Justice of the Supreme Court is elected by judges themselves at their plenum became a hindrance for political power.

The officials once again started developing a mechanism to appoint a loyal Chief Justice of the Supreme Court.   Thus, the people’s deputy from the Party of Regions I.Tsarkov initiated the consideration of the draft law on introducing changes into Article  39 of the Law of Ukraine “On Judicial System and Status of Judges” (on creating favorable conditions for the operation of the Supreme  Court of Ukraine) by the Supreme Rada. The draft law proposed giving priority in electing the Chief Justice of the Supreme  Court to a person, which worked at least for one year as chief justice of a specialized court or as a secretary of the judicial chamber of the Supreme  Court not less than six months. Apparently the draft law is aimed at electing the Chief Justice of the High Specialized Court for civil and criminal cases and former deputy from the dominating party L.Fesensko, who was transferred to the Supreme Court, the Chief Justice of the Supreme Court. It cannot be ruled out that after appointing an “accommodating” Chief Justice of the Supreme Court, some share of its former competences will be restituted to this institution.

After all the judges in the courts of all levels have been replaced by the loyal ones, the authors of the judicial reform decided to revive the levers of influencing courts through their heads. Therefore, the first reading of the draft law on improving certain provisions in the organization of judicial power №9740, initiated by S.Kivalov and D.Shpenov – active developers of the very laws on judicial system and status of judges. If approved this draft law will restore the supervisory functions of the heads of courts and grant them the right to establish judges’ specialization. It will allow a totally legal circumvention of automatic distribution of cases among judges (currently the judges’ specialization is defined by the meeting of the respective court judges).  The heads of courts were deprived of these competences in the course of judicial reform in order to decrease the judges’ dependence on them. The restoration of the said competences will benefit loyally-minded heads of the courts and increase the official control over the courts.  

Despite the legal restriction of the courts’ heads competences in 2010, their role is traditionally preserved. E.g. when judges are selected for office in the courts of higher instances, the Supreme Judicial Qualification Board in violation of the law takes into consideration the courts’ heads opinion, their approval of a candidate etc.[8]

The increase in the closed nature of the judicial power and deterioration in accessibility of justice 

On October 20, 2011 the Supreme Rada amended the Law “On accessibility of court decisions”, to the effect that the list of court decisions to be entered into the Uniform State Registry of court decisions is approved by the Supreme Judicial Council. Many experts classified this step as the abolition of the registry as means of public control over the judicial power operation. Earlier pursuant to the law all the decisions made in the courts of general jurisdiction had to be entered into the registry. In February 2012 the Judicial Council approved the list, under which many important decisions would not be entered into the registry[9], specifically, the decisions of the higher specialized courts concerning approving the reviewing of cases in the Supreme Court, Higher Administrative Court decisions on remanding claims, leaving them without consideration in the first and last instances, e.g. in the cases against the President or the Supreme Rada. The resolutions in the majority of cases on administrative infringements (with the exception of cases on customs and corruption violations) became close. Hiding all these court decisions from public does not help in enhancing the judicial power authority; on the contrary, it further undermines public trust towards the courts.  

In April 2012 the Supreme Radar, on the initiative of the people’s deputy Yu.Karmazin, abolished the requirement of publicizing the income and expenditures declarations of judges and their family members on the Internet[10]. Formerly, the Law “On Judicial System and Status of Judges” envisaged obligatory publication of judges’ tax declaration on the site  www.court.gov.ua. Making the judges’declaration public had to be a way of preventing corruption, as it is quite easy to organize the verification of a judge’s incomes if his actual means differ from those declared. However this progressive norm was never implemented in practice.  The judges keep declaring their property, incomes and expenditures by submitting a copy of declaration to the courts where they work. Pursuant to the Law “On Principles of preventing and counteracting corruption” only the judges of the Constitutional, Supreme and other specialized courts are obliged to publish their declarations – in the official printed publications of the respective courts. The declarations should be submitted prior to April 1 and published within next 30 days following the submission.  Nevertheless, in violation of these requirements the declarations of the judges of the said courts have not been published.

Although in 2012 the judicial proceedings have become more expensive, as the amount of court fees became linked to the minimum wages, the government proposed to raise the fees even more, which in fact bans the indigent individuals from seeking court protection. The respective draft law on introducing certain changes to the legal acts of Ukraine (with respect to the court fees) was initiated by the Cabinet of Ministers in September, and in October it was already approved by the Supreme Rada in the first reading[11]. The draft law proposed, in particular, to introduce the court fees for the cases on administrative infringements and to increase the amount of fees twice for other cases. On the verge of parliamentary elections the parliament did not dare to pass this law and postponed its consideration.

Due to non-compliance with the pilot decision in the case “Yu.M. Ivanov v. Ukraine” concerning the use of general measures for resolving the non-compliance with the Ukraine courts’ decisions for over two years, the European Court on Human Rights had to consider thousands of cases dealing with the same problem - compliance with the national courts’ decisions.  Indeed, in June 2012 the Supreme Radar finally passed the Law “On state guarantees for the execution of court decisions”, which envisaged the mechanisms for executing the court decisions on obtaining money from the state bodies, enterprises, organizations and institutions – debtors-legal entities,  with respect to which a moratorium on the forced expropriation was established. In these cases as the debtor is incapable of meeting his obligations, the compensation should be obtained from the State budget.

Recommendations

1. Amending the Constitution with the aim of harmonizing its provisions concerning judges’ status, judicial system and Supreme Judicial Council with the European standards. Ensuring the rotation in the judicial corps through new procedures.

2. Establishing competitive principles for the judges’ career advancement and ensuring the transparency of all stages in judges’ selection.

3. Ensuring fairness and competitiveness of the disciplinary procedure, by setting up a special Disciplinary board; determining more accurately and narrowly the grounds for disciplinary liability and removal of judges from the office.

4. Strengthening the judges’ self-governance system, guaranteeing proportional representation of judges of each jurisdiction; simplifying the system of the judges’ self-governance, retaining only the judges’ meetings in the respective courts, judges’ convention and the Judges’ council.  

5. Redistributing the competences between the chief justice and the judges’ meetings in favor of the latter, but not the other way round, as the head of the court should not be superior official for the judges.  

6. Restricting the role of the Supreme Judicial Council, till its membership complies with the European standards, by introducing changes to the Constitution. In particular, restriction the competences of the Supreme Judicial Council in the process of the judges’ first assignment; also abolishing the provisions of the Law “On Judicial System and Status of Judges” granting the Supreme Judicial Council the authority to assign and remove the heads of courts and their deputies.

7. Renewing the legal provisions on making all the judges’ declarations public and also on entering all courts’ decisions into the registry.

8. Providing the Supreme Court with efficient tools for ensuring equal application of norms of not only material but also of procedural law. It has to be an arbiter between the courts of various jurisdictions and guarantee that the courts of various jurisdictions would not reject the cases trying to shift them to one another. 

9. Applying measures to ensure the execution of the decisions of the European Court on Human Rights, which contain the requirements to resolve the general problems, specifically, the problem of non-compliance with the Ukrainian courts’ decisions in the disputes concerning pensions and other social issues.  The responsible state bodies which are the debtors should immediately appeal to the government petitioning the need to introduce changes to the state budget in order to finance the execution of the court decisions, made in favor of the individuals – parties to the disputes. Hence, the court decision on such disputes should be executed within one year’s period, at most.  In establishing the amount of pensions and social subsidies taking into account the economic capacity of the state, it is expedient to adhere to the constitutional requirement stipulating that this amount cannot be lesser than minimum cost of living.    

 

[1] Prepared by R.Kuibida, T.ruda. Center for political and legal reforms

[2] Correspondent: the level of trust towards Ukrainian courts is reaching square zero mark // Source: http://ua.korrespondent.net/

[3] M.Zakabluk “Everyone loves Kyiv” or what is the reasoning behind the transfer decisions // Zakon i biznes  – 2012. - №21 (1060); source: http://zib.com.ua/

[4] Such cases were reported, in particular, by the Center for strategic protection. See, e.g. The prosecutor’s office finally ensured the desired verdict by putting out-of-court pressure on judges. 20.01.2012 // http://hr-lawyers.org/index.php?id=1327048950.

[5] M. Sereda, T.Pechonchik A gander’s quill is not a threat, or how the courts ban the rallies // Source: http://www.pravda.com.ua/articles/2012/07/19/6969140.

[6] Ukraine and the supremacy of law: is there a way out? // Source: http://pravo.org.ua/

[7] The Constitutional Court of Ukraine allowed detention for divulging the information on politicians and bureaucrats  // Source: http://pravo.org.ua/

[8] Yu.Gaydina. Providing recommendations HJQB members checked the level of contestants’ knowledge. // Zakon I biznes. – 2012. - №39 (1078); Source: http://zib.com.ua/

[9] Judicial council made a disservice to the courts and public // Source:  http://pravo.org.ua/

[10] Law of Ukraine “On introducing changes to some legal acts pursuant to the Law of Ukraine “on principles of preventing and counteracting corruption” of May 17, 2012 //Holos Ukrainy of June 12,  2012, № 106.

[11] The draft law on introducing certain changes to the legal acts of Ukraine (with respect to the court fees) №11183 of September 6, 2012  // Source:  http://w1.c1.rada.gov.ua/

 

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