Права Людини в Україні. Інформаційний портал Харківської правозахисної групи
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03.01.2007 | Viktor Maholin
The right to a fair trial

The Law and court practice

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Democracy the Zachepylivka way


According to Article 55 of the Ukrainian Constitution, citizens’ rights and freedoms are protected by the court.  The International Covenant on Civil and Political Rights binds each state to ensure every individual effective means of legal protection in cases where rights and freedoms have been violated. The right of protection for any person who needs it is guaranteed by the state and its authorized judicial, administrative and legislative bodies. The court has a particularly responsible role among these means for defending human and citizens’ subjective rights and freedoms. However is the court always an effective means of protection?

If in practice the rights and legitimate interests of citizens were defended, crimes were fully solved and the application of the law was properly ensured, then citizens would have all grounds for taking pride in the law-based country. Unfortunately the courts are virtually inundated with complaints from the public specifically over violations of their legitimate rights in the courts.

To not make unsubstantiated accusations, I would cite several specific examples from the work of the Zachepylivka District Court in the Kharkiv region.

Ms. L. O. Kononykhina from the village of Zaliniyne in the Zachepylivka district decided to go to court over the actions of staff of the district prosecutor’s office who, she alleged, had been irresponsible in their treatment of her application of 10.02.06 to launch a criminal investigation against the former judge of the Zachepylivka Town Court, V. D. Kovalyova, whom, the claimant believed, had handed down a knowingly unlawful judgment.

The complaint against the actions of the Zachepylivka district prosecutor’s office was given for consideration to Judge Y.I. Yatsenko. According to Ms. Kononykhina , there was no court hearing, yet a court ruling turning down her demands, expressed in her complaint and appeal, did emerge from the Zachepylivka court. Incidentally, I had also planned to be present at a hearing into this case, but this was thwarted.

The court hearing was scheduled for 9 a.m. At 8.15 Ms Kononykhina was already at the court and went into Judge Yatsenko’s office. The latter, without any procedural finesse, asked the claimant, standing in the doorway, a few questions. Then he said: “You go home, and I’ll send the court ruling by post”. Five minutes later, in my flat already, Ms Kononykhina told me all of this, not understanding that she’d simply been deceived. She was certain that the court had already ended. At 8.45 I was in Judge’ Yatsenko’s office and asked him to explain what was going on. Had the prosecutor being summoned to the hearing, why had he not appeared and so forth? Yatsenko explained that the prosecutor decides himself whether to appear in court or not, and that it had all been decided already. I waited near the court for half an hour and understood that none of the staff of the prosecutor’s office had arrived (I know all of them), and at 9.20 I telephoned to the district prosecutor’s office

The Prosecutor’s Assistant A.V. Mandych answered and said that none of the prosecutor’s office staff had been called to the court. Yet how could one consider a complaint against actions of staff of the district prosecutor’s office without their presence?

The applicant by then had looked over the protocol of the court hearing in the Zachepylivka court and discovered total distortion of the events and facts in her case. A claim in response was immediately submitted to the Appeal Court. The latter reviewed the material and upheld her claim. After all, as noted during the court hearing, the review of the case had taken place with flagrant infringements of procedural legislation, and even the date of the hearing had been a non-working day. Later the case was heard in the neighbouring Krasnogradsky district, then in the Supreme Court, however with no success for the applicant. This is our justice system. The Kononykhina gained a degree of publicity in the district which cannot fail to impact upon the authority of the court itself.

Ms Kononykhina, a solo mother bringing up two children is trying, through the court, to prove her right to a share in some land, but with no result. The entire reason is a court ruling which, incidentally, was initially supported by both the regional prosecutor’s office and the appeal court.

The proof that she is defending her legitimate right to own the land share is the mere fact that the Zachepylivka prosecutor’s office, under pressure from the Prosecutor General, has already approached the district court three times asking that the claimant’s right of ownership of the land be restored. There had already been two court reviews into the case, yet the court had found grounds for turning the prosecutor’s office down. According to Prosecutor’s Assistant Mandych, Judge P.V. Hryshyn who considered the prosecutor’s submissions, told him after the hearing that however many times they presented this issue in court, they would be turned down.  The right of the applicant to own the land was also considered at a session of the village council, at a meeting of the district land commission, and all unanimously affirmed the right, however due to an unjust court ruling, the case has remained unresolved. I am presenting all of this in order that the reader can understand how “difficult” it is for the Zachepylivka District Court to acknowledge a court “mistake” and therefore analogous mistakes are repeated. The appeal to Kyiv also resolved nothing.

The answer from the Head of the Council of Judges of the Kharkiv region to the claimant’s complaint, on instructions from Kyiv, proved to be a standard meaningless formality, an attempt to conceal the crime committed by Judge Yatsenko, relying on the legal lack of knowledge of the claimant.

Such a response is overt trickery since the instructions on reviewing the given case was virtually ignored by a number of judges in the Kharkiv region.

Turning to the Higher Expert Board of Judges of Ukraine, Ms Kononykhina hoped that an objective official investigation would be carried out into the events above, that official fraud would be proven and that there would be a statement of no confidence in Judge Yatsenko for violating his oath. It should not happen in the country that individual, chance public officials compromise the entire state authorities.

However all hopes were in vain.

An analogous situation emerged with my application to bring criminal charges against former judge of the

Zachepylivka Town Court  M.D. Kovalyova.  As a result of criminal actions by the judge and prosecutor’s office I was unlawfully convicted, however the court verdict was justly quashed by a resolution of the appeal court on 16.11.01. All of my evidence is substantiated by documentation. At the same time the prosecutor of the district and the prosecutor’s assistance Ms R.V. Komar and Mr Mandych found no violations in the actions of their predecessors and they turned down my application for a criminal investigation to be launched.  This resolution emerged after 148 days, instead of the ten as required by the Criminal Procedure Code [CPC].  The case was handed to Judge Yatsenko whom I demanded be removed, referring to his ability to falsify court documents. The head of the court deemed my arguments to be unfounded which gave Judge Yatsenko the right to ignore all existing moral and ethical norms of behaviour for an “independent” judge and conclude the review of the case without my participation. During the appeal consideration it transpired that there was not even a protocol for the court hearing which is a flagrant violation of the CPC. This also demonstrates that the court ruling was passed, as they say, without trial or investigation. Is this not criminal, not a violation of the judge’s oath?

The head of the court handed further consideration of the case to Judge P.V. Hryshyn, whom I think it would be suicidal to have confidence in. Another statement was submitted declaring lack of trust, which was again rejected, and the case went along the old tracks. My statement was not upheld and this was done quite brazenly.  Before the hearing itself, the district prosecutor foisted his ruling , which revoked the ruling of his assistant, on the Judge I found this out during the court hearing from the Judge. It is difficult to understand what the point of having a court hearing was in such a case.

Furthermore, in my view, nothing happens by chance in the Zachepylivka court. In violation of Article 375 of the Criminal Procedure Code, Head of the Court.H.V. Boiko unlawfully terminated my criminal case without consideration of the merits in 2001. I attempted to prove that there had been exceptionally grave violations of my constitutional rights in the court.  Even that was not enough for Judge Boiko and on 28.07.03, without informing me, he initiated a review and analysis of my criminal case. As a result, I was acquitted under one article of the Criminal Code, and charged under another. I found this out by charge through a letter from the Prosecutor General. This is how the judges interpret their oath in the Zachepylivka, virtually privatized, court,

At 9 a.m. on 29 March 2006. I entered the court building to look at the notice board in the corridor near the entrance. The head of the court, knowing my attitude to him, came up to me and began asking provocative questions. I was silent for a long time because I thought that any conversation would end badly. To his fourth question I gave an answer which he clearly did not like and he grabbed me by my jacket sleeve and began dragging me along the corridor. I was forced to shout to the entire court demanding that he release me. When he let me go, in a threatening tone he said that “we can deal with you another way”. All of this was observed calmly by the assistant to the district prosecutor, A.V. Mandych. This is how the head of the court saw fit to treat a citizen of Ukraine, a pensioner, civil servant with thirty five years experience and the head of the district organization “Partiya pravozakhystu” [Human rights protection party].

Residents of Zachepylivka are afraid to make public information about the judges’ lawlessness, since they  are involved in business and there are obviously problems, by no means small ones. After all these heads of the court and of the prosecutor’s office have for many years behaved so that everyone understands that they are the bosses in the district. For this reason I understand why even President Yushchenko in his address at the opening of the session of the new parliament said that the judiciary in the country had already reached a critical point in terms of corruption. I would accept such a description as correct for our district.

My criminal case has not been reviewed for years. I was told by the head of the court that I could do nothing since he was appointed for life. I can’t prove in the court that I was unlawfully charged by the prosecutor’s office of the district. In conclusion I would note that I am not evading trial, but on the contrary demand that a court investigation be carried out. After all, I stand accused but don’t know of what. I have a higher education, have an experienced lawyer, have a son with a legal education and can do practically nothing. The head of the court is not obeying instructions from the Supreme Court or from the appeal court. What kind of system of court justice is this? And what can an ordinary citizen achieve in such a court?

Undoubtedly, through their unlawful actions the heads of the law enforcement organizations first of all compromise all state authorities. We have a virtually privatized state service. What sort of democracy can one expect in such a situation?

The facts I have presented give me grounds for asserting that the activities of the Zachepylivka court and prosecutor’s office are entirely criminal, charlatanism and a mockery of human rights. It is a point of honour for the judiciary to put an end to this chaos by declaring a lack of confidence in these crooks who abuse their oath.

My letters to the Higher Council of Justice, to the Ministry of Justice, to the Higher Expert Commission of Judges of Ukraine on the state of affairs with the courts in the region have not received due attention. They find no grounds to react appropriately. My conclusion is therefore that we need not legal reform, but a legal revolution.

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Democracy the Zachepylivka way

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