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IV. CiviL and PERSONAL rights in ukraine: THE STATUS OF LEGISLATIVE SECURITY AND EXERCISE |
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According to the Constitution, state authority in Ukraine is exercised on the principles of its division into legislative, executive and judicial power. The latter is called upon to translate into reality an important part of state authority – justice and compliance with legality, protection of the constitutional rights and freedoms of citizens. Ukrainian citizens are exercising ever more frequently their constitutional right to judicial protection and to challenge in court the decisions, actions or omission of bodies of state authority, bodies of local self-government, officials and officers, as provided for by Article 55 of the Ukrainian Constitution. Courts of general jurisdiction, guided by the laws On Judicature of June 5, 1981 and On the Status of Judges of December 15, 1992, continued operating in 1999 under extremely unfavorable circumstances when reform in the judiciary was actually non-existent. They carried out a lot of work in the judicial protection of the citizens’ rights and freedoms: in 1999 courts of the first instance completed processing 877,700 civil right cases, i.e. by 38.8% more than in 1998; out of this number judgment was passed in 772,600 cases. Of the lawsuits (applications, claims) 735,500 were allowed, or 95.2% of the cases decided on their merits. In all, the courts of general jurisdiction in 1999 examined and completed processing 220,9000 criminal cases, i.e. 5.3% less than in 1998, and rendered judgment in 178,500 cases, sentencing 227,200 persons and applying enforcement measures of a medical nature in relation to 1,300 persons. Of the examined civil cases 30% concerned the protection of family rights and 20% violations of the constitutional right to be remunerated for work in good time. The amount of unpaid damages claimed by citizens by legal action for recovery amounted to almost UAH 372 million, of which UAH 311 million were awarded to the claimants. Also, 979 suits for the protection of honor and dignity were examined, and the courts awarded UAH 2.9 million in moral damages to the plaintiffs. Citizens are now more frequently seeking relief at law for the protection of their rights concerning recovery of damages caused to their health or death. Such cases numbered 8,627, i.e. three times more than in 1998. The courts carried out a lot of work to protect the citizens’ rights that were infringed due to administrative law infraction. In 1999 district courts examined and rendered judgment in 393,900 such cases – about the same number as in 1998. Most of the cases concerned disorderly conduct associated, as a rule, with offenses against the honor, dignity, inviolability and safety of citizens. In such cases rulings relative to 144,200 persons were passed, i.e. 39.3% of their total number. Cases were examined concerning 52,200 persons for their contemptuous refusal to obey a legitimate order, for failure to comply with the demands of a militia or for insulting him. The number of examined cases on illegal production, acquisition, storage, and trafficking in drugs or psychotropic substances without the aim of their sale in small doses increased by 30.5%; there was a twofold increase in cases of violated procedure for engaging in private business, for which 243,300 persons were adjudged guilty; and a fivefold increase in cases of administrative law infringements concerning violation of the right to an environment that is safe for life and health as provided for under Article 50 of the Ukrainian Constitution. Also, 24,600 cases on administrative law infringements in trade were examined. The guilty were adjudged to pay UAH 7.4 million in penalties as well as almost UAH 1 million for material damages caused by the infringements. In the opinion of the Commissioner for Human Rights all these facts prove that in spite of the current difficulties judicial protection of human rights and freedoms is gradually acquiring its constitutional significance. And still the Commissioner for Human Rights is receiving numerous appeals that address problems on ensuring this constitutional right. Their analysis shows that such complaints are justified. The main reason behind them is the inadequate organization of the courts’ work. Citizens suffer the most from judicial red tape that has become typical with a lot of courts. In 1999 out of all cases courts considered in excess of the legally established time limit 29.6% (52,7000) criminal and 15.6% (140,000) civil cases respectively. At times citizens are trying for years to have their infringed rights restored, especially in civil cases. In December 1999 the Commissioner for Human Rights received a petition concerning red tape in the consideration by the Kirovograd oblast court of the criminal case of Mr. O.Shyliava and S.Kudria charged under Section 3, Article 142 of the Criminal Code (robbery with infliction of grave bodily harm, or committed with burglarious entry into a home, or by a particularly dangerous relapsed criminal) and under items “a,” “h” and “j,” Article 93 of the Criminal Code (first-degree murder). An examination confirmed these facts. The court received the case on December 23, 1998. Throughout 1999 it was examined in court session only two days – February 10 and April 26, and nine times the hearing of the case was postponed for different reasons, including in November and December owing to the premises of the court being unheated. Only when the complaint was taken under the control of the Commissioner was the hearing set for January 19, 2000. It took the court of Horodyshche district, Cherkassy oblast more than a year and a half to examine the criminal case against Mr. R.Lysenko charged under Section 2, Article 215 of the Criminal Code (violation of traffic rules and operation of a vehicle that caused the death of the victim or inflicted grave bodily harm on him). The case arrived at the court on July 6, 1998, its hearing was tabled time and again, owing to formal circumstances included, and only after the case came under the scrutiny of the Commissioner for Human Rights in October 1999 the hearing of the case was set for November 30 that year. For almost two years the city court of Uzhgorod processed the case of M.Husak, Y.Blonsky and O.Honta charged under Section 2, Article 168 (abuse of power or malfeasance in office) and Section 2, Article 172 of the Criminal Code (forgery). The court considered the case in October 1999 only after H.Husak’s relatives appealed to the Commissioner for Human Rights. The courts’ disrespectful treatment of victims, infringement of their rights and red tape is confirmed by quite a few similar facts. In a letter addressed to the Commissioner in December 1999 the chairman of the Chernivtsi Association for the Protection of the Rights of Citizens Defrauded by Trust Companies complained that in December 1996 a group of citizens appealed to the Lenin city district court in Chernivtsi for recovery of damages inflicted on them by the Ksen-Trust-Bukovina Trust Company. Two years later the case was referred to the Pechersk city district court in Kyiv, since the defendant resided in Kyiv. Throughout 1999 representatives of the defrauded visited the Pechersk city district court six times, but the court did the examine the case on points of fact, while the defrauded were incurring substantial expenses. To put an end to the red tape, the victims addressed the Supreme Court to have the case sent back to Chernivtsi, so that the defendant would be traveling to the court sessions instead of the victims going to Kyiv all the time. However, the Supreme Court did not satisfy the appeal on change of jurisdiction and as of January 1, 2000 no hearing of the case was yet initiated. Some judges do not heed the charges leveled in the actions with proper attention and inadequately assess the evidence of the victims in civil proceedings, thereby rendering nonobjective judgments or grossly violating the rights of citizens. Owing to such errors 5,895 sentences were revoked and 4,715 changed in criminal cases by cassational and supervisory procedure in 1999. The quality of consideration of civil cases has become worse. Cassation courts and judicial supervision bodies revoked and changed 21,068 judgments. Besides, 970 cassation rulings by court chambers in civil cases handled by oblast courts were revoked as well as 142 writs by boards of oblast courts. According to the observation of the Supreme Council of Justice of Ukraine, there is a negative tendency of growth in low-quality consideration of cases, which speaks of the fact that legal nihilism has also penetrated the ranks of the judiciary. When examining cases, judges frequently ignore the requirements of law. Some civil cases are under consideration for years. But far from every such incident of violations of the judges’ professional duties is properly assessed by qualification commissions and viewed as a breach of official oath. Also, the low professional skill of many judges impacts negatively on the judicial protection of citizens’ rights. Economic reform generates new legal relations, especially in finance, banking and taxation, but not all judges have sufficient knowledge to adequately settle disputes arising in such relations. According to Article 30 and Article 38 of the Law On the Supreme Council of Justice, the Commissioner for Human Rights is empowered to appeal to the Supreme Council of Justice on initiating disciplinary proceedings to have judges discharged. In 1998-1999 the Commissioner repeatedly exercised this right. Nonetheless, the Commissioner holds that the mechanism of such cooperation is in need of improvement. The analysis of the letters, complaints and appeals addressed to the Commissioner shows that the exercise of the constitutional provision to judicial protection of the citizens’ rights and freedoms is now and again brought to naught because of errors and breach of legality by bodies conducting inquiries and investigations. In 1999, for instance, 25,700 criminal cases (every tenths of those examined) were recommitted because of incomplete investigation, and gross violations of the requirements of criminal and criminal procedure legislation. Since these violations cannot be rectified during court proceedings, judges recommit the cases for additional investigation in order to avoid bringing charges against citizens without a sound reason. After examining all the circumstances involved, bodies of preliminary investigation close a considerable part of these cases for lack of evidence. The Commissioner holds that such practice is frequently used to conceal facts of citizens being held criminally liable without sound reason and of bodies of preliminary investigation violating laws. However, an ever-growing number of judges are becoming more objective and impartial in rendering judgments. In 1998-1999, for instance, 490 persons were discharged from criminal liability and 472 persons were acquitted, i.e. it was recognized by judicial procedure that 962 persons were held criminally liable contrary to law. The Commissioner is concerned that in many cases the accusations are based solely on the evidence the charged themselves gave, as a rule, at the outset of the investigation. Later on they deny their evidence, explaining that they had given it under the influence of blackmail, intimidation, physical violence and other unlawful methods of investigation. As V.Boiko, Chairman of the Supreme Court of Ukraine, observed at the 4th Congress of Ukraine’s Judges on December 15, 1999, quite a few impermissible shortcomings have been registered in the work of law enforcement bodies: from falsification of records of interrogation of persons who had not been interrogated at all, reconstruction of the circumstances of an offense by blind suspects to infliction of bodily harm on innocent citizens. When questioning witness D. in the hearing of a charge against Mr. N. (under Article 102 of the Criminal Code – intentional average bodily harm) by the Novozavodskyi city district court in Chernihiv it was established that during the preliminary investigation the investigator did not subpoena the witness, but questioned him over the telephone, after which the report was dispatched to his home by courier for familiarization. Regrettably, some judges, seeing that evidence is lacking to charge a person under investigation with a crime, refer the case for additional investigation instead of protecting the rights of the citizen and passing a judgment of acquittal. The Commissioner for Human Rights points out that some judges, in sustaining their mutual corporate interests with law enforcement bodies, disregard the fact that a lawful and substantiated absolution is an important method of avoiding convicting the guiltless and of protecting the human rights, freedoms and legitimate interests of people. In 1999 courts allowed 1,419 appeals against the actions of investigation bodies (39.6% of all appeals filed) and passed 7,908 separate rulings, including 3,346 rulings on breach of law during inquiry and preliminary investigation. One-third of the rulings were passed owing to gross violations of procedural terms of investigation and detention. Every tenth ruling concerned infringement of citizens’ rights to judicial protection as secured in Article 59 of the Ukrainian Constitution. The Commissioner holds that the growth in infringements of citizens’ rights during judicial examination of cases also speaks of the urgent need for prompt reform of the judiciary. The reform should not be formal, but ensure in reality cardinal changes for the better in the protection of citizens’ rights. President Leonid Kuchma emphasized this idea in his address to the 4th Congress of Ukraine’s Judges, when he said: “… it should not be an exercise in external innovation or redecoration, but a transformation of the court of law into an important and prestigious body of state authority whose highest priority is the protection of human and civil rights and freedoms.” Thereby the President reiterated the need for consistently translating into reality the European values, of which human and civil rights and freedoms are of the highest priority in all legal relations. The Commissioner for Human Rights, who participated in the work of the forum of judges, stressed in her speech that “an independent, strong court of law is not only the basic guarantee of separation of powers, but also the main factor of protection of human rights and freedoms.” The Commissioner addressed a number of issues concerning judicial protection of citizens’ rights and freedoms and cardinal improvement of this work as well as the judiciary’s interaction with the Commissioner for Human Rights. It was pointed out that the Transitional Provisions to the Ukrainian Constitution would lose effect on June 28, 2001 and therefore the function of detention in custody should be delegated to the courts as promptly as possible by introducing amendments to the Code of Criminal Procedure. The Commissioner stressed that “courts of law and the Commissioner for Human Rights, as stipulated by Article 55 of the Ukrainian Constitution, provide the mechanism that our civil society needs so much – protection of human and civic rights in court and out of court.” Article 29 of the Ukrainian Constitution stipulates that every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and under procedure established by law. Everyone detained has the right to challenge his detention in court at any time. This provision must really protect people against unlawful deprivation of liberty and is being currently enforced in practice. In 1999 the accused and their lawyers filed appeals against 2,623 decisions of public prosecutors who ruled detention in custody as a measure of restraint. Courts allowed 938 of these appeals, i.e. every third. Besides, during trial release from custody was granted to 9,292 persons as such who did not commit either deliberate or grave offenses and whose isolation from society was groundless. The principle of the presumption of innocence. It is among the fundamental principles of the law of criminal procedure in every civilized state. Its basic provisions are secured in Article 11 of the Universal Declaration of Human Rights and in Article 14 of the International Covenant on Civil and Political Rights. The constitutional principle or the presumption of innocence, as secured in Article 62 of the Ukrainian Constitution, stipulates that “a person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his guilt is proved through legal procedure and established by a court verdict of guilty.” This provision of law is secured in Section 2, Article 15 of the Code of Criminal Procedure of Ukraine. The Commissioner for Human Rights considers presumption of innocence to be one of the important principles of criminal procedure that secures the protection of human and civil rights and excludes unsubstantiated and unlawful accusation and conviction. Guilt can be established only by methods provided for in the Code of Criminal Procedure and only upon presentation of sufficient, objective and impartial evidence immediately relevant to the criminal case. Before the conclusive decision on a criminal case and adjudgment of guilty under a court verdict the accused may not be treated as someone guilty or be referred to as a criminal in public, in the mass media or in official documents. The highest judicial authorities have repeatedly insisted on compliance with the principle of innocence. In particular, the Resolution “On the Application of the Ukrainian Constitution in the Administration of Justice” by the Presidium of the Supreme Court of November 1, 1996 determinedly reminds judges that “when hearing criminal cases there should be strict compliance with the principle of the presumption of innocence secured in paragraph 1, Article 62 of the Constitution by which a person is presumed innocent of committing a crime until his guilt is proved through legal procedure and established by a court verdict that came into force. It is inadmissible to make the accused (defendant) prove his innocence. Judges should be reminded that in conformity with paragraph 3 of the said article all doubts concerning the proof of guilt of a person should be interpreted in favor of the latter.” Relevantly, the principle of the presumption of innocence determines the legal status of the defendant not only in criminal procedure, but also in public relations. Before a verdict of guilty enters into force the accused, who is held in custody, retains the right to take part in elections, dispose of his apartment or house at his own discretion, he may not be dismissed from his job or expelled from an educational establishment. In the Ukrainian Constitution the principle of equality of citizens before the law and the court is referred to the basic principles of judicature. However, the law provides for a much shorter list of rights of the injured parties than those of the other parties to the criminal process. This puts the injured party in an unequal position compared with the accused. The largest number of violations of the rights of the injured parties occurs when the latter claim damages caused by an offense. Employees of crime detection departments, investigators and judges are more concerned that the state recover damages and pay less heed to an individual citizen’s claims. In violation of Article 34 of the Ukrainian Constitution, which guarantees everyone the right to freedom of thought and speech, courts now and again pass unjustified judgments on compensation for damages by employees of the mass media. Small wonder because the extent of damages for intentional murder runs into several thousand hryvnias, while publication in the mass media of information regarded as false without so much as a proper substantiation carries a penalty of millions of hryvnias. The Commissioner believes that the unfair decisions of judges with regard to the extent of moral damages have been occasioned not only by the failure of legislators to set threshold amounts and definite criteria of calculation of damages, but also by the reluctance of certain judges to follow the principle of expediency (read in greater detail about this issue in the section devoted to freedom of speech). More often than not courts make errors in the choice of punitive measures, thereby infringing the rights of both the defendants and the injured parties. For instance, in 1999 in response to appeals predominantly by injured parties against lenient punishments, 1,323 verdicts were revoked, i.e. 29.8% of all those revoked. Because of incorrect qualification of criminal actions of the accused, 1,804 verdicts were changed, i.e. 40% of all changed verdicts. Cases of 156 persons were referred to new judicial examination because of groundless acquittal. There have been cases when inadequate measures of punishment were prescribed for commission of minor offenses. For example, Mr. Ts., charged under Article 141, Section 3 of the Criminal Code (domestic burglary), was sentenced by the Kovel area court in Volyn oblast to ten years of deprivation of liberty: in a state of alcoholic intoxication he invaded Mr. S.’s home where he stole five kilograms of sugar. Since the cost of the stolen property was negligible, the Supreme Court of Ukraine judged this punishment as excessively grave and reduced it to three years of deprivation of liberty. There are frequent cases when law enforcement bodies groundlessly bring charges against citizens, while courts, without properly examining the essence of the charges, sentence the accused. For example, by verdict of April 2, 1999 the Lychakiv city district court in Lviv sentenced Mr. Horsky (charged under Section 3, Article 84 of the Criminal Code with application of Article 44 – theft of state property committed repeatedly or by a group of persons) to two years of corrective labor, while Mr. Onatsky and Mr. Zysky (charged under Section 2, Article 81 of the Criminal Code – theft of state property by a group of persons) were sentenced to one year of corrective labor: in June 1998 they stole UAH 34 worth of sand that belonged to a road building company. The Judicial Board of the Supreme Court of Ukraine revoked the sentence, arguing that the cost of the stolen property was of little value to the national economy and for this reason there were no formal components of the said crime in the actions of the three accused. In 1999 the Judicial Board of the Supreme Court of Ukraine revoked sentences passed on 12 persons and closed their cases. The Commissioner for Human Rights holds that failure to execute court decisions is among the most acute problems of judicial protection of citizens’ rights and insurance of justice in Ukraine, since it reduces to naught the entire sense of judicature. Complaints against non-execution of court decisions account for a substantial part of the appeals on violations of human rights addressed to the Commissioner as well as to the European Court of Human Rights. Because of chronic non-execution of court decisions our state has been gaining a negative international image in terms of human rights compliance. In their appeals to the Commissioner citizens frequently address the issue of the reasonable time limit for the execution of court decisions. In 1999 courts forwarded to the state judgment execution service 1.2 million documents, including 103,200 for recovery of UAH 124,400 million in damages, 138,800 rulings on administrative cases involving UAH 27.2 million in penalties, 264,700 decisions on labor disputes worth UAH 369.3 million in claims, 104,300 alimony awards, 433,100 judgments on exacting penalties, duties, etc. However, employees of the judgment execution service often groundlessly refer to the impossibility of executing court decisions because of the defendants’ lack of resources. So it is small wonder that of the total number of appeals to bodies of justice 65% account for complaints against dereliction of duty by this service in executing court decisions. In 1999 the number of such complaints increased almost by half as much again compared with 1998. The responsibility for such a state of affairs is borne primarily by the Ministry of Justice as well as 747 district and city directorates for justice and departments of the state judgment execution service, which so far have failed to ensure the protection of citizens’ rights as far as execution of court decisions was concerned. Given the large scale and gravity of violations of constitutional rights related to the non-execution of court decisions, the Commission for Human Rights has taken such appeals under personal control and refers them to local bodies of justice for thorough examination and restoration of citizens’ rights. The majority of such instruments of the Commissioner’s response are resolved with a positive outcome. For example, in January 1999 a group of 19 residents of Kherson oblast addressed an appeal to the Commissioner against the reluctance of the oblast Directorate for Fire Protection to pay off wage arrears in execution of a court decision of September 25, 1998. The appeal was scrutinized by the Commissioner and referred to the Kherson Oblast Directorate for Justice. After appropriate steps were taken, the appellants received UAH 7,000 in back pay at February 16, 1999. Mr. Yaroshenko, a resident of the Autonomous Republic of Crimea, complained to the Commissioner in November 1999 about the non-execution of a court decision on recovery of UAH 727 in back pay, which she could not receive for almost six months. On November 15, 1999 the Commissioner for Human Rights forwarded a letter to the Main Directorate for Justice in the Autonomous Republic for the latter to examine the complaint and take respective measures. By November 24 that year repayment of the back pay was effected, of which the Commissioner was duly notified. In November 1999 Mr. V.Romaniuk of Vinnytsia oblast addressed an appeal to the Commissioner to the effect that the officials of the state judgment execution service of Chechelnyk district failed to execute a court decision on his claim of UAH 3,000 in back pay from the Chechelnyk Closed Joint-Stock Company. The Commissioner forwarded an appeal to the public prosecutor’s office of Chechelnyk district to have the cited facts checked and took its execution under personal control. The public prosecutor’s office confirmed the cited facts to be true and since the company in question lacked funds, Mr. Romaniuk received against his back pay one cow, one ton of grain and the cost of his services for processing sunflower seeds; also, the proceeds gained from the sale of the company’s distrained motor vehicles went for fully paying off his wage arrears. In October 1999 the Commissioner for Human Rights was addressed by M.Y.Holik, a resident of Nova Kakhovka, who, contrary to a respective court decision, could not recover throughout two years UAH 9,270 in back pay and other payments from the Pivdenelectronmash Joint-Stock Company in Kherson oblast. After the intervention of the Commissioner in November 1999, the state judgment execution service distrained and sold the debtor’s property and fully paid off the debt. Compliance with operative legislation by many officials remains to be a problematic issue, because it causes violations of citizens’ rights to a considerable extent. The past few years have seen an increase in the number of complaints filed with judicial bodies against the unlawful actions of bodies of state authority and officials: in 1998 they numbered 12,400 (43% more than in 1997), while in 1999 there were 13,500. The low legal culture of a lot of managers generates mass violations of the citizens’ labor right. In 1999 courts examined 5,618 lawsuits on violations of labor rights and allowed 3,149 of them. A total of UAH 2.8 million in compensated back pay was awarded to citizens whose jobs were restored. But this amount was exacted mostly at the expense of the state, because the guilty officials were charged only UAH 327,800 in penalties, i.e. 11.5% of the amount adjudged in favor of the plaintiffs. Funding and maintenance of judicature. In accordance with Article 130 of the Ukrainian Constitution the state ensures funding and proper conditions for the operation of courts and the activity of judges. Shortage of funding was a subject of discussion for years, but practically no real steps have been taken to improve the situation to this day. In consequence of shrinking budgetary funding of the judiciary, courts in a number of regions are denied supply of heat and electricity as well as provision of postal and other services needed for administering justice. At January 1, 2000 courts had run into UAH 10.9 million in debts for these services. In response to the constitutional appeal of the Supreme Court, the Constitutional Court of Ukraine adopted on June 24, 1999 a decision, which pointed out, in particular, that a special procedure for funding courts to ensure proper conditions for the complete and independent administration of justice is one of the constitutional guarantees of their independence, while the cutback of allocations for the maintenance of judicial bodies was recognized as unconstitutional. When the Supreme Court filed an appeal on the unconstitutionality of articles 19 and 42 of the Law On the State Budget of Ukraine for 1999 regarding the financial security of courts and the right of the Cabinet of Ministers to independently limit allocations for their maintenance, the Commissioner for Human Rights forwarded on June 1, 1999 its conclusion to the Constitutional Court in support of the position of the Supreme Court. In the conclusion it was pointed out, in part, that inadequate funding of the judiciary is dangerous as far as the necessary and sufficient insurance of judicial projection of constitutional rights and freedoms is concerned, while its continued reduction “paralyzes the activity of courts and threatens the constitutionally guaranteed rights and freedoms of citizens to judicial protection.” The decision of the Constitutional Court incorporated the text of the Commissioner’s conclusion and allowed the constitutional appeal. For all that, the Cabinet of Ministers lifted the budgetary constraints only in late October 1999 instead of within one month as the Constitutional Court had ruled. In the period from July to October 1999, judicial bodies remained underfunded. Budgetary allocations for the maintenance of oblast, district (city) and military courts within this period were a mere 59% of the required needs, while in November-December 1999 they amounted to 72.7%. Putting it otherwise, the government actually did not comply with the decision of the Constitutional Court. Therefore the President issued the Edict On Additional Measures for Ensuring Proper Conditions for the Activity of Judges and Operation of the Courts on December 15, 1999. The Cabinet of Ministers was charged with providing all the allocations under the state budget for 1999. However, the government failed to execute the requirements of the Presidential Edict of 1999. Notably, in violation of the requirements of articles 95 and 130 of the Constitution and Article 19 of the Law On the Budget System of Ukraine, the Cabinet of Ministers resolved on November 24, 1997 to approve the Procedure for the Receipt of Funds by Courts, Justice and Law Enforcement Bodies for Maintenance out of the Budget of the Autonomous Republic of Crimea and Local Budgets. Funding from local budgets is essentially a form of financial influence on courts, which puts in doubt the constitutionally guaranteed independence of the judiciary as well as the citizens’ constitutional right to judicial protection. For this reason courts repeatedly raised the question about the urgent need to have courts of general jurisdiction funded by the Supreme Court. The Commissioner for Human Rights holds that it is not admissible to fund the referred to categories of courts through the Ministry of Justice because, apart from the aforesaid, such a practice is a gross violation of the constitutional principle of separation of state power into legislative, executive and judicial powers. The issue of safety of judges. In the opinion of the Commissioner for Human Rights state protection of judges, court employees, and persons taking part in judicial procedure is unsatisfactory and does not guarantee the objective and impartial consideration of cases as a guarantee of efficient protection of citizens. With the growth of organized crime there have been widespread attempts at obstructing the administration of justice. For example, in 1998 there was an armed assault on the Artemivsk city district court in Luhansk, during which Judge V.Sbitneva sustained automatic firearm wounds. On April 14, 1999, in the premises of the Halytskyi city district court in Lviv after the announcement of the verdict there was an attempt on the life of Judge I.Seriodkina who was gravely wounded in the head by a gun fired by the father of the accused. At the district level a lot of courts are housed in premises that are unfit for administrating justice; they lack proper conditions to ensure public order and the security of judges, court employees and parties to the court proceedings. In this respect nothing has been done so far to change things for the better. Given the noble goal of cardinally improving judicial protection of human and civil rights and freedoms and raising it to the level of European standards, the Commissioner for Human Rights deems it necessary that Parliament speed up its work for setting up a legal framework for judiciary reform, considering and adopting a new law on the judicial system, new criminal, civil, administrative and procedural codes and other legislative acts as a groundwork for reforming the judicial system and creating a new legal base for administering justice and real judicial protection of human rights. The constitutional right to legal assistance is provided by lawyers, notaries and persons granted licenses for legal practice. But judging from the appeals addressed to the Commissioner for Human Rights, the provisions of Article 59 of the Ukrainian Constitution relative to the right of everyone to legal assistance is inadequately translated into reality. Article 59 of the Ukrainian Constitution stipulates that the advocacy acts to ensure the right to a defense against accusation and to provide legal assistance in deciding cases in courts and other state bodies. As of January 1, 2000 Ukraine numbered 151 registered lawyers’ associations embracing 1,660 lawyers. During the past few years, the advocacy has become increasingly effective in protecting citizens’ rights and freedoms. Its activity is governed by the Law On the Advocacy, the Code of Criminal Procedure and by other standard documents. Nowadays millions of citizens solicit the assistance of lawyers to handle the most diverse problems of violations of constitutional rights. In 1999 members of lawyers’ associations alone counseled citizens on 106,000 occasions, drew up 63,000 documents, performed 19,000 assignments in criminal cases, appealed against 7,000 actions of bodies of preliminary investigation, performed 21,000 assignments in courts hearing criminal cases and 16,000 assignments in civil cases, and appealed against 5,000 actions of judicial bodies. But at the same time the Commissioner for Human Rights has been receiving quite a few letters to the effect that legal assistance is becoming unaffordable. Not everyone had enough resources to pay for a lawyer’s services. For example, at January 1, 2000 legal counseling in Kyiv cost UAH 20, drafting of a legal document – UAH 80 and more, and a lawyer’s visit of the arrestee – up from UAH 110. One day of a lawyer’s work in a court hearing of a criminal or civil case costs UAH 270 and more. Therefore, given low wages and the chronic delay of their disbursement makes it impossible for everyone to exercise his constitutional right to legal assistance. Hundreds of the appeals addressed to the Commissioner for Human Rights come from pensioners and invalids asking for assistance in legal counsel. There have been frequent cases when the lawyers themselves addressed the Commissioner to assist in the protection of their clients’ rights. In particular, Lawyer N.Bilyk turned to the Commissioner in July 1999 after he failed to gain a legal solution in his appeals to the bodies of preliminary investigation in Odessa oblast concerning his client S.Zinoviev who was illegally held in custody in a case framed up by the investigator. The appeal was taken under control of the Commissioner and forwarded to the Ministry of Justice and the public prosecutor in Odessa oblast for additional examination. The Ministry of Justice notified the Commissioner that the facts proved to be true. As a result, the deputy manager of the investigation department was disciplined. The arguments Lawyer O.Holota cited in his appeal addressed to the Commissioner for Human Rights in September 1999 were also completely corroborated. He wrote how the rules of the Code of Criminal Procedures were violated in a criminal case against Mr. D.Piddubny charged under Section 3, Article 1482 (evasion of payment of taxes in especially large amounts), Section 2, Article 143 (fraud resulting in heavy damages to the injured parties), and Section 2, Article 172 (forgery) of the Criminal Code. And such examples are many. Besides, current legal practice is pursued in circumstances that negatively effect the protection of citizen’s rights and makes it impossible to fully ensure the constitutional rule of the right of everyone to legal assistance. In particular, the Commissioner for Human Rights is of the opinion that the provision of Article 4 of the Law On Entrepreneurship should be revised as far as legal practice as a business is concerned. More often than not licenses for legal practice are granted without thorough examination of the applicant’s professional knowledge and expertise. Lawyers who are granted licenses generally lack necessary guarantees of their professional activity; they do not enjoy the protection of professional confidentiality and may be interrogated on questions that came to their knowledge in the performance of their duties. What should also be improved are the rules of the Code of Civil Procedure on representation in a court session. Today persons who are not even familiar with jurisprudence provide legal assistance by instruction; through their incompetent actions they cause damage to their clients and hamper the administration of justice. This holds also true for provision of legal assistance by unauthorized persons who lack respective legal knowledge to this end. They bear absolutely no responsibility for the quality of the services provided. Frequently such functions are performed by persons who have compromised their integrity and occasionally by persons with a criminal background. The absence of a legislative definition on the provision of legal assistance at no charge makes legal protection extremely difficult. Today there is actually no mechanism to ensure the right of everyone – suspect, accused, indictee – to have a defense counsel, if they cannot afford it. In 1999 lawyers counseled at no charge only in 6,000 criminal cases during preliminary investigation and in 7,000 cases heard in courts at approximately UAH 20,000 in state budget expenses. Yet another negative factor is the absence of a single professional organization of lawyers that would analyze the quality of counsel, improve the situation in ensuring the participation of a defense counsel in criminal proceedings and in the citizens’ exercise of their constitutional right to legal assistance at no charge. There have been frequent cases of violations of the requirements set out in the Presidential Edict On Some Measures of Improving the Level of Work of the Advocacy of September 30, 1999 and the Law On the Advocacy, which prescribe unconditional compliance with the professional rights of lawyers and the guarantee of their activity. As the Commissioner for Human Rights was informed by the Union of Lawyers of Ukraine, its managers repeatedly addressed the Attorney General’s Office and the Supreme Court concerning the actions of individual prosecutors and judges who violated the rights of lawyers. For instance, there have been cases when the offices of lawyers were subjected to search, their confidential documents were removed, and the conversations of lawyers with clients bugged in violation of Ukrainian legislation and international standards. Some investigators artificially obstruct the rights of the defenders to meet with the accused and vice versa and “recommend” the accused to choose definite lawyers, which in the end frequently produced negative consequences in the lawyers’ performance of their duties of protecting human rights. The reform of the advocacy, launched eight years ago after the adoption of the Law On the Advocacy, has not been completed for many reasons. A number of issues on the effective operation of the legal profession have not been addressed to this day. No proper system of registering lawyers has been set up, making it extremely difficult for citizens to exercise their right to free choice of defender, as provided for by Article 59 of the Ukrainian Constitution. Under the Presidential Edict the Highest Qualification Commission of Advocacy was instructed to design a uniform register of Ukrainian lawyers. But since not all lawyers who were issued certificates to engage in the legal profession are doing so and quite a few of the currently working judges, prosecutors and investigators holding such certificates violate the rule prohibiting the combination of legal practice with other occupations, it has become impossible to establish and control the overall number of lawyers who are really engaged in practicing law. In the opinion of the Commissioner for Human Rights there is an urgent need to revise legislation on criminal procedure, specifically insofar as it concerns the participation of defenders at the early stage of the judicial process and the access of the defender to the arrested or detained person, as provided for by Article 29 of the Ukrainian Constitution. Amendments have to be introduced to operative legislation in conformity with Article 59 of the Constitution, which stipulates that the advocacy acts to ensure the right to a defense against accusation and to provide legal assistance in deciding cases in courts and other state bodies. This provision is not being complied with, thereby making it possible for defenders without a lawyer’s certificate and, occasionally, without any knowledge of the legal profession at all, to take part in the court sessions. Item 4 of the Presidential Edict mentioned above requires terminating the practice of permitting provision of legal assistance by organizations that operate in violation of current legislation. The Commissioner for Human Rights holds that in order to settle these and many other problems of operation of the advocacy, it is necessary to expedite the adoption by Parliament of the Draft Law On Amendments and Additions to the Law On the Advocacy (drafted by MP V.Medvedchuk). What merits attention in this respect is the initiative of the Kyiv city state administration that established a municipal advocacy. By its appointment lawyers provide legal assistance to citizens during preliminary investigation and in courts. It also provides legal assistance to low-income citizens. The Kyiv city state administration Order of May 17, 1999 “On Measures to Improve Provision of Legal Assistance to the Population of Kyiv” provides for funding this service and supporting it technically and materially. The Commissioner for Human Rights believes that the potential of the Ukrainian Foreign Legal College is not being fully tapped in protecting human and civil rights. The main mission of the UFLC (known as the Ukrinjurcollegia in Soviet times) under the current President D.Kurdelchuk is to protect the rights and interests of Ukrainian citizens abroad. In a year this institution provides legal assistance to several thousands of our citizens. On the basis of lists received from the Ukrainian National Fund “Mutual Understanding and Reconciliation,” the UFLC filed in 1998-1999 more than two thousand individual compensation claims by Ukrainian citizens who were engaged in forced and slave labor at German firms during the Second World War. For example, more than 500 suits were brought against Siemens Co. alone. Notably, Ukrainian citizens were not charged anything for all the work related to instituting the claims and the UFLC footed the bill without any financial support from the state. However, the most common cases – concerning pensions, alimonies, kidnapping of children and their illegal custody by one of the parents – are impossible to be resolved positively. The main obstacle for properly protecting the rights and interests of our citizens in such cases is that Ukraine has not acceded to the international conventions governing these issues, in particular the Convention on the Recovery Abroad of Maintenance, adopted in New York in 1956, The Hague Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children of 1958, The Hague Convention on the law applicable to maintenance obligations towards children of 1956, ILO Convention (¹ 19) concerning equality of treatment for national and foreign workers as regards workmen’s compensation for accidents, ILO Convention (¹ 118) concerning equality of treatment of nationals and non-nationals in social security, The Hague Convention on the Civil Aspects of International Child Abduction of 1980. The need to accede to these conventions is really urgent, because thousands of our citizens are helpless in protecting their rights in other countries when claiming alimonies, pensions, compensations for damaged health, and the like. A very complex situation has developed concerning our citizens’ claims for invalid pensions in consequence of injuries sustained during forced and slave labor in Germany in the years of the Second World War. Germany’s government recognizes the right of Ukrainian citizens to such pensions, but refuses to disburse them, arguing that Ukraine is not party to a social insurance and social security treaty. The Commissioner holds that his problem can be settled only by Ukraine acceding to the ILO Convention No.19. There is a similar situation with the right to receive pensions from the US, because Ukraine (when still within the USSR) was blacklisted along with Lebanon, Columbia, North Korea and some other countries, to which it was prohibited to remit pensions from the US. Regrettably, competent Ukrainian bodies have been unjustifiably delaying talks on this issue. To date Ukrainians have to bear all expenses when filing claims with the courts of other countries for alimonies and the return of kidnapped children. In most cases that is something our citizens cannot afford owning to lack of resources. If Ukraine were a party to the Hague Convention on the Civil Aspects of International Child Abduction, government authorities and agencies would be compelled to abide by the provisions of Article 26 of the said Convention and relieve the plaintiff from paying judicial expenses and fees for legal counsel. Judicial and administrative bodies would then have the right to demand from the defendant in such a case that he offset all costs related to travel, search of the child and its return to the claimant’s country. In the opinion of the Commissioner for Human Rights Ukraine’s bodies of state authority have still to expend a lot of efforts in settling the problems of the legal protection of Ukrainian citizens in foreign countries. The role of notaries within the system of protection of human and civil rights has grown considerably during the past few years. To date the activity of notaries is not only confined to affixing a seal to a drawn up document. They certify all sorts of facts, contracts, instructions, authenticity of signatures under documents, present checks for payment, process cases on inheritance, explain to natural persons and legal entities their rights and duties as well as the implications of failure to meet in good faith contractual commitments, and perform other actions that make it possible for citizens to exercise their rights and legitimate interests guaranteed by the Ukrainian Constitution. Among the most important functions of a notary is to explain to citizens their rights and duties both before and after notarization of a document as well as to clarify the implications when they fail to meet in good faith the provisions under the document. A notary has to be an impartial adviser and advocate of the protection of rights of all parties to an agreement and all persons seeking his services. Such a role of a notary in the country’s socioeconomic life is enshrined in the Law On the Notariat that came into force on September 2, 1993. To date Ukraine numbers about 1,200 public and 1,900 private notaries. In 1999 alone, they received 12 million citizens, performed 9.2 million notarial actions in the interests of individuals and organizations (including 4 million agreements related to the protection of proprietary rights – alienation of property and land plots and rights to land shares [stakes]), 156,000 wills, issued 397,000 certificates on rights to succession, and executed 155,000 documents for subsequent actions abroad. To service sick and elderly clients, the notaries made 44,000 trips to their homes and carried out 66,500 notarial actions in their interests. The Ministry of Justice, jointly with the Ukrainian Notarial Chamber, designed the concept of the draft Law On the Notariat. In its substance it follows from the need to create legal, economic and organizational principles and mechanisms to maximize the protection of the rights of citizens and interests of the state. Specifically, it is intended to:
The Commissioner for Human Rights holds that the activity of notaries is an import legal tool in the exercise by the state of its duties in ensuring the defense and protection of the proprietary and other rights of citizens and organizations without the state incurring any expenses. Therefore, given the current conditions, it is important to continue enhancing the role of notaries in the life of society. Viewing the judicial protection of human and freedoms and legal assistance as one of the priority areas of developing a democratic state, the Commissioner for Human Rights will continue keeping these issue in the focus of attention. Translated by Anatole Bilenko |
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