Will our courts ever become independent of corruption?
In one of his interviews before the presidential election President Kuchma, answering the question Will our courts ever become independent of corruption? said the following: What happens in our courts today is inadmissible. The court must guard the law, but not distribute positions and material means... Some court decisions cause not only surprise, but indignation. This is not execution of laws, this is execution of orders. Reforming the court system is extremely necessary, and I shall do everything to reform it.
One would like to believe the Presidents promise. During several recent years the talks about the court reform are actively rumored, but no reforms are visible. The only changes are the increase in the staff of courts. I would like to add concrete details to the Presidents assessment of the court system, by describing in details one example from the work of Chernomorskoye district court and the Collegium on civil cases of the Supreme Court of the Crimea.
In the Chernomorskoye district court, according to my observations, the judges are masters of red tape; besides, they often rudely violate the law and rule out blatantly illegal and ill-grounded decisions. There are judges, who, violating the Constitution of Ukraine, forbid the use of dictaphones in the courtroom, falsify minutes of the court session, and always remain unpunished.
In the newspaper Chernomorskiye izvestiya of 20 January 1998 a report was printed about the meeting of citizens with the former representative of the President in the Crimea. The report read that one of the citizens said: We must analyze the work of the Chernomorskoye district court, which is corrupted to the marrow. Certainly nobody did anything. The court knew about this publication, but never tried to refute this notion. Certainly, this is the matter for the court to decide how to react on the newspaper publication. Although, I think that it would be more solid to refute the insinuation in court.
One of the members of the Chernomorskoye district organization of human rights tried to make the newspaper Chernomorskaya zaria refute some false data on himself published in the newspaper. Getting no result, he turned to the Chernomorskoye district court with a claim against the editorial board and the author of the article.
According to the Civil-Procedural Code (CPC), the goal of the civil court is guarding rights and lawful interests of physical and juridical persons by way of considering civil cases in the complete correspondence with the operating laws. But this is theory. Let us look how these goals were achieved in practice by judge E. Stebivko and the Collegium on civil cases of the Supreme Court of the Crimea.
In accordance with Article 146 of the CPC, the preparation of the case to the analysis in court must last not more than seven days or, in extremely complicated cases, up to 20 days from the day when the claim was accepted. Such cases are treated by Article 7 of the CPC: demand to refute in a newspaper the data that are false and impinge on a dignity, business reputation of citizens or damaging their interests. Such cases are considered in the Chernomorskoye district court as especially complicated. That is why such cases are considered in the court during 20 days or longer; then three days more are taken for the composition of the motivated decision. Finally, the resolution part of the court decision is read at the court session.
I believe, it is incorrect to relate such cases to the category of especially complicated, since the preparation of such cases is not made more complicated by writs, observation of the place, where the crime was committed, as well as the composition of a long motivated decision (usually the text of the decision requires 1 - 2 pages). Since the law does not require to indicate the exact delay time, if the time for preparing the case to the court consideration is needed, the judges use this imperfection of the law for delaying the case infinitely.
In the Penal-Procedural Code (PPC) the term of the preliminary investigation is set. Article 120 of the PPC demands that the preliminary investigation must be completed during two months and that the prolongation of this term must be done by the prosecutor, if he gets a well-motivated request of the officer in charge of the investigation. It seems reasonable that in civil cases the procedure must be similar, and the request of the court must be well-motivated too. This norm, in my opinion, must be necessarily inserted to the CPC. That will substantially decrease red tape and increase the responsibility of judges.
In accordance with Article 143 of the CPC, judges are obliged to prepare the case to the court consideration, thus guaranteeing the just decision. In the Chernomorskoye district court the judges do not prepare the cases beforehand, which results in more red tape and issuing ill-grounded and illegal court decisions.
At the stage of preparing a case to the court consideration a judge must determine the norm of the material right, which regulates the conflict, which is done by comparing the facts relating to the object of the conflict, facts, suppositions and norms of the material right. The judge must specify the circle of facts lying at the basis of the claim and other facts, contradicting the claim, as well as the circle of available and possible proves. However, judge E. Stebivko did not prepare the case to the court consideration, thus disobeying Article 143 of the CPC. This naturally resulted in more red tape in the postponement of the court session. The judge wasted three months before the case was considered in court. At the court session the representative of the defendant declared that the object of the discussion is not determined and that the case must be postponed. Then for determination of the object of the discussion the judge postponed the consideration of the matter for three weeks. After the three weeks the defendant requested to read the text of the refutation which the claimant had sent to the editorial board in the proper time and had not got any response. It should be noted that the editorial board has the duty, according to part 9 of Article 37 of the law On press media of the mass information, to respond and explain the reason for printing the refutation. Stating at the court session that the original of the refutation was lost, the defendant protested against reading at the court session a copy of the refutation presented to the court by the claimant. In spite of this protest the text was read and added to the materials of the case. After pleadings the judge did not remove to her office for taking the decision (as it is demanded by Article 197 of the CPC), but unexpectedly declared (giving no reasons) that the consideration of the case is delayed for almost a month. At the proper time the court session was not held because the judge was ill, and the session was delayed for three weeks more. At the appointed time the author of the article did not come to the court without mitigating reasons and the court session was delayed to 18 January 1999 (I remind the reader that the case was started on 20 January 1998). On this day the judge declared at the court session only the resolution part of the court decision. The resolution was to deny the claimant. The judge said that the claimant could get acquainted with the motives of the decision on 22 January. In fact, it became possible only on 26 January. The text occupied one and a half page of typescript, for which preparation the judge needed a week. This violates Part 4 of Article 209 of the CPC that states: In exceptional cases with especially complicated affairs the composition of the motivated decision may be delayed on the term not exceeding three days.
Having not agreed with the decision of the court the plaintiff handed the appeal to the Supreme Court of the Crimea. The procedure there appeared even more cumbersome and abounded in a greater number of procedural violations.
The author is afraid to appear a pedant, but the court procedure certainly must be followed to a letter, otherwise the court procedure becomes a sequence of whims of a judge.