The conference ’Access to justice’ was held in Poltava
08.12.2000
E. Volochay, director of the project on legal enlightenment and informing the population about their civil rights
There exist such problems that unite different social and professional groups of people. Realization of Constitutional rights of citizens, tolerance and esteem, the problem of access to justice - they all are a part of universal problems of a society.
There are not many conferences which bring together lawyers, teachers, public organizations and journalists. One of such gatherings was held in Poltava in the end of 1999; it was the conference ’Access to justice’. This conference was organized by the public organization ’For professional aid’ (Ukraine), by the Institute for training and development (USA, Massachusetts), by Rural Justice Center (USA, Vermont) and by probationers of the program ’Public connections Ukraine - USA’.
Acting advocates, lawyers, judges, prosecutors, civil servants, representatives of public organizations and mass media, teachers, students participated in this conference.
The organizers of the conference did not want to turn the conference either in a series of academic reports, or in a tribune for airing social indignation. The organizers of the conference based their plan on the social pragmatism.
First of all, the Constitution of Ukraine theoretically is a sufficient guarantor of rights and freedoms; it must act as a norm of direct action.
Secondly, it is necessary to act at once - evaluate and use the available resources and account of the operating le of the operating legislation of Ukraine.
Thirdly, an interesting experience of legal aid to citizens has been accumulated in Ukraine. the pioneers in legal enlightenment of citizens are some public organizations, which outstripped the state project of legal enlightenment of the population by a year, if not more.
Kathryn Fahnestock, the co-director of the Center of legal aid, said, while opening the conference, that one should not think that there are countries where the juridical structure is absolutely perfect. The USA are trying to perfect the mechanism of access to justice for citizens for two hundred years. The road to such a system is full of pits, they stumble, they fall, but they proceed. It does not mean that Ukraine will need as much time, since the integration in a modern world proceeds faster. But people in Ukraine must not wait for the time, when they will borrow other nations’ achievements. Ukrainian citizens must care of the realization of citizens’ rights in their country and assist in all ways to the development of this process.
The participants of the conference ’Accept to justice’ gathered in order to discuss five important ideas, on which the Constitution of Ukraine is based: guarantees of the independence and neutrality of the judicial power; presumption of innocence (benefit of the doubt); the right for legal aid in the criminal process; honesty and transparency of the court trial; realization of citizens’ right to be aware of their rights and freedoms guaranteed by the Constitution of Ukraine.
The peculiarity of the conference was that no advantages were given to the participants because of their profession or other characteristics. Judges and NGO members, teachers, journalists and students were equal participants of the discussion, unlike the usual procedure, when some participants make reports and others make notes. Discussions and exchange of opinions in small groups concerned important aspects of access to justice and realization of citizens’ rights.
The social role of the judicial power was discussed. All understand the role of the court defense during the trial, but few understand the importance of observing rights of the accused. The conflict between the state and the accused citizen is obvious, but the creation of the mechanism of defending rights of the law-obedient citizen is not less important, if these rights are acknowledged by the state and, at the same time, are abused by the state.
Which is the mechanism of supporting neutrality and independence of the judicial power? The way out is in the situation when judges do not search the evidence, but only assess the evidence in the course of the trial. Their duty is to support competition of the sides during the trial. Up to now, advocates have not equal status with investigating officers in the search for evidence, and this makes difficult the work of the defense. Rejection of judges stipulated by law does not really work.
Benefit of the doubt and gathering evidence were the topics which attracted especial interest of the participants. If someone is detained under the suspicion of having committed a crime, it is important how long he stays in the indefinite state under the pressing. This state determines the psychological readiness of the suspect to defend his rights. If the suspect will refuse form defense under the pressure, will he have an advocate at this stage of the ODA, - all these factors influence the course of events during the trial. Participation of an advocate at the early stages of the ODA happens to be the only guarantee of gathering evidence without abusing the Constitution. All the participants of this discussion noticed how difficult to realize Article 62 of the Constitution, which stipulates that the evidence gathered illegally must be excluded from the case.
Confession of the suspect still happens to be the basis of the incriminating evidence. Majority of citizens do not even suspect that in the Constitution there are Articles (such as Article 63) which give the suspect or witnesses the right not to give evidence against himself or relatives.
Many participants spoke about the existing practice of non-execution of resolutions of court. Citizens’ suits on the pay arrears are accepted by courts, and the courts often rule out to pay the wages, but these resolutions are systematically not executed. This makes courts activities a farce.
If to apply the Constitution as a norm of direct action, then a citizen has the right to suit the state, which in the person of its executive services does not act properly and thus inflicts material or moral damage to the citizen (Article 56). The same can be said about illegal detainment and keeping in custody.
There is another important problem of the equal access to justice, including guarantees of the state for the free legal aid for poor suspects in criminal cases. Practically, the advocates, who defend such clients, do not get any pay from the state. In various regions of Ukraine the situation differs, but there are towns, where the state did not pay advocates’ work since 1996! Usually every practicing advocate wastes some time of him to this kind of activity, although his fees are guaranteed by the Constitution.
Some town councils in Ukraine took resolutions to finance form local budgets the legal defense of minors accused of crimes. Public organizations from different regions of Ukraine carry out juridical enlightenment of citizens, teach citizens how to behave correctly in court, organize ’hotlines’ for consulting, consult the poor free of charge or by means of the proper materials in mass media. Such programs are often financed by international organizations, such as TACIS, the US Agency of international development and others. Besides, such programs are financially supported by Ukrainian businessmen. The latter phenomenon is new and very important because soon various international funds will leave Ukraine, and our citizens are still very ignorant about their rights and other democratic values.
The participants of the conference sketched some projects which they are going to realize in the nearest future. In spite of the difficult situation in Ukraine, people live and work here who understand all and can do much useful.
Here are some concrete projects:
The project of creating students’ ’juridical clinics’ in Poltava and Kyiv for free juridical consultations of citizens. The contact is Elena Volochay, 011-380-44-5658934, E-mail: [email protected]
The project of creating a juridical library in Poltava for students, barristers and common citizens. The contact is advocate Yuri Motorny, 011-380-532225760, 011-380-532133358.
The project of publication court resolutions acquitting citizens in mass media. The contact is editor of the magazine ’Business and safety’ Sergey Belenkiy, mailto:[email protected]
The project of holding the second interregional conference on the problem of protecting civil rights with the participation of judges, advocates, investigating officers, mass media, public organizations, civil servants. The contact is Svetlana Garmash from the juridical firm ’Maksima-advokat’, Kremenchug, 011-380-536638970 (No. 5), mailto:[email protected]
Creating the databank of public initiatives in realization of the Constitutionally confirmed rights and freedoms. The contact is NGO ’For professional aid’, Sergey Volochay, mailto:[email protected]
There exist such problems that unite different social and professional groups of people. Realization of Constitutional rights of citizens, tolerance and esteem, the problem of access to justice - they all are a part of universal problems of a society.
There are not many conferences which bring together lawyers, teachers, public organizations and journalists. One of such gatherings was held in Poltava in the end of 1999; it was the conference ’Access to justice’. This conference was organized by the public organization ’For professional aid’ (Ukraine), by the Institute for training and development (USA, Massachusetts), by Rural Justice Center (USA, Vermont) and by probationers of the program ’Public connections Ukraine - USA’.
Acting advocates, lawyers, judges, prosecutors, civil servants, representatives of public organizations and mass media, teachers, students participated in this conference.
The organizers of the conference did not want to turn the conference either in a series of academic reports, or in a tribune for airing social indignation. The organizers of the conference based their plan on the social pragmatism.
First of all, the Constitution of Ukraine theoretically is a sufficient guarantor of rights and freedoms; it must act as a norm of direct action.
Secondly, it is necessary to act at once - evaluate and use the available resources and account of the operating le of the operating legislation of Ukraine.
Thirdly, an interesting experience of legal aid to citizens has been accumulated in Ukraine. the pioneers in legal enlightenment of citizens are some public organizations, which outstripped the state project of legal enlightenment of the population by a year, if not more.
Kathryn Fahnestock, the co-director of the Center of legal aid, said, while opening the conference, that one should not think that there are countries where the juridical structure is absolutely perfect. The USA are trying to perfect the mechanism of access to justice for citizens for two hundred years. The road to such a system is full of pits, they stumble, they fall, but they proceed. It does not mean that Ukraine will need as much time, since the integration in a modern world proceeds faster. But people in Ukraine must not wait for the time, when they will borrow other nations’ achievements. Ukrainian citizens must care of the realization of citizens’ rights in their country and assist in all ways to the development of this process.
The participants of the conference ’Accept to justice’ gathered in order to discuss five important ideas, on which the Constitution of Ukraine is based: guarantees of the independence and neutrality of the judicial power; presumption of innocence (benefit of the doubt); the right for legal aid in the criminal process; honesty and transparency of the court trial; realization of citizens’ right to be aware of their rights and freedoms guaranteed by the Constitution of Ukraine.
The peculiarity of the conference was that no advantages were given to the participants because of their profession or other characteristics. Judges and NGO members, teachers, journalists and students were equal participants of the discussion, unlike the usual procedure, when some participants make reports and others make notes. Discussions and exchange of opinions in small groups concerned important aspects of access to justice and realization of citizens’ rights.
The social role of the judicial power was discussed. All understand the role of the court defense during the trial, but few understand the importance of observing rights of the accused. The conflict between the state and the accused citizen is obvious, but the creation of the mechanism of defending rights of the law-obedient citizen is not less important, if these rights are acknowledged by the state and, at the same time, are abused by the state.
Which is the mechanism of supporting neutrality and independence of the judicial power? The way out is in the situation when judges do not search the evidence, but only assess the evidence in the course of the trial. Their duty is to support competition of the sides during the trial. Up to now, advocates have not equal status with investigating officers in the search for evidence, and this makes difficult the work of the defense. Rejection of judges stipulated by law does not really work.
Benefit of the doubt and gathering evidence were the topics which attracted especial interest of the participants. If someone is detained under the suspicion of having committed a crime, it is important how long he stays in the indefinite state under the pressing. This state determines the psychological readiness of the suspect to defend his rights. If the suspect will refuse form defense under the pressure, will he have an advocate at this stage of the ODA, - all these factors influence the course of events during the trial. Participation of an advocate at the early stages of the ODA happens to be the only guarantee of gathering evidence without abusing the Constitution. All the participants of this discussion noticed how difficult to realize Article 62 of the Constitution, which stipulates that the evidence gathered illegally must be excluded from the case.
Confession of the suspect still happens to be the basis of the incriminating evidence. Majority of citizens do not even suspect that in the Constitution there are Articles (such as Article 63) which give the suspect or witnesses the right not to give evidence against himself or relatives.
Many participants spoke about the existing practice of non-execution of resolutions of court. Citizens’ suits on the pay arrears are accepted by courts, and the courts often rule out to pay the wages, but these resolutions are systematically not executed. This makes courts activities a farce.
If to apply the Constitution as a norm of direct action, then a citizen has the right to suit the state, which in the person of its executive services does not act properly and thus inflicts material or moral damage to the citizen (Article 56). The same can be said about illegal detainment and keeping in custody.
There is another important problem of the equal access to justice, including guarantees of the state for the free legal aid for poor suspects in criminal cases. Practically, the advocates, who defend such clients, do not get any pay from the state. In various regions of Ukraine the situation differs, but there are towns, where the state did not pay advocates’ work since 1996! Usually every practicing advocate wastes some time of him to this kind of activity, although his fees are guaranteed by the Constitution.
Some town councils in Ukraine took resolutions to finance form local budgets the legal defense of minors accused of crimes. Public organizations from different regions of Ukraine carry out juridical enlightenment of citizens, teach citizens how to behave correctly in court, organize ’hotlines’ for consulting, consult the poor free of charge or by means of the proper materials in mass media. Such programs are often financed by international organizations, such as TACIS, the US Agency of international development and others. Besides, such programs are financially supported by Ukrainian businessmen. The latter phenomenon is new and very important because soon various international funds will leave Ukraine, and our citizens are still very ignorant about their rights and other democratic values.
The participants of the conference sketched some projects which they are going to realize in the nearest future. In spite of the difficult situation in Ukraine, people live and work here who understand all and can do much useful.
Here are some concrete projects:
The project of creating students’ ’juridical clinics’ in Poltava and Kyiv for free juridical consultations of citizens. The contact is Elena Volochay, 011-380-44-5658934, E-mail: [email protected]
The project of creating a juridical library in Poltava for students, barristers and common citizens. The contact is advocate Yuri Motorny, 011-380-532225760, 011-380-532133358.
The project of publication court resolutions acquitting citizens in mass media. The contact is editor of the magazine ’Business and safety’ Sergey Belenkiy, mailto:[email protected]
The project of holding the second interregional conference on the problem of protecting civil rights with the participation of judges, advocates, investigating officers, mass media, public organizations, civil servants. The contact is Svetlana Garmash from the juridical firm ’Maksima-advokat’, Kremenchug, 011-380-536638970 (No. 5), mailto:[email protected]
Creating the databank of public initiatives in realization of the Constitutionally confirmed rights and freedoms. The contact is NGO ’For professional aid’, Sergey Volochay, mailto:[email protected]