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Ukraine's Court System

This four part article was written by Roman Woronowycz, Kyiv Press Bureau correspondent for The Ukrainian Weekly and is reprinted here with their permission.
We welcome you to visit the Weekly's site on the Web
Part I
Part II

No. 7  - - February 16, 1997 

Ukraine's court system: The Court of Contracts
by Roman Woronowycz 

Kyiv Press Bureau

The Ukrainian court system, unlike its economic system, has seen little restructuring since Ukraine achieved independence in 1991. Just prior to independence, the court system was redefined, but it remains for the most part structured as it was under the Soviet Union, with the centrally important difference that all authority now lies in Kyiv.

The Verkhovna Rada has put a review of Ukraine's Criminal Code and Civil Code on its 1997 agenda. However, that review will be geared more toward a review of laws rather than a restructuring of the court system.

Today Ukraine's jurisprudence system is organized into three major court systems: the Constitutional Court, which is responsible for issues involving the Constitution; the General Court of Competence, which deals with civil and criminal matters, and at the top of which stands the Supreme Court of Ukraine; and the Court of Specialization (commonly known as the arbitration court), which, basically, handles contractual conflicts and is overseen by the High Court of Arbitration.

To give our readers a closer look at how the three separate courts of Ukraine function, The Ukrainian Weekly begins a series on Ukraine's courts, which will highlight each court separately. In this issue we concentrate on the arbitration court system.

KYIV ñ To put it simply, the arbitration court of Ukraine is a court of contracts. Its function is to settle disputes between parties over disagreements on contractual responsibilities, payment of debts for products, services or properties. With Ukraine's push to open capital markets and stimulate business growth and investment ñ central to which is the closing of contracts between parties ñ the arbitration court system has moved from the periphery of Ukraine's still Soviet-based court system to a central position with an ever-increasing docket. 

Today it consists of 25 oblast arbitration courts, and separate courts for Crimea, and the cities of Sevastopol and Kyiv. Under them fall municipal courts (both city and raion). All answer to the High Court of Arbitration. The system involves 1,052 arbitration judges. 

The new Ukrainian Constitution passed last July refers to the arbitration system as the Court of Specialization, but in Ukraine it is still routinely referred to as the arbitration court. 

The court is an independent body responsible for reviewing and settling contractual disputes among legal entities, government bodies and other official organs. Essentially, its job is to determine whether terms exist for breaking a contract and what they are; to decide whether a contract exists and what are the promises offered by the parties to the dispute; and then to rule in favor of one of the parties. In an arbitration proceeding the court does not dole out punishment, it upholds the remedy offered by the winning party. 

Today a typical case before the arbitration court is a disagreement over the terms of lease contracts for buildings and apartments. As the rent for lease space has skyrocketed in the last four years, too often landlords have attempted to throw out businesses and individuals to make room for tenants who are willing to pay more. In Ukraine the length of a lease contract cannot be changed, so the arbitration courts have regularly analyzed contracts to determine the actual length of the agreements, and determine their effect, according to Liudmilla Panova, owner and director of the legal firm Modul. 

She explained that in Ukraine contracts are often poorly written because the parties to the contract are not aware of what a legally enforceable contract must include, which leaves it up to the arbitration court to untangle the mess that can result. The contract makers too often do not engage the expertise of lawyers, which would make the whole process simpler she said. 

Therefore, the court, which was established during Soviet times, has a much expanded responsibility. In the old times as many today refer to the Soviet era, when all property was state-owned, all transfers of property or government contracts were handled with the same document. if there were disagreements, they were over what factory was owed what said Ms. Panova. 

Ms. Panova, whose firm specializes in arbitration cases, mostly handles disagreements between private businesses. However, she said the court also continues to deal with matters of controversy between various government bodies and administrative levels. 

After the division of government property [with independence] many disputes occurred regarding true ownership of various pieces of property. These were especially prevalent between city and raion (district) administrative bodies explained Ms. Panova. Today it happens less, but in 1992-1993 they were very common 

The court also rules on disputes between government administrative bodies and legal individuals. An oblast or raion administrative head may issue a decree that a legal individual, whether a business or a person, believes is contrary to or not in compliance with a law of Ukraine. The issue can be brought before an arbitration judge to settle the matter. 

Not everyone has access to the arbitration court. The court will only review applications by legal persons that is, entities that have a registered status as such with the Ukrainian government. They can be individuals, organizations, businesses or government administrative bodies. They must fulfill government requirements as specified by the laws of Ukraine and must report their dealings in Ukraine, which includes financial reports, on a regular basis. 

If one of the parties to a dispute is not a registered legal person, the matter can be referred only to the Court of General Competency, which handles civil and criminal matters. 

Typically, a matter that ends up in arbitration court begins when an individual asks a lawyer (or "yurist" as they are referred to in Ukraine) to file documents on his behalf to register a complaint. 

First, the lawyer determines whether the complainant is a legal person before the state, which determines whether it is a matter for the general court or for the arbitration court. Then, according to Ms. Panova, notice is sent to the individual being charged with breach of contract to present the evidence. This does not always result in a court appearance. 

We often write into the notification a way in which the matter can be resolved out of court, and a timetable for resolution if it involves money, which usually it does explained Ms. Panova. If both sides agree, a new contract to satisfy both sides is drawn up and the matter goes no further. 

If the other party does not reply within a month in a manner agreeable to the complainant, documents are prepared by the lawyer and application is made to the arbitration court to hear the dispute. 

The court clerk, who works for the head judge much as in the United States, sets the matter for hearing. At the hearing only lawyers are present along with the judge. My client is never present said Ms. Panova. He gives me power of attorney and all powers needed to get the matter resolved After the hearing the judge has five working days to hand down a decision, which includes the terms and the timetable for resolution. 

The judges are guided by two laws in handing down their decision: the law on arbitration courts and the law on procedure of the arbitration process. The former defines the responsibilities of the judge and the court; the latter explains the procedures for resolving disputes. 

The decision can be appealed to the High Court of Arbitration, whose presidium is the highest court in the arbitration system, but suits are rarely accepted unless they involve unusual circumstances or government interests as Ms. Panova explained. 

If the ruling imposed by an arbitration judge is not complied with, the other party still has means by which to achieve equity. If it is a money or property matter, which is, again, the overriding concern of those involved in arbitration suits, the party seeking the remedy can turn to the arbitration court again after a month to seek relief. 

The court can then order liquidation of bank accounts and assets, and even declare the party bankrupt. When arbitration court orders are not followed the matter becomes one for the general court's criminal division. 

One of the more interesting aspects of this system is the degree to which the lawyers who bring suits for clients before the arbitration court are held liable when they lose. It also shows to what extent they must be assured of their clients worthiness before they accept a case. If we lose the case because it is our fault explained Ms. Panova, we are financially responsible for what our client owes This is due in part to the overriding power of attorney granted them. 

She said it is the lawyer's responsibility to determine the facts, properly prepare the documents, and be aware of applicable laws, which she said today is a major headache. The law-making process in Ukraine is such that laws are made and then changed overnight. It is absurd and unheard of in other countries 

She said three criteria exist that determine whether the negative outcome of an arbitration suit was the fault of the attorney: whether the lawyer chose the right tactic to get to the core of the disagreement; whether the lawyer was ignorant of a law that ruled in the case; and whether the lawyer was responsible for missing a hearing, that resulted in forfeiture of his client's rights and a ruling for the other party. 

Ms. Panova said the system is far from perfect. She complained that the lack of a court reporter at hearings allows for misunderstandings to occur, and that the lack of a process of fact determination left too much discretion with the judge. 

However, she leveled her strongest criticism at a policy of altering contracts because they are in the government's interest. Today our biggest problem is that government interests take precedence over contracts 

She gave a personal example of how this works. In a case she was handling, she represented a Latvian oil firm that in 1993 had sold gas to a Ukrainian state farm and never received payment after making delivery. A suit was brought before the arbitration court that decided for her client. Payment never followed and the suit finally ended up in the High Court of Arbitration. That court ruled for the state farm based on an edict by President Leonid Kuchma that certain interests must be defended because they are state interests, explained Ms. Panova. I do not know of a single country, which calls itself a free market, that uses state interests as an excuse to cancel a contract she said. 

No. 8__February 23, 1997 

Ukraine's court system: the Constitutional Court
by Roman Woronowycz 

Kyiv Press Bureau

Today Ukraine's jurisprudence system is organized into three major courts: the Constitutional Court, which is responsible for issues involving the Constitution; the General Court of Competence, which deals with civil and criminal matters, and at the top of which stands the Supreme Court of Ukraine; and the Court of Specialization (commonly known as the arbitration court), which, basically, handles contractual conflicts and is overseen by the High Court of Arbitration.

This is the second in a series designed to give our readers a closer look at how the three separate courts of Ukraine function. Last week we described the arbitration court system. In this installment we look at the Constitutional Court.

The court consists of 18 judges, 16 of whom already have been appointed. The judges are appointed by various sectors of the Ukrainian government. The president appoints six, the Verkhovna Rada six and the Supreme Court six. Today the court still is awaiting the appointment of the last two judges by the Verkhovna Rada, which has been stalled by political maneuverings.

This edited interview was conducted with Ivan Tymchenko, chairman of the Constitutional Court, who was appointed by President Leonid Kuchma and took his oath on October 18, 1996. The conclusion of the interview will appear next week.

What are the responsibilities of the Constitutional Court of Ukraine?

(Reading from his notes) The Constitutional Court draws conclusions and renders decisions in matters regarding: the constitutional legality of laws and legal acts passed by the Verkhovna Rada, acts of the president, acts of the Cabinet of Ministers and acts of the Verkhovna Rada of the Autonomous Republic of Crimea; on the relationship of the Constitution of Ukraine to international treaties signed by Ukraine or international treaties that are submitted to the Verkhovna Rada for approval; on maintenance of the constitutional process in matters involving the removal of the president of Ukraine from public office in an impeachment process, as delineated in articles 111 and 151 of the Constitution; on the legality of draft laws on changing the Constitution of Ukraine as delineated in its statutes; on the disregard for the Constitution and laws of Ukraine by the Verkhovna Rada of the Autonomous Republic of Crimea in the instance that the Verkhovna Rada of Ukraine begins proceedings to halt the authority of the autonomous republic; on official interpretations of the Constitution and laws of Ukraine. 

Its authority does not include questions on the legal aspect of acts of government organs, government organs of Crimea, organs of city government or the competence of judges of the General Court of Competence. 

Does the Constitutional Court have the authority to set precedents with its interpretation of the Constitution?

We do not, as you know, have the law of precedents. The Constitutional Court by law does not have the right to change its decisions, it can only review a decision if new factors arise that were not known earlier. But if the Constitutional Court receives new applications or proposals based on decisions already rendered then those applications are not accepted. The court does not review cases where the facts are similar to those in past decisions. In this way you might say precedents are used. 

But that is not the same type of precedent that exists in, let's say, England. 

Please explain how the Constitutional Court of Ukraine differs from the Supreme Court of the United States by its authority and procedures.

I will not answer that question right now. At the end of March and the beginning of April, all of our judges will be traveling to the U.S. for two weeks to study the organization, procedures and work of the Supreme Court. Then they will be able to answer this question with more competency. 

Right now, I could answer this question only in a general manner based on what I have read. But I would feel better doing so after we travel to the U.S. and learn more. I think that we will borrow much from the practices of the U.S. Supreme Court, especially on how to deal with constitutional questions. We have already developed regulations for the 1997 session, but they can be changed if we learn ways to improve our system. 

How will you ensure the independence of the Constitutional Court from influence or pressures from other government bodies ñ the Verkhovna Rada, the Cabinet of Ministers or the Office of the President ñ on your rulings?

That type of pressure does not yet exist because we have not yet handed down any rulings. That's first. The fact that the executive branch is responsible by law for ensuring the material and financial needs of the Constitutional Court cannot be equated with having influence over it. But influence over the court by the Verkhovna Rada as a body, or the executive body in the form of the Cabinet of Ministers or by the president himself, or by the Supreme Court, as such, will not occur. There will not be pressures or influences from the organs as a whole because I believe that neither the Verkhovna Rada, the Cabinet of Ministers or the president will accept a decision [by the other government bodies] that would influence specific decisions of the Constitutional Court. 

However, there is another matter. We cannot exclude the possibility that, for example, a deputy or an official within the Cabinet of Ministers or a member of the Cabinet may individually attempt to exert pressure or influence a specific ruling. But the judges that are part of the court are highly qualified, and I do not think that these judges will buckle and render decisions on an unprofessional level. If they do give in, they will be discrediting themselves. 

The renderings of the Constitutional Court are broad- ranging and therefore are read by a wide array of people. Common people will read the decisions, officials in government structures, experts in various fields of the law. And, because each Constitutional Court judge must vote for or against a case ñ he does not have the right to abstain ñ the stand of each judge will be known. 

And each judge's opinion will also be public, because each one has the ability to write a commentary regarding the rendering. Legal experts will be able to analyze and grade the rationales for the rulings. I do not think a judge will work unprofessionally in favor of his personal interests. Since he knows his work will be reviewed by experts, he will not want to discredit himself. 

As far as judicial commentary, by law the judges have no right to discuss the cases that are before them from the time the application is placed on their desk. For example, I already had received the documents on the appeal to the Constitutional Court against the liquidation of the Communist Party when [Petro] Symonenko and [Vasyl] Kriuchkov visited me to discuss the case. I told them that because I had received the documents on the case I was not at liberty to discuss it with them. I invited them to visit me after the case was decided. Judges are allowed to discuss the cases only after decisions have been rendered. 

Are the judges of the Constitutional Court appointed for life? What is their term of office?

By the Constitution, a judge's term of office is nine years. He can work until he is 65 years old. If a judge is appointed at the age of 60, although he has a nine-year term, he will only be able to work for five years, until his retirement at age 65. 

The chairman of the Constitutional Court is elected by his fellow judges for a three-year term, and cannot be re-elected. The deputy chairmen are also elected for three-year terms. On October 18, 1996, the judges took the oath of office before a session of the Verkhovna Rada. We began our official work that day. 

We gathered for a special plenary session of the Constitutional Court. The head of that plenary session was the oldest of the judges, who turned out to be Petro Martynenko. We nominated three people for the post of chairman. The nominees were myself, Mykola Koziubra and Vitalii Rozenko, I believe. We voted by secret ballot, and I received the most votes. By the law I needed 10 votes but received 11. 

I recommended the candidates for the positions of deputies and they also were elected by secret ballot. 

I just thought I should make something clear here: the chairman serves his three-year term as part of his nine-year term as a judge on the Constitutional Court. 

Another important matter. The court is divided into three judicial collegiums, which is delineated by the law on the Constitutional Court. One collegium of six judges will handle submissions by citizens for review; a second collegium will handle petitions by government bodies for review; and the third collegium will handle a mix of both submissions and petitions. 

The chairman and the deputy chairmen are part of the collegiums, not as chairman and deputies, but as equal members of the court. There I sit as a judge, and the collegium is run by the secretary. In this way it is a democratic structure. 

If a judge dies, what is the procedure for filling his seat?

If a judge dies, if he loses his citizenship, if he resigns, his vacated position is filled by that government body that appointed him. That is, if he was one of six appointed by the president, then the president appoints his successor, if it was the Supreme Court then they do so, if the Verkhovna Rada ... and so on.

No. 9__March 2, 1997 

Ukraine's court system: the Constitutional Court
by Roman Woronowycz 

Kyiv Press Bureau

Today Ukraine's jurisprudence system is organized into three major courts: the Constitutional Court, which is responsible for issues involving the Constitution; the General Court of Competence, which deals with civil and criminal matters, and at the top of which stands the Supreme Court of Ukraine; and the Court of Specialization (commonly known as the arbitration court), which, basically, handles contractual conflicts and is overseen by the High Court of Arbitration.

In this installment we conclude our look at the Constitutional Court.

The court consists of 18 judges, 16 of whom already have been appointed. The judges are appointed by various sectors of the Ukrainian government. The president appoints six, the Verkhovna Rada six and the Supreme Court six. Today the court still is awaiting the appointment of the last two judges by the Verkhovna Rada, which has been stalled by political maneuverings.

This edited interview was conducted with Ivan Tymchenko, chairman of the Constitutional Court, who was appointed by President Leonid Kuchma and took his oath on October 18, 1996.

Please give us a scenario of a typical day or week of work in the Constitutional Court.

As of right now I cannot tell you how a work day or a work week of the Constitutional Court may look. 

For example, the Supreme Court of the U.S. makes rulings on one day of the week ...

Yes, yes, I can say that we will have appointed days for meetings of the collegiums, days of plenary sessions of the whole Constitutional Court, at which time we will address the submissions and petitions to the court. 

At general sessions we will handle court matters. 

But no, we haven't yet established our daily routines. We are now reviewing our cases and then will set the agenda. 

I can tell you that the judges have three months to review submissions to the court (by citizens) and six months to review petitions (from government bodies) after they are presented to the plenary body. 

It may take us two months, maybe a month or two weeks, depending on how complicated the case is, to review the matter in the collegiums. The collegium decides whether the case has merit and ought to be brought before the plenary body. If it is deemed worthy, the secretary of the collegium then requests that the chairman put it on the agenda of the court. The court then has three months or six months, depending on the case, to decide the matter from the day it is submitted. Until that moment our time is not limited. We can take a month or two, or a week to decide whether the matter should go further. 

What are some of the cases that the Court will be looking at in its first session?

There is a petition from 100 deputies of the Verkhovna Rada to review the constitutionality of the ban on the Communist Party as decreed by the Presidium of the Verkhovna Rada in September 1991. 

There is a petition by more than 45 deputies to decide on the constitutionality of a ban on holding a second government position while a member of the Verkhovna Rada. 

We also have a petition from the president to review some of the laws passed by the Verkhovna Rada of the Autonomous Republic of Crimea on their constitutionality. 

There also are many submissions by citizens on the interpretations of laws and the Constitution by government bodies, which have already been assigned to the judges. 

Is there any interaction between the Supreme Court and the Constitutional Court?

If during a criminal or a civil case, a question is raised about the constitutional merits of the proceeding or on constitutional rights, it should be elevated to the plenum of the Supreme Court, whether at the time the matter is before a district court, a city court, an oblast court or the Supreme Court. 

The plenum has the responsibility to decide whether a constitutional question does exist in the case. If the plenum determines that some doubt exists as to the constitutionality of the case or the ruling law and its effect on the citizen, whether in a criminal or civil procedure, then the plenum of the Supreme Court suspends the process and refers the matter to the Constitutional Court. 

The Constitutional Court must then take the case and address it without delay. 

Could you please give us a description of the organizational structure of the Constitutional Court, its departments and today's budget, as well as the planned budget for 1997?

The law on the Constitution foresees a structure that involves a secretariat of the Constitutional Court, a library, archives and a publication, which will be the newspaper of the Constitutional Court. 

The secretariat, which is the administrative body of the Constitutional Court, is the service of the head of the Constitutional Court and includes the advisors to the head, among them a senior advisor and three assistant advisors. 

The other members of the Constitutional Court have an academic consultant and an assistant (clerk). This is how the law on the court has structured it. Right now we will follow that outline. As we gain experience, we could make changes; maybe we will need a larger administrative structure, maybe the individual judges will need more consultants. This will be decided during the course of our work. If changes are needed, then we will prepare an appropriate draft law. 

The secretariat is led by the director who is appointed by the court judges. He has two assistants, one in legal matters, who will head the department of legal experts, and the other one in administrative affairs. 

The initial work of the court was to organize the various submissions and petitions to the Constitutional Court and also the many mailed items we receive. We have established a department of document control [within the secretariat], which includes two sub-departments, the bureau of documents and the bureau of control. 

The service will have the responsibility of tracking the various documents from the time we receive them until final decisions on court cases are made. 

Another major area of our work will fall under the department of legal experts. This is a unit of the secretariat that will recommend whether the questions posed before the court merit Constitutional review or whether the applications should be declined. Only lawyers will work here. 

There is also the press service of the constitutional Court. 

Also important is the department of registration and systematization of laws. It will maintain documentation control over all the laws and resolutions passed by the Verkhovna Rada; acts of the Cabinet of Ministers; presidential decrees. They will be stored in bound texts and on computers. 

The library of the Constitutional Court is also very important to us. We have great hope that it will be useful to all the judges, the academic consultants, the judges aides and the legal experts. 

We had hoped that we would have our own place and library. But, for now, we are starting at point zero. 

We recently obtained a 60-volume set of the rulings of the German Supreme Court since 1951 with attached commentaries and translations into Ukrainian. For today, that is all our resources allow us to obtain. 

There is a department of external affairs that consists of four individuals. 

We have a publishing department. This will include the newspaper of the Constitutional Court and the editorial arm. What is generally called the printing department we are calling the computer graphics department because we hope computers will do most of the work. 

There is also a department that is responsible for the maintenance of property and the building of the Constitutional Court. 

Are there plans to move the Constitutional Court to its own building? Today the building in which the Constitutional Court resides is within the domain of the Cabinet of Ministers. The chairman of the Verkhovna Rada, speaking at a January 24, press conference, said the court was more than welcome to use one of its buildings.

We were given this building (next door to the presidential administration building) as temporary housing by the president on November 2, 1996. 

A permanent home was authorized at 14 Zhuliansky St. It will be a very becoming residence, but right now it is merely a carcass. It needs complete restoration inside and out. All that really exists is the structure and exterior facade. 

It will not be owned by us. The owners of all public property are the people. But it will be the permanent residence of the Constitutional Court of Ukraine. 

It will be our building in the same manner that the Verkhovna Rada's is theirs, the president's is his and the Cabinet of Minister's is theirs. But it is all government property. 

But specifically, what is the situation of our temporary housing here? Now I speak, not as a member of the Constitutional Court, but as its administrative head who must decide administrative matters. 

At the time we were deciding to lease this building and making other decisions, I was concerned about the legal aspect of the matter. When any person puts together a contract, they want to make sure it is done legally. 

This building at one time was used for apartments. The people were transferred to other buildings when the government (under the Soviet regime) decided to transform it into administrative offices. 

As they did so, independence occurred. The Verkhovna Rada of Ukraine ruled that all the property of the Central Committee of the Communist Party now belonged to it. It had to be placed under some ruling body. The property of the city was placed with the City Council of Kyiv. Raion property was placed with the raion administration. However, all the state property remained with the Verkhovna Rada. 

This was done differently here than in other republics. For the most part, the property of the central committees of the republics was turned over to the individual governments, which decided who should get what. The Verkhovna Rada did not do this. 

It took the property under its jurisdiction and did not parcel it out. When the administrative structure of the President's Office was formed, the issue of a residence came up, and the Verkhovna Rada gave them the building in which they are currently housed. That is all they were given. 

The same thing with the Cabinet of Ministers. They only have the one building. 

With the enactment of the Constitution, the Cabinet of Ministers was given authority over state property. They dealt out property to the Verkhovna Rada, to the presidential administration. They left for themselves only one other building, the one here. 

The law on the Constitutional Court gave the Cabinet of Ministers the responsibility to ensure housing for the court, a separate building. They gave up this building in which we are currently housed, the only other building under their jurisdiction ñ and only after a four-month battle with the Verkhovna Rada over landlord rights. The Verkhovna Rada did not give the building up willingly, but only after a decree was issued by the Cabinet of Ministers. 

The Verkhovna Rada could have turned to the president to veto the decree, but it did not. Instead, it turned to the arbitration court for a ruling, but only after the Cabinet of Ministers already had given us the building. 

But we signed the lease based on the declarations of the Cabinet of Ministers and the president. 

What is the budget of the Constitutional Court?

By the law, until January 1, 1997, we were financed under the budget of the Verkhovna Rada. The Cabinet of Ministers reserve fund is obliged to reimburse the Verkhovna Rada for those outlays. 

As for the 1997 budget, as you know it is not yet approved, but we have already received money from the Cabinet of Ministers for the purchase of furniture, computers, office technology, copy machines, pens and so on. 

We received 400,000 hrv in January and will receive another outlay in February. These are advances on what will be appropriated when the budget is approved. 

We are also sufficiently funded for the employees that we will hire. By the end of the first quarter we hope to have hired 80 individuals, to extend that to 110 by the end of the second quarter, 160 by the third quarter and then to hire another 200 workers at the end of the year. 

We also have been given funds for the reconstruction of the premises at 14 Zhuliansky St. In the first quarter we received 1 million hrv. For the second quarter we have 3 million hrv. 

We expect to complete construction and be in the new building by the end of the year, even as soon as November 1. 

So then, what about the rumors that the Constitutional Court could end up in Kharkiv?

The Constitutional Court has had nothing to do with that. It is in no way involved or at fault. It has made no decision and, therefore, cannot be judged. This is a matter that arose as a result of the haggling that took place over this building. 

So what or who is the source of the rumor?

It is not a rumor. The issue has been put on the agenda of the Verkhovna Rada for February. I am not going to give a legal point of view on the matter, we will wait to see what happens, but all this began with the deputies of the Verkhovna Rada. The Kharkiv deputies initiated the motion. But it is understood that some people do not want the Constitutional Court to be in Kyiv. 

Who are they?

Let's just say those who want problems for our country. But I am sure the Constitutional Court will remain in Kyiv.

No. 13__March 30, 1997
Ukraine's court system: the Court of General Jurisdiction
by Roman Woronowycz 

Kyiv Press Bureau

The Court of General Jurisdiction (General Court), at the top of which stands the Supreme Court, handles criminal, civil and administrative matters in Ukraine. It consists of more than 800 raion (city and district) courts and 27 oblast courts (which includes separate courts for Kyiv and for Sevastopol). Although Ukraine's Verkhovna Rada has passed many laws on judicial reform, few have been implemented, particularly with regard to the General Court.

As the American Bar Association's Central and Eastern European Law Initiative noted in 1996: In Ukraine the judicial branch has developed more slowly than the executive and legislative branches. The primary reason for this delay has been the reluctance on the part of the government of Ukraine to supply sufficient resources for the effective operation of the judiciary

The passage of the Constitution in June 1996 may finally propel reform forward. It calls for the development of a jury-based system in the General Court and for the absorption of the Arbitration Court into the General Court, which is part of the plan for streamlining the court system based on specialization and territoriality.

This is the third and final installment in The Weekly's series on Ukraine's court system.

KYIV ñ The district court in the Starokyivskiy raion of the city of Kyiv is located off the Khreschatyk, Kyiv's main thoroughfare, in an old building badly in need of a coat of paint. 

The second-floor court offices are dimly lit and overcrowded. People loiter in the hallway or sit on worn benches waiting for their cases to be heard. The small courtroom is drab: a rostrum made of nondescript wood where the judges sit, two tables with chairs for the prosecutor and defendants, and about a dozen plank benches for witnesses and visitors. There are no visible flags, photos or national symbols. 

But remodeling has finally begun. Workers slap paint onto the walls and ceiling as the work of the court continues, while people enter from outside through a rear entrance because scaffolding covers the front entrance, where the facade is undergoing a facelift. 

The court system, too, is being revamped. Vasyl Bilousenko, director of the Department of Judicial Reform in the Supreme Court, says that with the adoption of the new Constitution the long-awaited restructuring of Ukraine's courts will begin ñ provided that money is made available. 

The most dramatic and substantial change will be the development of a jury system. During the Soviet era, civil, administrative and criminal infractions were handled by a three-judge tribunal along with two people's witnesses. Today only the judges remain at the raion level, although the oblast courts still use people's witnesses. 

However, the new Constitution dictates that a jury option should be made available to defendants. 

We debated the issue of a jury system for a long time explained Mr. Bilousenko. We even had U.S. legal experts speak with us. They told us that juries often make decisions based on emotion rather than the law. But our Constitution calls for a partial jury system, and it shall be that way 

Ukraine's General Court now will give criminals accused of major crimes the choice of a jury trial or trial by a judicial tribunal. The jury system will be modeled after the French system. A judge will preside over the trial with six jurors present. The judge and the jurors will then render judgment after discussion of the case and a simple majority vote behind closed doors. we feel this option is simpler and more efficient said Mr. Bilousenko. 

In the future the General Court also will accept guilty pleas by the defendant. In the past, trials were conducted even after the accused pleaded guilty, even though findings of innocence were rare, whether the defendant entered a plea or not. Today we still go through the process said Mr. Bilousenko, but why should we knock down walls when the door is open. About 60 percent of defendants in Ukraine plead guilty before the court. 

However, the courts will not be allowed to accept plea bargains, as is widely done in the United States, where the defense counsel, on behalf of the defendant, can make deals to plead guilty to lesser offenses to get lenient sentences. Judges in the U.S. use the plea bargain to move cases along and keep their dockets under control. Ukrainian judges will not have that option. 

With the sharp rise in crime that has come with a more open society, the court's case load will continue to increase. Today this is a major concern for those working to restructure the court system. The largest impediment, as always, is money. 

The lack of money also will dictate how the streamlining of the court system will take place. Although the end result will be a more efficient judiciary, money is needed up front to consolidate the Arbitration Court into the General Court, which is mandated by the Constitution. To do this properly we would need another 800 raion judges, 27 additional oblast judges and an additional collegium in the Supreme Court said Mr. Bilousenko. 

Because it is cost-prohibitive with our economic situation today, the administrative system will be absorbed within the current General Court system as is. But this will cause a shortage of judges 

When the money is finally found, the Arbitration Court of Ukraine will become the Commercial Court. It will remain the court of commercial transactions with the expanded responsibility of ruling on complaints by citizens regarding improprieties by government administrative officers and bureaucrats. Appeals will be handled by a Higher Commercial Court, with final appeals going to the newly created Commercial Collegium in the Supreme Court. The new collegium will bring the number of such bodies in the Supreme Court to four. 

Today the Supreme Court consists of the civil, criminal and military collegiums. Each collegium consists of Supreme Court judges who specialize in that area of the law. The civil collegium has 30 members, the criminal 43 and the military 10 (currently there are some vacant positions). In all, the Supreme Court consists of 85 judges, all of whom are members of the Supreme Court Plenary Assembly. 

The Plenary Assembly is the highest judicial ruling body in the land on civil, criminal and military law. It reviews only those cases handed up from the collegium, and decisions are made by a majority vote after debate by the full body. Cases that are to be handled by the Plenary Assembly are first re-investigated and considered by two or three judges assigned to investigate the matter by the chairman. Collegiums receive cases from the oblast courts after recommendation for review by either the Procurator General's Office or the chairman of the Supreme Court. 

The court that handles the brunt of civil and criminal complaints is the raion court. Raion courts are found in all the administrative centers of Ukraine. Judges are responsible for their own dockets, which are assigned by a geographic division of the raion among the judges. Judges hear civil, administrative and most criminal cases. 

A criminal matter comes before a judge after it has been investigated by the Ministry of Internal Affairs and the Procurator General's Office. A representative of the Procurator's Office must be present at a trial. The defendant has the option of having defense counsel, which occurs in about half the cases. 

There are cases when defense counsel is mandatory and assigned by the court: when the accused is under age; or does not understand the language (Ukrainian or Russian); or has a disability; or if one among several defendants has already obtained legal counsel. 

When serious criminal charges (where a sentence of 10 years or more could be handed down) are leveled at a defendant, he is tried by the oblast court and assigned defense counsel. Currently the defendant is still tried by a three-judge tribunal and two people's witnesses, although soon the option of a jury will be available. 

The raion courts handle civil matters, with certain exceptions, including inter-confessional religious disagreements, which fall under the jurisdiction of the oblast court. 

Generally, lawyers need not be present at civil affairs and judges encourage that issues be settled out of court. Courts hold consultation hours when the public is allowed access to judges to confer and consult on civil issues. Although a judge is not allowed to give his opinion of the outcome of a case, he can review documents and give procedural advice. 

Judge Tatiana Kozur, chairperson of the Starokyivskiy Raion Court in Kyiv, agreed that this is where the judges are most susceptible to bribes. Yes, there is the opportunity to cut a deal during consultation. But the judges are picked because of their high moral and ethical standards, and we believe they continue to act in such a manner. If they are found to take bribes, they are dismissed said Judge Kozur. 

The raion court handles administrative complaints also. These are lesser legal matters in which there is usually no harm done to another person: prostitution, minor hooliganism, public drunkenness, unruly behavior, etc. 

Parties in criminal or civil matters have the ability to file appeals on judgments rendered by the raion courts to the oblast court. In civil matters, the appealing party has seven days to submit all relevant documents; in criminal matters 10 days are allowed. 

The oblast court's responsibility is to review matters on appeal from the raion courts for their legal and procedural soundness. Oblast judges can abandon the verdict of the lower court and return the case for retrial, they can uphold the verdict, or they can change the verdict. The court cannot however, hand down a harsher ruling). Decisions are not often changed. There have to be unusual circumstances said Judge Kozur. 

In 1996 only four outcomes were changed in the more than 3,000 civil and criminal cases heard in the Starokyivskiy Raion Court. 

The oblast court hears criminal complaints of the first instance in serious crimes as well, which includes murder, burglary, rape and treason, among other charges. 

Decisions by oblast judges are subject to review by an oblast court oversight review board. The Oblast Procurator's Office or the chairman of the oblast court can ask that a matter go to the board for review, which puts much authority in the hands of the two bodies. 

The Supreme Court is considering a change in the appeals process away from a system of cassation to give oblast level judges the ability to do more than simply review procedural and legal matters, according to Mr. Bilousenko. It would like to give judges the authority to hear additional testimony on appeal with original and other witnesses, and to allow judges to hand down their own rulings, even ones harsher than the lower court's original decision, while still allowing them to uphold judgments and return cases to the raion court. 

Cases reach the Supreme Court only on recommendation of either the Procurator General's Office or the chairman of the Supreme Court. Because this puts too much power in their hands, according to Mr. Bilousenko, the reform envisaged for the court would create a board of second cassation. This would consist of three Supreme Court judges assigned to review applications for appeal and decide whether a basis for review exists. Appeals accepted by the board would be assigned to the proper collegium and begin their journey through the Supreme Court process. 

Mr. Bilousenko says that, in the long term, Ukraine would also like to establish a patent court and a monopoly court, but that requires one thing: money.

1997 Copyright The Ukrainian Weekly

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