З'явилася англомовна версія звіту з моніторингу судів

Автор: РГК -

З'явилася англомовна версія звіту з моніторингу судів

Тепер про дані судових процесів у провадженнях НАБУ-САП стануть доступнішими для англомовної аудиторії, зокрема для наших західних друзів і партнерів.

Нагадаємо, у жовтні Рада громадського контроль НАБУ разом з "Платформою Громадський контроль" та Центром політико-правових реформ представили результати піврічного дослідження. Як засвідчили цифри, понад 50% засідань не відбувалися. Нижче наводимо англомовний текст Звіту.


 

Report based on Monitoring of Judicial Examination of Cases Whose Pretrial Investigation
Has Been Completed by NABU Detectives
(March-August 2018)
 

Effective anti-corruption policy is highly important for citizens’ wellbeing. Corruption deters economic growth, debases the quality of public governance and public services etc. The IMF has calculated that if Ukraine can reduce the level of corruption to the average EU level, the country’s per capita GDP will reach 50% of the average EU level by 2040 and will continue growing. Thus, proper implementation of anti-corruption reforms will facilitate acceleration of economic development and improve the quality of public administration Ukraine: Selected Issues. IMF, 04.04.2017).

According to Corruption Perception Index 2017, Ukraine scored 30 points out of 100 possible, ranking 130th among 180 countries (Details: https://ti-ukraine.org).

Even though Ukraine’s CPI score has been increasing since 2014, the rate of improvement remains unsatisfactory. Moreover, this growth rate actually slowed down in 2017 compared to 2016. Most investors believe that corruption remains the main barrier to investing in Ukraine, while the inflow of investments is still a vital condition for improvement of the general wellbeing (Foreign investors: corruption and distrust for the judicial system have greater impact on the investment climate in Ukraine than the conflict with Russia. Center for Economic Strategy, 13 September 2018).

The latest social survey commissioned by NDI shows that 63% of citizens believe that the fight against corruption must be a priority for the next government – no other option got quite as much support (Opportunities and Obstacles on Ukraine’s Path of Democratic Transition. July 2017. On commission from NDI Ukraine)

As a general practice, successful anti-corruption strategies are based on a combination of elements for corruption prevention and prosecution of corruption cases (Details: http://www.undp.org).

For instance, if we analyze the works of one of the most reputable corruption researchers Susan Rose-Ackerman, we conclude that combining preventive measures with increasing the “price of corruption,” particularly through punishment for corrupt actions, is the most effective strategy (Details: http://documents.worldbank.org).

American professor Matthew Stephenson points out that while countries that have successfully curbed corruption did not rely solely on investigation of corrupt acts and punishment for them, these measures definitely constitute part of the formula (Western Anti-corruption Policy in Ukraine: Success or Failure? Matthew Stephenson, 19.06.2018)

That is precisely why ensuring inevitability of criminal liability is one of the objectives of Ukraine’s national anti-corruption policy set forth by the Anti-Corruption Strategy for 2014-2017. The newly created institutions – the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) – play a major role in this process. For instance, the NABU is tasked with counteraction to criminal corruption-related violations committed by high-ranking public officials, which constitute a threat to the national security (Art. 1 of the Law of Ukraine “On the National Anti-Corruption Bureau”), while SAPO prosecutors perform procedural oversight over the NABU’s respective criminal proceedings.

However, judicial statistics illustrates that the inevitability of criminal liability for corruption is not properly ensured. Judicial examination of corruption-related crimes (According to the definition provided in the footnote of Article 45 of the Criminal Code of Ukrainehas resulted in 1068 decisions becoming effective in 2017, including 826 guilty verdicts. Eighty-four individuals were sentenced to confinement, 16 more were sentenced to temporary restraint (According to statistical data of the State Judicial Administration of Ukraine, 2017).

The situation is especially worrisome when it comes to bringing high-ranking officials to criminal responsibility for corruption and corruption-related crimes. According to the journalists of Nashi Hroshi, only two “high-ranking officials” were brought to criminal responsibility in 2017 – they turned out to be heads of district administrations (High-Ranking Corrupt Officials: verdicts over 2015-2017. Nashi Hroshi, 29 November 2017).

The results of judicial examination of proceedings whose pre-trial investigation was carried out by the NABU leave much to be desired as well. As of 31 August 2018 (According to the statistical data from the NABU website), final decisions had been made only on 33 cases out of the 155 referred to the court: guilty verdicts had been made in 21 cases, and only 2 cases had resulted in imprisonment: 3 individuals were actually sentenced to confinement. At the same time, as of June 30, 2018, indictments against 227 individuals had been sent to court (Report of the National Anti-Corruption Bureau for І half of 2018. Official website of the NABU, 10 August 2018). There is evidently a problem with review of these cases in courts, which requires further examination of its origin and reasons.

One of the possible reasons seems to be the overall condition of the judicial system in Ukraine. For instance, as of the end of 2017, according to the State Judicial Administration, there were 4679 judges in courts of all instances authorized to examine judicial cases (Data Review on the situation with justice in 2017. State Judicial Administration). Another point that needs to be taken into account is the special requirements to judges who review proceedings in which pre-trial investigation was carried out by NABU detectives, set forth in the Criminal Procedural Code of Ukraine, Art. 31. First-instance courts alone received 2,976,555 cases for review in 2017 (that is excluding over half a million cases remaining from the previous years). This large volume of cases combined with understaffing of courts leads to excessive workload per judge, which renders uninterrupted judicial examination of NABU-investigated cases impossible (The principle of uninterrupted judicial examination is stipulated by the Criminal Procedural Code of Ukraine, Art. 322).

Yet, there may be other factors contributing to delays in judicial examination of those cases: the NABU suggests that some of the reasons may be excessive media attention to high-profile investigations and pressure by current politicians (Report of the National Anti-Corruption Bureau for І half of 2018. Official website of the NABU, 10 August 2018).

To receive objective, complete information on the situation with trial of NABU-investigated cases, the Secretariat of the Civil Oversight Council at NABU regularly monitors part of such criminal proceedings. The partners engaged in the monitoring process include the Center for Policy and Legal Reform and Civic Control Platform CSO, the latter supporting and assisting with regional monitoring (there are 6 regional monitors who attend court hearings in Vinnytsia, Lutsk, Khmelnytskyi, Cherkasy, Odesa and Kharkiv).

The monitoring has the following objectives:

1) identify the reasons for the low number of verdicts on cases where pre-trial investigation was carried out by NABU detectives;
2) identify the reasons for delaying of judicial examination on cases where pre-trial investigation was carried out by NABU detectives;
3) inform the expert community and the public on the activity of the National Anti-Corruption Bureau, the Specialized Anti-Corruption Prosecutor’s Office and judicial agencies undertaken in the course of bringing individuals accused of corruption to criminal responsibility.

For monitoring purposes, the Methodology of Monitoring of Judicial Processes in Proceedings Completed by the National Anti-Corruption Bureau has been developed (Details), compiled by member of the board and academic development director of Center for Policy and Legal Reform, LL.D. (holder of habilitated degree) professor Mykola Khavroniuk. The main principles of the monitoring are noninterference in the justice procedure, impartiality, and consent.

The report encompasses the period from March to August 2018 and consists of the following chapters:

1) statistical data on cases completed by NABU detectives;
2) publicity and completeness of information on selected cases. Access to court hearings;
3) qualitative and temporal characteristics of court hearings and periodicity of judicial
examination of the cases;
4) conclusions.


The judicial examination is yet to be initiated in almost one in three cases (49 out of 155).

The reasons include problems with formation of the judicial panel, issues with defining the jurisdiction of cases, significant workload of judges (because of their participation in examination of other cases, medical leaves, vacations, business trips), review of motions on merging new cases with those previously received by the court, the courts making decisions on returning the indictment which are subsequently disputed by SAPO prosecutors in an appellate institution during a significant period of time.

A significant number of verdicts is based on plea bargains.

As of 31 August 2018, guilty verdicts without confinement had been delivered on 21 cases with a plea bargain. It usually characterizes the work of NABU detectives and SAPO prosecutors positively, since the charged or the suspect in such a case agrees to plead guilty and cooperate with the investigation to disclose other criminal violations, providing valuable information. Moreover, it has a positive impact on the judges’ workload, since examination of such criminal proceedings usually does not require numerous hearings or significant procedural and associated expenditures for court examination. Plea bargains are usually reached with secondary participants of corrupt schemes.


Publicity and Completeness of Information on Cases Chosen for Monitoring.

Information on hearings is mostly public, open, up-to-date and full.
 
Almost all the monitored court hearings had relevant, up-to-date information on the date and time of the hearing in the section Cases for Hearing on the official web page of the respective court, and the register contained complete information on the case, namely on the constitution of the court, the number of the case, the parties to the proceedings and the description of the case. At the same time, in 13 cases the date and time of the hearing were not correct, and in 18 cases complete information on the case was missing. In one case, an erroneous submission of information on the website by a court official was recorded – it was case No. 757/870/18-k (defendant – A.Y. Zavadskyi) heard in Solomianskyi District Court of Kyiv. This case was not scheduled for hearing on that day, instead a different one was scheduled – No. 760/18235/16-k, defendant O.V. Zavadskyi.
 
Access to the hearings was open; no attempts to prevent observers from being present at court hearings have been recorded.

However, in Khmelnytskyi Local Court, there was an attempt to restrict video recording of the hearing with a portable video recording device: https://youtu.be/S2w5iPltibU.
 
In the case of PAT State Food and Grain Corporation of Ukraine the court granted the verbal motion of the defense to restrict filming of the defendant and his attorney and ruled to change the angle of the recording: https://youtu.be/5worPKcfiLw.

In one of the cases examined in Pecherskyi District Court of Kyiv, when approving the plea bargain, the judicial panel made the decision on the closed-door hearing at the motion of the prosecutor supported by the defense.
 
The number of observers attending court hearings is low, and the media attention is insufficient.
 
Out of the 57 hearings that took place, civic observers or media representatives (excluding our monitors) were present only at 24 hearings. However, it is noteworthy that we deliberately did not select the cases that were of great public interest, where he interest of media and civil society is higher.
 
 
Over a half of appointed court hearings did not take place.

The main reason was the absence of the judicial panel – 42 cases out of 66, or 64%. Namely, between April and August 2018, 12 hearings did not take place because of members of the judicial panel being on vacation, 5 hearings did not take place because of the judicial panel members’ medical leaves and business trips (each), 10 more hearings did not take place because members of the judicial panel were engaged in examination of other cases. At the same time, in 6 cases, or 9% of all the cases, the reason was the absence of prosecutors who failed to participate in the hearing. Four of these cases of prosecutors’ absence were regional cases, which may be explained by the fact that the SAPO is located in Kyiv and does not have regional directorates
 
42% of the monitored court hearings had a duration of 30 minutes or less.

The cause may be the fact that the judges are occupied because of examination of other cases, which means they cannot pay enough attention, and it is almost impossible for a judicial panel carry out uninterrupted judicial examination for a long period of time. At the same time, 33 hearings out of the 57 hearings that did happen had a duration longer than 30 minutes.

Only 18% of court hearings started in time or with a delay of less than five minutes.

25% of the court hearings that did happen started with a delay of over half an hour. If we add the 42 court hearings that did not take place in connection with situations in the judicial panel and the 24 that had a duration of less than 30 minutes, we can observe that judicial examination of over half the monitored cases either did not take place at all, or was significantly delayed and/or the examination itself was rather short.


 

The majority of the following court hearings were scheduled within one month from the date of the attended hearing.

It is quite a good score, taking into account the significant workload of each judge and the fact that the NABU-SAPO cases are usually examined by a three-judge panel, resulting in difficulties with scheduling of following court hearings.


At the same time, in 15 cases, the next court hearing was appointed after over two months from the date of the attended hearing. Such situations occurred mostly in cases examined by Kyiv courts (Pecherskyi, Solomianskyi and Shevchenkivskyi District Courts).

Pecherskyi District Court of Kyiv. Case No. 757/30586/17-k (#DPZKU abettor).

The indictment was sent to court back on 31 May 2017. There has not been a single (!) court hearing on the case yet. On 19 March 2018, the hearing did not take place in connection with the vacation of a member of the judicial panel. The next hearing was scheduled for 24 May 2018, that is, two months from the date of the previous one. Again, it did not happen because of a judge’s vacation. Another hearing, scheduled for 26 July 2018, did not take place because the head of the judicial panel was on medical leave. The next hearing has been scheduled for 16 October 2018.

Pecherskyi District Court of Kyiv. Case No. 757/23925/17-k (#Judge Petrik).

On 19 March 2018, the hearing did not happen because of the vacation of a member of the judicial panel. The following hearings, scheduled for 24 May and 27 July 2018, fell through again because of the vacation and medical leave of the head judge on the panel respectively. The next hearing has been scheduled for 8 November 2018.

Vinnytsia City Court. Case No. 127/13972/17 (#Employees of special services SSU).

One of the hearings on the case took place on 16 April 2018. The next hearing, scheduled for 25 June 2018, i.e. more than two months later than the previous one, did not happen since the judicial panel was in the chambers working on a different proceeding. The next hearing, scheduled for 9 July 2018, was postponed because one of the members of the judicial panel
was on holiday. The next hearing has been scheduled for 27 September 2018.

Pecherskyi District Court of Kyiv. Case No. 757/16903/17-k (#Zaporizhcivilproject).

The hearing scheduled for 17 April 2018 did not take place. The following one, scheduled for 27 June 2018, over two months after the previous one, did not take place either. The next hearing has been scheduled for 26 September 2018.

Solomianskyi District Court of Kyiv. Case No. 760/6099/17 (#ST “Ukrzaliznichpostach”).

The indictment was sent to court back on 30 March 2017. As of the moment of writing, even the preliminary hearing has not been held. There have been 13 attempts to hold the preliminary hearing over this time. Seven fell through due to the absence of the defense, four were removed from schedule due to vacations or the judges being involved in other hearings, two more were postponed at the prosecutor’s motion because he was unable to participate.

Pecherskyi District Court of Kyiv. Case No. 757/13635/17-k (#The official of GPU).

The case was sent to court back on 9 March 2017. On 18 July 2018, examination on the merits was appointed. Since July 2017, there have been no court hearings. The hearing scheduled for 23 March 2018 did not take place because the judicial panel was otherwise occupied. The next hearing was scheduled for 10 September 2018, but it fell through as well since one of the judicial panel members was participating in training in the Judicial Council. The next hearing has been scheduled for 3 December 2018.

Shevchenkivskyi District Court of Kyiv. Case No. 761/28004/17 (#Bank employee).

At the hearing on 11 June 2018 the court finished reviewing the third volume of the case. The next hearing was scheduled for 23 August 2018, that is, over two months after the previous one. It did not take place since one of the judges on the panel was occupied with examination of a different case. A break was announced until 29 October 2018.

Lutsk City/Rayon Court. Case No. 163/1923/17 (#Head of Lubomlsk DSA).

The hearing on 13 June 2018 lasted for only 7 minutes. The prosecutor filed a motion to postpone the judicial examination in connection with his business trip abroad. The court granted the motion and postponed the hearing until 23 August 2018, but this one did not take place either in connection with the prosecutor’s absence. The hearing has now been scheduled for 10 October 2018.

Solomianskyi District Court of Kyiv. Case No. 758/4031/18 (#Head of DASU).

The hearing scheduled for 20 June 2018 did not take place in connection with the vacation of one of the judges on the panel. The next hearing has been scheduled for 4 September 2018.

Prymorskyi District Court of Odesa. Case No. 385/619/16-k (#Judge Medentsev).

One of the hearings of the case took place on 19 July 2018. The following one has been scheduled for 9 October 2018, that is, almost 2.5 months later.

Pecherskyi District Court of Kyiv. Case No. 757/31641/16-k (#Ukragrolizing).

On August 15, 2018, the defense failed to turn up for the hearing. The defendants explained that they terminated the agreements on legal aid with the defenders. Due to the particularly grave nature of the alleged crime it was impossible to continue the hearing without defense attorneys. The court announced a break until 14 November 2018, which is almost three months later.

Shevchenkivskyi District Court of Kyiv. Case No. 761/1838/18 (#Concern RRT).

On 20 August 2018, at the hearing, the defense filed separate motions on withdrawal of one of the members of the judicial panel and the SAPO prosecutor. Both motions were denied. However, after reviewing the aforementioned motions, a break was announced in connection with the judges participating in review of other cases. The next hearing has been scheduled for 25 October 2018, more than two months later.

Pecherskyi District Court of Kyiv. Case No. 750/60763/16-k (#DPZKU).

On 25 April 2018, the head judge scheduled the preliminary court hearing for 14 September 2018, which means a break of almost five months. At the hearing on 14 September, the judicial panel recused themselves, and the case was transferred to automatic assignment to determine the new constitution of the court.


The problem has a systemic nature, as evidenced by the data provided by the SAPO
on August 11, during the judges’ vacation period
  • The court hearing of indictment against individuals charged with embezzlement at  the state-owned PrAT Zaporizkyi Electric Locomotive Plant. One of the court hearings took place on 1 June 2017, with the next one scheduled for 20 September 2017. 
  • The proceeding on the case of undue benefits given to the Deputy Minister of Education and Science of Ukraine by the principal of Berdiansk University of Management and Business. The court hearing took place on 5 June 2017 and the following one was scheduled for 4 September 2017. 
  • The examination of the case in which former head of State Aviation Service of Ukraine D.Y. Antoniuk was charged with a criminal violation under Criminal Code of Ukraine, art. 364, part 2. One of the court hearings took place on 29 June 2017, and the following one was scheduled for 8 September 2017.
​Conclusions
 
We thus have to acknowledge that courts are incapable of rapid examination of proceedings in which the pre-trial investigation was conducted by the NABU. Many proceedings are stalled because such cases can only be examined by a three-judge panel, which is problematic due to a variety of issues. The judicial examination has not yet started in one of every three cases, and most verdicts are court-approved plea bargains.
 
More than half of the appointed hearings failed to take place, which often occurred due to the absence of judges. At the same time, even the hearings that did take place were quite short, the duration of almost a half being less than thirty minutes. Most hearings start later than scheduled, which is caused by the heavy schedule of hearings of the panel members. 
 
The monitoring has proven that the presence of civic observers at court hearings is not restricted. At the same time, the media and the public still pay little attention to the majority of court hearings. Most journalists prefer hearings on selection of pre-trial restrictions for high-level public officials after the notice of suspicion for them, though there is normally much less public information on pre-trial investigation available at this stage compared to the information that can be published after the indictment has been sent to court and examined on merits. 
 
When the High Anti-Corruption Court starts working, it will resolve at least part of the problem with delays of judicial examination of cases where the pre-trial investigation was conducted by National Anti-Corruption Bureau detectives. 
 
In addition to that, it is of utmost importance to ensure transfer of all the cases investigated by NABU and SAPO with the absent verdict from ordinary courts to the High Anti-Corruption Court. The authors of this report strongly believe that it will be impossible to quickly resolve the problem with delayed examination of cases thathave already been brought to first-instance courts of general jurisdiction until the High Anti-Corruption Court starts functioning.
 
The monitoring data illustrate that the biggest issue is probably the excessive workload of judges, caused by understaffing of courts. The Criminal Procedural Code requirements on uninterrupted judicial examination in criminal justice are not satisfied because judges have numerous other proceedings to examine. It is impossible to recruit judges for existing vacant positions within a short timeframe, since it may lead to appointment of judges with questionable integrity and professionalism. Even after the High Anti Corruption Court starts its work, abuses of procedural rights of parties to the case cannot be discounted, which may still delay judicial examination of the proceedings.
 
If the automatic assignment software could be upgraded to include automatic calculation of every judge’s work experience, it would allow to resolve this problem and avoid an unnecessary delay due to withdrawal or recusal of judges who do not have the sufficient five-year experience.
 
The current situation with trial of proceedings investigated by NABU detectives appears threatening, since in certain cases, the charged may appeal to violation of the “reasonable time” of judicial examination guaranteed both under the national legislation (including Arts. 7, 21, 318 of the Criminal Procedural Code) and on the international level, in the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 6). In this case the charged may seek justice with the European Court of Human Rights.
 
Thus, compliance with the Criminal Procedural Code requirements for judicial examination of these proceedings already stipulated by the law is not provided in reality, including but not limited to failure to comply with the requirements of Article 322 of the CPC. It seems hardly possible to remedy the situation in the short-term perspective. As for the activity of the High Anti-Corruption Court, adoption of the Laws of Ukraine “On the High Anti-Corruption Court,” “On Establishment of the High Anti-Corruption Court,” “On Amendments to the Law of Ukraine ‘On Judiciary and the Status of Judges’ in Connection with Adoption of the Law of Ukraine ‘On the High Anti-Corruption Court’” completed the ordeal with provision of the legislative framework for such a specialized court, which had been going on for over two years.
 
From the day when the High Anti-Corruption Court starts functioning, all proceedings with ongoing judicial examination under the court’s jurisdiction must be transferred to the newly created specialized court. Cassation (higher-instance appeal) of all NABU-SAPO cases will be reviewed by judges of the Cassation Criminal Court under the Supreme Court. Experts has already emphasized the necessity of creation of the separate Anti-Corruption Chamber at the Cassation Criminal Court of Supreme Court, where the judges will be selected according to the same procedure as the High Anti-Corruption Court judges (Who Will Have Influence on the Anti-Corruption Court? R. Kuibida, 22 May 2018). Among other reasons, this idea has emerged due to certain shortcomings in the procedure of selection of Supreme Court judges (One of the publications where these issues are outlined is “Formation of the New Supreme Court: Key Outtakes by R. Kuibida, B. Malyshev, R. Marusenko, T. Shepel,January 2018)

Useful links
 

You can find videos of visited hearings on our Youtube-channel Monitoring for hearings NABU-SAPO”.

Information on selected cases for monitoring and the chronology of their consideration can be found on the website of the Council of Public Control of NABU in the section Monitoring of Courts”.

 

 

 

Окрему подяку висловлюємо Transparency Int. Ukraine за переклад цього дослідження.