Courts are massively disrupting deadlines of proceedings in cases. Unexpected causes and bitter consequences

The amendments to the Constitution on administration of justice entered into force on September 30, 2016. This became the official commencement of system alteration that outlived its usefulness over 25 years of independence and at the same time compromised by the lack of trust on the part of the population.

The main ideas and goals of the reform were to be a complete renewal of the judiciary and the unconditional deprivation of political pressure on the servants of Themis. The main task set by Ukraine’s foreign partners was to overcome corruption.

In accordance with the reform blueprint, incumbent judges were to be re-certified and submit a declaration of property, family ties, and integrity. Whereby, the detection of invalid data in at least one of them would pave the way for the dismissal of a judge by the decision of the newly created High Council of Justice. At the same time, competitions were announced for vacancy and for the newly created Supreme Court. Judges‘ salaries have increased almost 2.5 times (from 10 thousand UAH to about 80 thousand UAH (360-2860$) for judges of local general court).

The first amendments to the procedural codes entered into force on December 15, 2017, which were, among other things, to simplify the procedure and reduce the term of case consideration of insignificant complexity.

And under the Christmas tree itself, on December 29, President Poroshenko presented Ukrainians with a decree on the unification of courts (Decree №449/2017 “On the liquidation and establishment of local general courts”), which, amongst others, was designed to solve the problem of shortage of judges. The idea is simple – to reduce the number of courts, instead increase the number of judges, while optimizing the cost of maintaining buildings and reducing the number of judges‘ rates.

All these changes, which have been going on in our country for 4 years in a row, were needed in fact only for one thing – to ensure rapid and effective protection of the rights of citizens guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms.

After the reform is implemented, judges‘ salaries are the highest in the country (caption)

However, is this really the case? Has the ongoing judicial reform been able to bring ordinary Ukrainians even one step closer to restoring their violated rights and establishing justice?

The first important aspect of the reform, which we have already mentioned, was the cleansing of the judiciary. A specially created the supervisory authority, represented by the High Council of Justice, was given almost unlimited freedom to punish and dismiss judges. What is the point of interviews with candidates for judges of the Supreme Court, where applicants were asked questions about who they prefer cats or dogs and these answers were further taken into account when deciding on a particular candidate. To avoid possible manipulation of such influence, the composition of the Council was partially diversified by public activists and legal scholars, but time has shown that this has had little effect.

The story of the former judge of the Solomianskyi district court Viktoria Kytsiuk is indicative. In 2017, Viktoria Serhiivna distinguished herself by attacking the police, who wanted to write her a fine for an incorrectly parked car. Then the video from the badge cam flew all over the Internet, and the judge herself became the heroine of numerous doctored photo and Internet jokes.  It would seem that for assaulting police officers in execution, the High Council of Justice should bring the odious judge to disciplinary responsibility at least, but no! A week after the incident, judge Kytsiuk herself wrote a complaint to the High Council of Justice about the actions of police officers and, unlike the complaints of the Heavenly Hundred families about the inaction of judges on the Maidan shootings, Kytsiuk ’s complaint was immediately considered and the actions of the police exceeding official position.

However, the moral character of the judge, despite the generally accepted warnings, may not be so important in comparison with the way this judge applies and interprets the very norm of the law. Seemingly, the president and the parliament, from the „Dobroho Dyva“ of foreign financial aid, finally gave the doers of human destiny a unique chance to save the same destinies from prolonged suffering and exile. The legislator has enabled judges to resolve issues of minor complexity quickly and efficiently in simplified proceedings. Such disputes include, in particular, disputes concerning the fulfillment by public authorities of their legal obligations – the enforcement of fundamental human rights. But, for some reason, judges do not use this chance.
 

„According to the content of my activity, I submit many applications for state-owned and municipal property and privatization, – says Dmytro Kachur, a member of the public council at the State Ownership Fund of Ukraine and a public activist. – In this situation, as a citizen, I demand one thing – that my applications be considered by law, according to Art. 18 of the Law of Ukraine „On Citizens‘ Appeals“, which gives citizens the right to participate in the verification of the application, complaint, be present at the application, complaint“.

 

Dmytro Mykolaiovych faced a painfully familiar problem to anyone who had ever tried to obtain justice in government offices. Ordinary statements about the provision of public information necessary for the effective control of the work of the government institution – the State Property Fund of Ukraine, did not find a proper answer.  However, what to do if the government agency, which is maintained at our expense, does not want to fulfill the duty entrusted to it and tell people about its activities? It is necessary to apply to the Commissioner for Human Rights of the President of Ukraine (namely, this entity is authorized bring to justice appointed officials for providing incomplete, inaccurate or not providing public information at the request of citizens) or settle for directly to court. Kachur tried both of these ways, and both of them led a member of the public council at the State Property Fund of Ukraine (hereinafter – SPFU) to court. And if the court with the holder of public information, represented by the SPFU, for the right to know what is really going on behind the scenes of a state institution looks quite logical and acceptable, then the court arranged by the Presidential Commissioner for Human Rights – Liudmyla Denisova goes beyond common sense.

In his appeal from a judgment of the District Administrative Court of Kyiv of February 25, 2019, on declaring inaction illegal and the obligation of the Presidential Commissioner for Human Rights to properly consider Dmytro Mykolayovych’s appeal, Denisova notes „The Presidential Commissioner for Human Rights discretion decides what actions should be taken in considering citizens‘ appeals… ».

Thus, Lyudmila Leontievna brings into question the provisions of Part 2 of Article 19 of the Constitution of Ukraine, which defines: “public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed Constitution and laws of Ukraine „. That is, the Presidential Commissioner for Human Rights is suing his own people, arguing that the latter has no influence on it.  

     Since the beginning of the year alone, he has filed more than 25 lawsuits against government officials for violating the Law of Ukraine „On Citizens ‚Appeals“ and, most importantly, they all concerned the simple execution of civil servants‘ direct duties in accordance with the requirements of Constitution. However, a judicial recourse did not help him defend his rights full and complete.

„The first lawsuit i lodged on December 17, and we now have spring! ..“, – Kachur complains. In his opinion, the main problem of the common man’s relations with the state today is not even the arbitrariness of officials of various ranks, but the actual impossibility to influence them, both by writing complaints to their leadership and (as it turned out) by going straightforwardly to court. „It also happened that I did not agree with the court decision to appeal which the law gives me 10 days, and my complaint was not accepted because the judge himself delayed the period of consideration of my application, and the time during which he himself did not consider the application was taken into account as a time limit for appeal, ”Mr. Dmytro surprises. He believes that the only way to force judicial reform to work and give a specific result in protecting the rights of citizens is to force the judges themselves to abide by the law: „If the judge once expired – a warning, the second – a reprimand, the third – dismissal.“

 

Commenting on the immediate reasons for the delays in considering citizens‘ appeals and information on specific individuals who have taken at least some responsibility for non-compliance with the law, we referred directly to the court staff, where Dmytro Kachur’s applications have been considered for more than six months. Authorized agent of County Administrative Court Yulia Yakub advised citizens to apply themselves and find out about the progress of their cases, proposing to apply for a solution to the issue of more than six months of inactivity of judges in the form of a written request.

However, it is one thing if judges do not consider it a priority to work with lawsuits to protect the rights of citizens to access public information, pushing them into a long drawer to „better times“, and quite another when it comes to specific facts of criminal offenses that cannot be stopped without the intervention of law enforcement agencies that require a reasoned decision of the judge.

 

„In my activity, I am bound to file lawsuits with law enforcement agencies, because privatization is an area where there are many irregularities. However, the investigative authorities are inactive – it is necessary to sue to force law enforcement officials to provide criminal proceedings, ”Dmytro Mykolaiovych explains another aspect of the problem.  He believes that delays in dealing with complaints about the actions or inaction of the investigative authorities are unacceptable for the judiciary system in general, and the manifestation of such delays has an extremely detrimental effect on the situation. „I am filing an application, according to the law, the examining judge must consider it within 72 hours. Sometimes they were considered in a week, but hell with it! One of the applications was accepted in April, and the advisement was in June (!) So turns out while my application is somewhere, our property can freely be plundered?  „, – a member of the public council is surprised.  

We adverted to a comment to the still existing local general courts, where the activist applied in criminal cases. Authorized agent of the Solomensky District Court of Kyiv Yana Kvitchenko limited herself to explaining that the proceedings in Ukraine are conducted in accordance with the law, and the actions, inaction of individual judges may be appealed to the High Council of Justice in the manner prescribed by law. Pechersk District Court was more cooperative with journalists – the press service of the court, represented by spokesman Vitalii Cherhavyi, noted that due to the implementation of reform of organization of the court now there are some difficulties related to the designation of judges, and with forced relocation and planned merger of courts. Thus, the Pechersk District Court, having two separate premises on Khreshchatyk  Lane and Khreschatyk Street, will continue to administer justice on Volodymyrska Street, 15.

The Pechersk District Court of Kiev will soon move to Volodymyrska Street,15. However, is this a valid reason for not considering the claims of citizens filed in defense of their rights and legitimate interests? (caption)

On the other hand, such arguments presented by the court’s officers seemed unconvincing to us and we decided to ask one of the former employees of Themis whether the shortcomings in the organization of the court process can be a full excuse in the absence of timely and effective protection of citizens‘ rights.

„This reform was not done for that,“ said Dmytro Zaiets, a former judge of the Kyiv Regional Commercial Court  – „You follow this tendency since Independence, each new government is trying to remake the judiciary as one sees fit. Every new leader wants to have an influence on judges, to keep the judiciary under control. The justice system in our country has long been sharpened not in a way to find justice, its main goal today is to determine the needful result“.  At the same time, Dmytro Hryhorovych believes that the system alone should not be blamed for the lack of an effective mechanism for protecting the rights of citizens. In fact, judges may not be secretly interested in deciding a case in favor of one or the other party. However, it ought to be noted that there is a category of so-called „rotten cases“ in judicial circles. These are cases that, due to their influence and connectivity with other processes, may result in adverse consequences in the future, the extent and strength of which is not yet possible to determine for the judge himself. That is, in fact, we have a situation when some judges withdraw from resolving „problematic“ disputes or try to delay the moment of their resolution as much as possible – maybe something will change, be resolved, be a spent force …

On the contrary, the unwillingness of individual judges to take on the additional burden of responsibility cannot in any way constitute justification of rightlessness of people, in which they are thus actually driven by judicial inaction.  Just as a doctor cannot refuse to operate on a patient because of the possibility of his death during the operation, just as a firefighter cannot but rush into a burning building knowing that there may still be people alive, so a judge cannot shrink before deciding a case. This is particularly so with criminal proceedings, where subject matter is already the human life, because by holding over the case-handling in criminal proceedings, the judge himself involuntarily becomes an accomplice to the crime, giving feasible criminals the opportunity to continue their wrongful acts without the decision of the examining judge. 
 

Dmitry Perov , founder of the NGO “Green Minute”

Translated by Polina Bevz

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