Права Людини в Україні. Інформаційний портал Харківської правозахисної групи
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13.12.2002 | Yuri Motorny, Poltava
The right to a fair trial

Advantages and shortcomings of the court reform


More than a year has passed since the substantial changes were introduced into the Civil-Procedural Code. Approving these changes our legislators intended to protect rights and interests of citizens, as well as to bring our domestic laws in the concordance with international (European, first of all) norms. Did they succeed?

There are many different ways to estimate changes. The supporters of the changes point out the rationality and, especially, the guarantees of the immutability of the taken decision. At the same time, more and more opinions are published, where specialists assess the innovations critically and put the question: who needs such reform and does it guarantees the consolidation of legality?

Thereupon one must pay the attention to the fact that all branches of the power have lately acknowledged the role of the "telephone right", the dependence of courts on the state organs or individual state officials, as well as the existence of the corruption. The most dependent are the judges of local courts, since they consider the majority of the claims and complaints, and the further lot of the vexed question depends on the position of the court and the court verdict. Unfortunately, this is not uncommon when such courts not only issue the illegal verdicts, but also hamper the consideration of appeals. There were cases, where judges took the decision on rejecting the appeals under unconvincing pretexts or demanded to pay the enormous tax, which the complainer was unable to pay (by the way, the Decree does not envisage any tax payments for the consideration of an appeal).

The extreme overload and absence of the needed qualification of the court stuff, as well as their negligent attitude to the work result in the illegal and ungrounded decisions.

The right for the challenge of the court composition (chapter 2 of the Civil-Procedural Code (CPC)) is an important guarantee of legality of a trial. It happens frequently that during a trial the judge expresses his own opinion on the future decision, evaluates facts and events, rejects the petitions groundlessly, or even corrects the answers of witnesses or sides before writing down the evidence to the protocol. I think that it is incorrect to give judges the right to decide personally the question about the challenge (Article 22 of the CPC). It is obvious that if somebody ordered to the judge to take such and such decision, or he has some other interest in this case, then the question whether the challenge would be accepted seems to be rather rhetorical. At the same time the operating norm is very convenient to the persons, who can influence the court. So, was it expedient to introduce any changes? I believe that the most just, although not ideal, was the norm, when the challenge was considered by the court head. The head, being the most experienced and responsible person, must be the least dependent on the "telephone right", so his decision must be most unbiased and wise. I think that the legislators must revise this norm and, maybe, return to this one that was operable till July 2002. Besides, in any case the CPC must be supplemented with the article giving the plaintiff the right to appeal against the rejection of the challenge. Now the CPC does not permit this. If the plaintiff is not satisfied with the decision, he has the right to hand the appeal to the appeal court. Here another question may be put: "Whether an appeal court is a guarantor of legality?"

The published decisions, resolutions and comments to them evidence that one may not be sure as to this. There happen the distortions of facts and sense of documents, the proofs are ignored. Such state can be explained with the great number of complaints, overload, absence of proper material base. That is why judges cannot familiarize with the cases thoroughly, to conduct the needed analysis, to listen to the sides attentively during the trial. All this is doubtless. The state must create the conditions for judges, as it did for the tax administration. However, even now the citizens must be sure that their claims will entail the legal and unbiased decisions.

Let us consider a concrete example. Citizen N. and her daughter turned to court with the claim. They demanded to collect from their house managing office the cost of medical treatment and to oblige the office to pay for the stay in sanatorium. The court satisfied the claim in the part of recompensing the expenses for medical drugs, but refused in the part of paying for the sanatorium motivating the decision by the fact that the complainers allegedly intended to grab these money for themselves. The claimants appealed against this part of the decision, since both in their claim and during the trial they asked to transfer this sum to the account of the trade union that could render them the place in the sanatorium. The obviousness of the violation committed by the court gave the grounds for satisfying the appeal.

The appeal court left the decision without changes. The motive was the following: the claimants did not produce the certificate of medical commission about the necessity of the sanatorium treatment! This motive was untrue, since a xerox copy of the certificate was appended to the claim, and the original certificate was presented during the trial. Thus, the appeal court did not eliminate the offences committed by the local court, and what is more, it even complicated the position of the plaintiffs.

Will the Supreme Court correct the error? There is almost no hope. As the statistics shows, only about 5% of the complaints are considered per se. The rest, 95%, are turned without any consideration. According to part 5 Article 329 of the CPC, a court resolution cannot be appealed. Many various opinions are expressed as to the unconstitutionality of the preliminary consideration of cases, but no decisions have been adopted, thus violating the rights of thousands to the interested persons.

Even if a case is directed to the Supreme Court, the probability that the illegal decision would be canceled is negligible. It happens because, according to Article 336 of the CPC, the change or cancellation of a decision may be caused only by the violations of the procedural norms, which happens noticeably rarely than the violations of the norms of material rights, like in the described concrete case. The demands of Article 340 of the CPC do not take into account the numerous abuses of laws.

The above statement may be confirmed by another example. A citizen turned to court asking to oblige the department in charge of subsidies to give him a subsidy for the reduced communal pays. At the trial a representative of the subsidy department substantiated the refusal by the fact that the claimant has not paid for the communal services. The claimant presented to court the agreement concluded with the gas supplier about the gradual acquittance of the debt and the reference confirming that the pension was given to him with the arrears of 6-8 months, so he could not pay for the services. According to the operating laws, the arguments presented are sufficient for rendering the subsidy and are directly defined by the Resolution of the Cabinet of Ministers as the conditions, when the subsidy is prolonged without fail.

The court concurred with the fact of the pension pay arrears, but ignored the agreement about the gradual acquittance of the debt and refused to satisfy the claim. The jury that considered the case did not correct the violation of the legal norm, they even stated that the pension was paid IN TIME (for some reasons they referred to the page, to which the reference about the arrears was added). The Supreme Court drew the conclusion that there were no violations of the material and procedural right. Thus, the citizen was deprived of the opportunity to use his right for getting subsidy, and the court did not protect his rights. Besides, the man had to pay the court expenses and suffered morally from the refusal to satisfy his claim!

I believe that the right to submit protests to court was revoked without the proper analysis and the consideration of all actual circumstances and problems. The experience confirms that this practice was a rather effective method of liquidating errors, reversing illegal decisions and resolutions.

It would be advisable to permit the submittal of the protests both to the appeal and to the Supreme courts. I am sure: this scheme meets the modern conditions and creates the opportunity for the protection of rights and consolidation of lawfulness.

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