war crimes in Ukraine

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Our jurisprudence comes to a crisis phase

Georgiy Mamonov, Kyiv
In the good old times of socialism most of cases concerning the violations of human rights were solved either out of court (communist party, state and trade union organs took the decisions about the complaints of citizens) or were not solved at all. Civil affairs made a small proportion in court practices.

Nowadays the court becomes the basic, or even the only, instance for protecting civil and other human rights. The number of cases on protecting honor and dignity, labor and property conflicts has increased abruptly. In 2000 the number of civil cases equaled 76.1% of the total number of cases considered by courts. At the same time the number of criminal cases increased too. Besides now the court has the duty to apply coercive reforming measures to minors.

Since the institute of people’s representatives in district courts was liquidated, a judge solves practically all the cases by himself. He is responsible only before God, when he inquires the Law and his consciousness before taking a decision on behalf of the state and court.

In 2000 courts considered 1,975,209 cases, that is 13% more than in 1999. The average number of cases solved within a month by one judge reached 54. This number was 72 in the Volyn oblast, 70 in the Crimea and 60 in the Kherson oblast („Visnyk Verkhovnogo Sudu Ukrainy“ -- „The Herald of the Supreme Court of Ukraine“, No. 4, 2001). The average monthly load of a judge of an oblast court reached 13 cases. This is too much. District courts carry the main burden in court practices, since they consider cases of every kind. That is why judges must answer very high criteria and must permanently improve their professionalism. Appeal courts consider more complicated cases, which also requires high professionalism from the judges.

In 2001 the load on courts increased again. They began to consider the cases on violating traffic rules, which had been considered before by the road police. At last, the courts have begun to issue search and arrest warrants. All this may result in the overloading of courts, which, in its turn, will make the judges incapable of careful consideration of cases and issuing the decisions, which are based on laws, and take account of all substantial circumstances.

Here are some examples from the court practices, which characterize the real situation in courts. IN the Moskovskiy district court of Kyiv a case was considered. The judge absent-mindedly listened to the prosecutor, the advocate and the accused – they all confirmed that there was no fact of theft, but rather of swindling; witnesses asserted the same. Nonetheless the verdict quoted the accusation conclusion, which confirmed the theft. The Kyiv city court corrected the mistake.

Judge Tsokol from the Starokyivskiy district court of Kyiv stubbornly – 10 times – issued the obviously incorrect decisions on the affairs concerning returning of money investments from the bank, which went bankrupt, in order not to be involved in these doubtful affairs. These decisions were regularly cancelled by the city court.

There are many examples of this sort. The public is convinced that judges take bribes or are interested in some other manner in issuing unjust and illegal decisions and verdicts. Now, because of the overloading of judges, the situation may become such that a bribe or influence would be needed just to make the judge consider the case carefully and take a legal and unbiased decision or verdict.

The number of reconsidered cases, decisions and verdicts is negligent – 5%, the results of reconsiderations are very infinitesimal. What can be the quality of reconsideration in the Kyiv city court two reconsiderations were appointed to be conducted by the same judges in the same hall at the same time.

To be just, this is not the usual routine. For example, the well-known case of B. Savlokhov was considered by the same judge collegium at the same time, but in different halls (at least so it was written in the official announcement).

After the realization of the so-called „small court reform“ some positive changes did happen. For example, in the Kyiv appeal court the cases now are considered not during five minutes, but sometimes about half an hour, and the court now works not once a week, but all weekdays. Perhaps, these are all positive changes. To study the problem in more details, one must monitor the situation for a noticeable time.

The quality of considering civil affairs raises is alarming. The number of such cases in courts has substantially increased, many of these affairs concern civil and human rights. In my opinion, many demands of the new Civil-Procedural Code (CPC) of Ukraine are rather inadequate, and they must be immediately reconsidered by legislators. For example, the demand to hand in complaints against court decisions in civil cases only in typewritten form will hinder, first of all, the poorest citizens. I believe that human rights protecting organizations must fight for canceling this obviously unjust and discriminating norm stipulated by Article 293 of the CPC, since this norm violates the right for court protection guaranteed by Article 55 of the Ukrainian Constitution.

The operating procedure of cassation in civil cases impedes the procedure and will lead to an even more overload of judges and, correspondingly, to further deterioration. The right to change or denounce court decisions is given only to court chamber, to which the affair may be passed by the judge collegium after the consideration. Article 328 of the CPC envisages passing the affair to the complete composition of the court chamber of the Supreme Court only infrequently, only when rough distortions of the law were committed during the consideration. More complicated cases have, unfortunately, very few chances to be considered by the court chamber. In fact, now the judges of the court chamber of the Supreme Court usually respond with a standard answer repeating Article 328 of the CPC and containing the refusal to pass the case for the consideration by the complete composition of the court chamber. This happens even with those cases, which have a great public importance and must be later used by courts while considering similar cases. Although, according to Article 328 of the CPC the court chamber of the Supreme Court ought to do it. So, for example, the complainers in the affairs of returning money from the State bank of Ukraine received formal refusals from the Supreme Court. These cases, obviously of great public importance for the entire Ukraine, were not considered by the complete composition of the court chamber. The answer takes approximately one and a half page of the text, which was compiled by the judge collegium during a month after taking the decision. Another month the special department of the Supreme Court in charge of court activities prepared these court rulings to be mailed.

Even if a case will somehow get to the complete composition of the judge collegium, the probability of the canceling or changing the decision is close to nil. This is envisaged by Article 336 of the CPC, where the reasons are listed, which enable the Supreme Court to cancel a decision. Such reasons are mainly the violations of the norms of the procedural law, which may be easily removed in the process of considering the appeal. For example if the decision was not signed by judges, or if the case was considered in the absence of the sides or by am improper court composition.

These fuzzy and ambiguous clauses adopted in 2001 will result in getting more problems. According to the information given by the administration of the Supreme Court, during the last year the Court received 30-40 thousand surveillance complaints.

In 2000 oblast courts considered 5.4 thousand surveillance complaints, a part of them was satisfied. Thus, oblast courts managed to correct a part of court errors.

The new legislation of 2001 deprived oblast courts of the right to reconsider decisions and verdicts, which already came into effect. Since only the Supreme Court has now the right to consider cassations, the flow of the complaints will increase, quality of considerations will decrease and the number of uncorrected court errors will accumulate. More and more facts of abusing human rights will not be legally solved or will be solved illegally.

Human rights protection activists must improve the norms of justice by addressing MPs to suggest the improvement of the legislation practices. Human rights protectors must, jointly with advocates’ NGOs, generalize court practices, make public the facts of court misuses and illegal court decisions.

The absence of glasnost, the absence of public knowledge about court practices generates the irresponsibility of courts.
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