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[ccje2005/docs/CCJE(2005)13e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THEME
“JUSTICE AND SOCIETY”
Reply submitted by
the delegation of Ukraine
A.1. Please describe arrangements existing in your country aiming at informing justice users and/or the general public about the functioning of the judicial system. Please describe the specific information provided (nature of proceedings available; average length of proceedings in the various courts; costs and risks involved in case of wrongful use of legal channels; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts) as well as the press resources used (printed citizen's guides, Internet facilities, information offices, etc.). Please also state which authorities provide such services, underlining the role of the courts themselves and/or of lawyers' associations (see paragraphs 12-15 of the CCJE's Opinion No. 6 (2004) on Fair Trial within a Reasonable Time and Judges Role in Trials taking into Account Alternative Means of Dispute Settlement). Please say whether a role is played by judges' professional associations and/or by the Judicial Service Commission/High Council for the Judiciary. Please say whether public interest organisations and universities have a role in the above.
A.2. Please describe the systems envisaged to satisfy the information needs of policy makers, academics, public interest groups and private citizens.
Judicial sessions are open and adapted to presence of the public and Media. The openness of judicial sessions is guaranteed by the Constitution of Ukraine (article 129). The closed judicial sessions are possible only after the decision of court under certain conditions. (the Law "About Judiciary", article 14) Civil and criminal-adjective codes determine, that disposal of legal proceeding in all courts should be opened except for cases when it contradicts interests of protection of the state secret. (article 10; 20). The Closed proceeding is also authorized in cases when the court considers that it is necessary to avoid disclosure of the confidential information, specifically in affairs which concern rapes, minors or adoption. In practice courts do not abuse these opportunities: they are usually opened for the public, and closed meetings are carried out seldom enough.
Economic courts resort to closed meetings more often. In economic court consideration of an affair may be closed if business concerns the state, commercial or bank secret or if one or both parties give sound arguments for realization of a closed meeting and submit the petition prior to the beginning of the consideration of an affair. (ГПК, article 4-4)
Though the legislation is designed for maintenance of publicity of judicial sessions only at a small amount of exceptions, the public not frequently attends sessions. It may be connected with absence of interest, but the interested persons frequently face with problems at realization of this right. The personnel, including protection of courts, does not assist, and is sometimes impolite concerns to the stranger. Visiting of judicial sessions by the public also is complicated with a problem of duly finding - out of time and a place of concrete hearing. At last, lack of the appropriate rooms prevents extraneous observers in some cases.
Nevertheless, the prevailing majority of judicial sessions are open for the public. At least, one court has appointed the judge, responsible for connections with media, in order to help them in reception of data concerning the time-table of sessions and maintenance of a place for their presence.
Judgements are usually accessible to the public, and the important decisions of appeal instances are published and may serve as a subject of public and scientific research.
Though decisions should appear publicly (ГПК, article 212; КПК, article 20), the majority of decisions are not published, and access up to judicial archives to persons who did not take part in process, is limited. For reception of access to materials of an affair these persons should receive the sanction of the chapter of court or the presiding judge. Even in cases when the person receives the sanction to see the decision of court, he not always has opportunity to make from it a copy, except for how to copy manually as copy machines usually are absent in courts. So the majority of decisions may not be object neither scientific comments, nor public researches if only the parties will not decide to distribute the decision.
As the decision of the Constitutional Court of Ukraine is obligatory for all other courts in contradistinction to decisions of courts of the general jurisdiction which have no case force, they are published in "the Bulletin of the Constitutional Court of Ukraine" (the Law "About the Constitutional Court of Ukraine", article 67) and is accessible also through electronic bases of the legislation. Some decisions of the Supreme Court of Ukraine and the Supreme Economic Court of Ukraine have instructive value, and extracts from such decisions are published in "The Bulletin of the Supreme Court of Ukraine" or "the Bulletin of economic justice". Electronic bases of the legislation, legal newspapers and other publications also print extracts from especially important decisions of supreme courts, and the courts of lowest level. An universal database of such decisions nevertheless does not exist. It is difficult for courts to get decisions of other courts.
The justification of the limited access to judgements is based on limitation of their validity on the one hand and desire to protect the confidential information which contains in materials of an affair, from public interest, on the other hand. Besides, there are only organizational cautions of granting of materials of an affair for public research as electronic copies practically do not exist, and opportunities of photocopying are limited.
B.1. Please provide detailed information on programmes with the above mentioned objectives being carried out or planned in your court system.
With the purpose of maintenance of courts with qualified personnel of judges and staff members at the State judicial administration of Ukraine since April, 2003 began to function the Academy of judges of Ukraine.
The academy of judges of Ukraine is created according to the Decree of the President of Ukraine from October 11, 2002. It is state educational institution the main tasks of which are preparation, retraining and improvement of professional skill of judges of the general jurisdiction, scientific-methodical maintenance of the activity of judges. Training in Academy of judges will be necessary for all candidates for a post of the judge and for judges of all courts. Scientific maintenance of judicial reform, organizational maintenance of activity of courts is the important part of its realization. The further democratisation of the Ukrainian society, progress of Ukraine forward on a way of integration in European and the world community is not possible without reform of the Ukrainian legal proceedings.
Teachers of Academy are leading Ukrainian scientists-jurists, experienced practising judges and the judges in resignation, and also young experts of a new formation.
The important place in activity of Academy occupies studying of experience of the work of leading "schools" of the world in this sphere and using of the best achievements of the world experience in educational process in Academies, improvement of scientific, educational and legislative processes on the basis of modern judiciary practice, research of the legislation and judiciary practice of other countries.
With the purpose of realization of the tasks put before Academy wide scientific-methodical and professional attitudes with the similar educational institutions of the world, the appropriate state structures and the not governmental organizations are adjusted. Experience, scientific and methodical achievements of foreign colleagues will promote the becoming and development of Academy of judges and all Ukrainian legal proceedings in general. From its part, scientists of Academy are sincerely glad to share their experience, their scientific and methodical development with colleagues, to develop mutually interesting and useful partnership.
The Academy of judges of Ukraine carries out its activity according to the Statute which is affirmed by the Head of the State judicial administration of Ukraine and the Head of the Supreme Court of Ukraine in coordination with Council of judges of Ukraine.
According to statute tasks, educational, methodical, scientific and research work in Academy of judges of Ukraine is developed in such directions:
· Development of scientific and methodical materials and professional programs of training of judges and improvements of professional skill of judges and judicial staff members;
· the organization of permanent and short-term thematic seminars of improvement of professional skills of the judicial and administrative judicial staff;
· Realization of scientific researches in sphere of judicial education and legal proceedings;
· Studying of the experience of leading "schools" of the world on preparation, retraining, improvement of professional skills of judges and judicial staff members and using of the best achievements of world experience in educational process in Academy;
· Improvement of scientific, educational and legislative processes on the basis of modern judicial practice;
· Research of the legislation and judicial practice of other countries;
· The edition of scientific, educational, methodical and other literature;
· The organization of the cooperation with the establishments of other countries, similar Academies, namely:
- Realization of joint actions, "round tables", seminars etc.;
- Training of the Ukrainian judges and workers of judicial bodies in judicial and administrative instances of foreign countries;
- Realization by foreign experts of studies on humanities for judges.
· The organization of studying by judges of foreign languages, namely:
- Studying of language in Ukraine by realization of course during preparation and retraining of judges;
- Studying of language with departure to the country which language is studied;
Encouragement of publications in legal editions in foreign languages.
Except the Academy of judges in Ukraine operate other not state organizations which are engaged in training of judges:
The centre of judicial studios is based within the framework of realization of the Ukrainian - Swiss project "Support of reforming of justice in Ukraine" in February, 2000.
Since August 2001 the Centre of judicial studios operates as the International fund which founders are Ukrainian and Swiss the judge.
The purpose of activity of the Centre: all-round assistance to the statement in Ukraine of a principle of paramount importance of the law, realization of judicial protection of rights and freedoms of the person, development of a civil society, formation of independent judicial branch, realization of the constitutional bases of legal proceedings by increase of legal consciousness of the judicial case and formation of new valuable reference points.
The basic direction of activity of the Centre is realization of seminars and trainings for the Ukrainian judges in the Central methodical seminar in Kiev and educational courses in regions of Ukraine. The organization and holding of conferences and round-tables on actual problems of law employment.
Scientists, the judges of the Constitutional Court of Ukraine and the Supreme Court of Ukraine, representatives of the Supreme Council of Ukraine, the Cabinet of Ministers of Ukraine and the Ministry of Justice of Ukraine are invited for realization of studies in the Central seminar. In seminars take part the judges from Switzerland, France, Germany, Austria and other countries.
During realization of the project more than 100 judges-instructors are prepared, they will carry out studies with the colleagues in regions. 470 educational courses in appeal and local courts were organized in 2000-2002years, 2100 judges have taken part there.
The centre fulfils a modern technique of training of judges which is based on a problem statement of a teaching material, consideration of hypothetical cases, realization of thematic discussions, application of modern technical opportunities during the training (video, computers, educational tables etc.).
B.2. Please describe who takes part in programmes.
In the period since April, 2003 the following actions were carried out:
- 4 two-week trainings of judges for improvement of their professional skills were organized and carried out: for judges of local courts of the general jurisdiction and for judges of economic courts who for the first time are appointed to the post;
- materials, results of realization of seminars for improvement of professional skills of judges were prepared and some articles in newspapers were printed;
- together with the Centre of judicial studios and embassy of France in Ukraine on the 10-11 of April in Kiev the seminar for judges of local courts of the general jurisdiction was carried out on the theme: "The Basic fundamental principles of the right and litigation";
- it was carried out two round tables on the theme: "Formation of an education system of judges of Ukraine: problems of becoming and development of Academy of judges of Ukraine", - at participation of heads of the State judicial administration, Council of judges of Ukraine, the Supreme economic court of Ukraine, representatives of embassies of some foreign states in Ukraine and the international organizations, students of Academy of judges of Ukraine;
- together with ЮНЕП (the Ecological program of the United Nations) the international judicial symposium "the Role of bodies of justice in application of the ecological legislation" was carried out at participation of Chapters and judges of the Constitutional and Supreme courts of the countries Central and East Europe, Caucasus and Central Asia;
- the seminar under the special program "New Civil and Economic Codes of Ukraine" for judges-instructors who will give lectures on this problem in regions for judges of local courts was carried out;
- together with the Centre of the commercial right and Agency of the international development of embassy of USA in Ukraine the seminar for studying new Civil and Economic Codes was carried out;
- actions for the organization of seminars for judges and public prosecutors of Ukraine about human rights and protection of refugees together with representation in Ukraine of УВКБ UN of management of the Supreme Commissioner of the United Nations on affairs of refugees were carried out;
- together with the Supreme Court of Ukraine generalization of practice of application by courts of the European Convention of human rights and its application at realization of justice in Ukraine was accomplished; the project of the Decision of Plenum of the Supreme Court of Ukraine about practice of application by courts of the conventional principles and norms of international law and the international contracts of Ukraine is prepared. The teacher of Academy of judges of Ukraine is member of working group;
- together with the Department of press and culture of the Embassy of USA the work at two projects was begun:
1. Organization of a seminar for judges of the general jurisdiction - students of Academy of Judges of Ukraine on the topic: "Modern procedures of out-of-courts solution of conflicts and disputes – Медиация (Mediation)". The offered project of a seminar is the first stage of introduction of regular realization of such trainings for judges of courts of the general jurisdiction. Preparation of pilot development and introduction of alternative methods of the decision of disputes in the Ukrainian legal proceedings will become the result of the general project. In future it is planned attraction of foreign experts to realization of seminars, using of the remote means of training, the organization of telediscussions with foreign experts with application of information technologies.
2. organization of remote conference on the theme: "Modern methods of teaching for adults" with participation of judges-teachers of Academy of judges (from the Ukrainian side) and experts in techniques of teaching in judicial education (from the American side).
- adjusted relations with the international institutes concerning cooperation, including the project of the American association of lawyers "Legal initiative in the Central Europe and Eurasia" (ABA/CEELI), Embassy of Canada in Ukraine, Embassy of USA in Ukraine, the public organizations which are carrying out educational projects for judges, including the Centre of judicial studios, the Centre of the commercial right etc.
Today the Academy develops work at three big international projects, foreign experts, the state and not state organizations, the international financial and technical support are involved to participation in these projects.
Main aim of these projects: development of the Ukrainian legal proceedings and judicial education on the basis of advanced achievements of world methodical, scientific and legal idea.
1. creation on the basis of Academy of judges of Ukraine in cooperation with both Ukrainian and foreign appropriate institutes and not state organizations of the Centre of out-of-court methods of the solution of conflicts.
2. creation in partnership with foreign educational institutions of the Centre of art of the legal writing with the purpose of improvement of possession of foreign languages and business Ukrainian language of a professional direction.
3. creation of the informational, resource and educational remote centre.
Also, the Academy of judges takes part in the Joint program of the European Commission and the Council of Europe concerning strengthening of democratic stability in Ukraine and increasing of efficiency of judicial system in the powers referred to its competence, namely, judicial education and scientific - methodical maintenance of activity of courts and judges.
The basic purposes and tasks of improvement of professional skills of judges and staff members of judges.
In the modern period effective personnel maintenance, reforming of bodies of judicial system has an especial urgency and value for becoming and development of Ukraine. The basic purposes of improvement of professional skills are:
- Analysis of actual problems of application of the current legislation and judicial practice of Ukraine;
- Studying of tendencies of development of the legislation and judicial practice of Ukraine;
- Development and deepening of practical skills of preparation of procedural documents;
- Increase of the general culture of students;
- Formation at students of necessity for continuous self-improvement of professional skill;
- Development of creative abilities of students;
- Studying of a practical experience of the Supreme Court of Ukraine, the Supreme Economic Court of Ukraine and other courts;
- Studying of actual problems of application and tendencies of development of the current legislation and judicial practice of other countries;
Research of the standard principles and norms of international law.
Organization of improvement of professional skill of judges and staff members of judges
Improvement of professional skill of judges, staff members of judges should be carried out during all labour activity of workers of judicial system. Periodicity of improvement of professional skill of workers of judicial system is established by heads of judicial bodies and establishments in a measure of necessity but not less than once in five years. Improvement of professional skill of judges who are appointed to a post for the first time, should be carried out annually during two weeks first five years. Improvement of professional skill of students of Academy may be carried out with the help of short-term thematic training, thematic and problem seminars, the long profound studying of actual problems of judicial lawmaking and law-using, independent training under individual programs.
At such normative requirements improvement of professional skill of workers of court system should be carried out regularly, but not less than once in 5 years according to annual plans of improvement of professional skill which are prepared by administration of Academy and confirmed by the Chapter of the State judicial administration of Ukraine, with the coordination with the Chapter of the Supreme Court of Ukraine, the Chapter of Council of judges of Ukraine. Heads of appeal courts, and also their assistants should raise the qualification at short-term thematic and problem seminars according to plans of improvement of professional skill of students of Academy.
Improvement of professional skill of students of Academy terminates in delivery of the appropriate offset, examination, defence of the report or final work, speech at problem conference. Students of Academy who have successfully executed all requirements of the curriculum, receive the appropriate document - the state certificate on improvement of professional skill.
Organization of training of workers of judicial system
Necessity, periodicity, duration and the contents of training of workers of judicial system are adjusted by heads of judicial bodies and establishments of the State judicial administration of Ukraine.
Training of staff of judicial system has individual character and may include:
- Independent theoretical and practical preparation;
- Acquirement of necessary professional skills;
- Studying of activity of court bodies and establishments of Ukraine and other countries;
- Independent studying of standard-legal acts and judicial practice;
- Participation in conferences, "schools", business meetings etc.
By results of training the document on short-term or long improvement of professional skill with the help of practical training is given out to the trainee.
B.3. Please provide relevant information (e.g. summarising contents) as to theoretical studies existing in your country in the above mentioned field(s).
The basic themes of programs
- European convention on human rights in daily judicial practice.
- European experience of judicial self-management. Independence of judges.
- Ethical bases of judicial activity and judicial ethics.
- Psychology in system of modern criminology and judicial activity.
- Problem of counteraction of corruption in Ukraine. Respectableness of justice.
- Humanisation of criminal legal proceedings.
- Application of kinds of punishment which are not connected to imprisonment.
- Availability of justice in a civil society.
- Court and the parties of process in criminal legal proceedings: rivalry and openness.
The curriculum on ethics includes the following themes:
1. Subject of ethics and a place of professional etiquette in system of ethical knowledge.
2. Moral - legal bases of legal proceedings.
3. Moral culture of the judge: concept, contents, levels, parameters.
4. Moral culture of dialogue in activity of the judge.
The curriculum at the course "Application of the European convention on the human rights by the courts of Ukraine" consists from:
1. nature of the Convention on protection of rights and basic freedom of the person (Rome, 1950).
2. the European court on human rights and the order of realization in it.
3. Decisions of the European court on human rights.
4. the European convention and criminal process.
positions of the Convention in sphere of civil law.
The curriculum of course of improvement of qualification of judges of the general courts:
1. General educational and law disciplines.
2. Reform of legal system. Role of judicial authority in a lawful state.
3. Criminal legislation and practice of its application.
4. Criminal process. The organization of consideration of a criminal case.
5. Civil legislation: practice of its application.
6. Family legislation and practice of its application.
7. Land legislation and practice of its application.
Civil process.
C.8. In the light of national law and case-law, please describe criminal and civil implications of libel, slander, and/or similar violations of a person's reputation. Please give information about penalties provided for by law or judicial practice, as for criminal law, with special reference to violations committed by journalists. Are there different thresholds for responsibility, e.g. for public figures and for private individuals? If so, is there, however, protection for private life of public figures, and under what circumstances?
Responsibility of officials.
During the life the citizen (as private or the official) enters in relation with the appropriate state bodies, institutions of local government, their officials. In particular, workers and employees at performance of their appropriate duties enter in production relations among themselves, and also in relations with other private persons (clients) who are not members of their labour collective.
Sometimes such relations, in opinion of any of the listed persons, in a consequence damage to his (her) interests, honour, advantage or business reputation. Certainly, any citizen is not insured from mistakes of authority or the certain officials, taking into account imperfection and dynamism of the legislation of Ukraine, and other circumstances.
The legislation of Ukraine stipulates some lawful ways concerning an opportunity of restoration of the broken rights of citizens.
One of them is out-of-court (administrative) order of the appeal of actions or inactivity of officials. And the second is the court order of the appeal of actions or inactivity of officials.
The procedural legislation of Ukraine provides for citizens (citizens of Ukraine, foreigners and persons without citizenship) conditionally speaking the "usual" and "special" order of the court appeal of decisions, actions or inactivity of bodies of the government, institutions of local government, officials and employees. In both cases the citizen appeals against consequences of administrative - legal relations in which he was the participant, or exactly object, and sometimes "victim" of administrative influence.
In the "usual" order may not be appealed acts which concern maintenance of defensibility of the state, state security, foreign-policy activity of the state, preservation of the state, military service secret; acts and actions of service persons of bodies of inquiry, preliminary investigation, office of public prosecutor, court if the legislation establishes other order of the appeal.
Except for the appeal of actions or inactivity of officials, exists the punitive mechanism of influence on them through norms of the administrative and criminal right.
Fixed in the Law of Ukraine "About public service" principle of activity of the state servant on observance of legality, a priority of human rights and personal responsibility for performance of official duties and disciplines is guaranteed by the responsibility established by the law if this principle will be broken.
It is necessary to emphasize that circumstance, that service (official) crimes are allocated in separate chapter VII of Criminal code of Ukraine and the majority of them is referred to a category "heavy" and is recognized representing the increased public danger.
It is abusing of authority or official position, excess of authority or official powers, reception of a bribe. To recognized guilty in fulfilment of such crimes are stipulated long terms of imprisonment and application of additional punishment as deprivation of the right to occupy the certain posts or conduct the certain activity.
At fulfilment of others criminal actions with the help or with assistance of the official position, which are qualified by other articles of the Criminal code of Ukraine comes the strengthened criminal responsibility in view of the status of the official as especially qualifying circumstance.
The constitution of Ukraine (an item 3) declares, that the state answers before the person for its activity, and an enhanced attention of the legislator to such activity which is carried out in various spheres by concrete physical persons who have voluntary accepted the status of state servants (not important of what level), finds the embodiment in new and new rules of law.
For prevention and overcoming of abuses as socially undesirable and socially dangerous phenomena the Law "About struggle against corruption" was accepted. It enters into a legal revolution concept "corruption".
Corruption is activity of the persons authorized to performance of functions of the state, directed on illegal use of the powers assigned to them for reception of material benefits, services, privileges or other advantages.
The law defines kinds of corruption actions and their subjects. It is typical, that the circle of subjects is limited and includes:
1) state servants;
2) Deputies of Ukraine, deputies of the Supreme Council of Autonomous republic Crimea, deputies of village, city, regional councils; village, city and regional chapters and chapters of regional Councils.
The law of Ukraine
About TV and broadcasting
Article 37. Duties of teleradiooraganisation
Tvradiooraganisation is obliged:
a) To distribute the objective information;
b) Not to block the transfer and reception of programs of others teleradiooraganisations, and functioning of communication lines;
c) To observe requirements of state standards and technical parameters of telebroadcasting;
d) To warn televiewers that its programs are paid;
e) To observe rules of advertising activity and the sponsorship, established by the current legislation;
f) Respect national advantage, a national originality and culture of all peoples;
g) To keep secret, on the basis of documentary confirmation, data on the person who has transferred the information or other materials with a condition of nondisclosure of his name;
h) Not to distribute materials which break a presumption of innocence of the defendant or anticipate decisions of court;
i) Not to disclose the information on private life of the citizen without his consent if this information is not socially necessary. In case if the court recognizes, that distribution of the information on private life of the citizen does not represent public necessity, the mental cruelty and a loss of property are compensated in the order established by the current legislation of Ukraine;
j) To provide to persons and organizations which have in it industrial necessity, an easy approach to the time-table of an announcement of teleradiooraganisation and its free-of-charge use;
k) To observe the established quota of demonstration of national films and programs of national manufacture according to laws.
Teleradiooraganisation has no right:
To change in the radical image the character, volume and the program concept without the preliminary notification of televiewers and radio listeners in its programs;
To increase unilaterally the size of an abonent payment or other kinds of payment of services before the termination of the term of the contract, except for cases of changing of centralized tariffs for services of TV and broadcasting.
Realization of any kinds of works which may interfere the reception of programs or worsen their technical quality is not authorized in borders of a zone of the sure reception of tele-radio programs. Guilty in it legal and physical persons are obliged to compensate all expenses connected to renewal of previous quality of reception of tele-radio programs.
The law of Ukraine
About a printed mass media (press) in Ukraine
Article 18. The termination of release of printed mass media
Release of printed mass media may be stopped under the decision of the founder (co-founder) or court.
The founder (co-founder) has the right to stop release of the edition in cases and order, stipulated by the authorized contract or the statute of edition or other contract made between the founder (co-founder) and edition.
The court stops release of the edition in case of infringement of the part 1 of article 3 of this Law or liquidation of the legal person who is the founder of the edition. The court informs the appropriate recording body about the decision.
(part 3 of article 18 was added according to the Law
of Ukraine from 11.11.93 р. _3582-XII)
On the basis of the notice in writing of the founder (co-founder), coordinated with edition, or decisions of court about termination of release of printed mass media the recording body recognizes the certificate about its state registration void.
Withdrawal of circulation or its separate part is supposed only after the decision or a verdict of court which have come into force.
The civil procedural code of Ukraine
Article 11. The decision of cases on the basis of the current legislation
The court solves cases on the basis of the Constitution, other acts of the legislation of Ukraine, the international contracts of Ukraine in the order stipulated by this Code.
The court in the cases stipulated by the law, applies norms of the right of other states.
In case of absence of the law which adjusts disputable relations, the court applies the law which adjusts similar relations, and at absence of such law the court proceeds from the general principles and the contents of the legislation of Ukraine.
( with the changes brought according to the Law
of Ukraine from 15. 12. 9 р. _2857-XII)
Article 328. Preparation of cassation consideration of a case
Cases with cassation complaints, cassation submission of the public prosecutor are brought to the court of cassation through the office of court where they are registered, made out and transferred by way of sequence to the judge-speaker.
During ten-day term the court establishes presence of the bases for transfer of the case for consideration by members of chamber.
The case is necessarily considered by members of chamber, if:
Given in the complaint, submission of the public prosecutor reasons contain attributes of wrong application by court of norms of a procedural law that attracts cancellation of the accepted decision;
In cassation realization of court there is a case of similar character;
The court has admitted other application of the law rather than cassation instance by consideration of a case of similar character;
Case on the first instance is considered by appeal court.
Case may be handed on consideration to members of chamber if the appealed decision has the important value for maintenance of identical application of the law by courts of Ukraine and also if the reasons given in the complaint give the basis for a conclusion, that wrong application by court of norms of material or procedural law has resulted or might result in the wrong decision of a case.
The constitution of Ukraine
Article 9. Working international contracts, which the Supreme Council of Ukraine admitted as compulsory, are a part of the national legislation of Ukraine.
The conclusion of the international contracts which contradict the Constitutions of Ukraine, is possible only after entering proper alterations into the Constitution of Ukraine.
Article 15. Public life in Ukraine is based on the basis of political, economic and ideological variety.
Any ideology may not be recognized by the state as obligatory.
Censorship is forbidden.
The state guarantees freedom of the political activity which is not forbidden by the Constitution and laws of Ukraine.
Article 32. Nobody may be exposed to intervention in his personal and family life, except for the cases stipulated by the Constitution of Ukraine.
Collecting, storage, use and distribution of the confidential information about the person without his consent is not supposed, except for cases determined by the law, and only in interests of national safety, economic well-being and human rights.
Each citizen has the right to familiarize in bodies of the government, institutions of local government, establishments and the organizations with data about himself which are not state or other secret protected by the law.
Judicial protection of the right to abolish an unreliable information about oneself and members of one's family is guaranteed to everyone and the right to demand withdrawal of any information, and the right to compensation of the material and moral losses caused by collecting, storage, use and distribution of such unreliable information is also guaranteed.
Article 34. The right on freedom of idea and a word, on free expression of the sights and believes is guaranteed to everyone.
Everyone has the right to collect, store, use and distribute the information orally, in writing or in another way - to one's choice.
Realization of these rights may be limited by the law in interests of national safety, territorial integrity or the civil order with the purpose of prevention of excitements or crimes, for public health care, for protection of reputation or rights of other people, for the prevention of disclosure of the information received confidentially, or for maintenance of authority and impartiality of justice.
C.4. Please describe existing restrictions to the right to information in the field of judicial (civil, administrative, criminal) activity. Please describe the norms concerning secrecy of judicial investigations and/or other norms preventing dissemination of information on the development of a judicial case (e.g. secrecy of witness depositions, of filing a civil party suit within a criminal case, etc.). Please clarify at what stage in proceedings judicial information may be made public. Please also say if there is law or court practice preventing dissemination of names (or pictures) of persons involved in the case (parties, witnesses, public prosecutor, investigating judge, trial judge, etc.).
C.6. What are the procedures, if any, that guarantee access to information and access by journalists to court hearings and judicial files? Please make appropriate references to existing regulations on this matter. Do courts have spokespersons? Are they judges? Are judges allowed, by regulations and/or by deontological rules, to make statements to the press? If so, under what circumstances?
Publicity of litigation is one of the main bases of legal proceedings.
Publicity of litigation in general is a derivative from a principle of independence of court and equality of the parties in legal proceedings and provides "transparency" of legal proceedings. Litigation becomes "transparent" when the state recognizes a priority of rights of citizens. The civil society is interested in independent court and in equality of the parties and that's why only in conditions of publicity judicial independence and equality of the parties become guaranteed.
Principle of publicity fixed in paragraph 7 of article 129 of the Constitutions of Ukraine characterizes democratism of legal proceedings and promotes realization of precautionary and bringing up function. Open disposal of cases enables citizens directly to get acquainted with work of court, and it raises its responsibility for the lawful and correct solution of cases. Publicity of litigation provides legal propagation of laws in force, the control of people over activity of court and by that promotes strengthening of its authority. Present in a hall are being convinced of humanity and validity of laws. Publicity of litigation positively influences on the persons who take part in the case whose procedural actions are under the control of the citizens presenting in a hall of judicial session.
So, publicity of legal proceedings has three aspects: as a duty of court to provide publicity of legal proceedings; as the right of the parties on public consideration of an affair; as the right of people who want to be present at open judicial sessions to distribute and receive the information about activity of court.
It is necessary to allocate publicity general (publicity for people) and publicity of the parties. General publicity means an opportunity of presence at court of all interested persons by consideration of cases and an admissibility in different forms, and first of all in mass media, illumination of activity of courts. General publicity provides strict observance of appropriate legal proceedings and promotes increasing of trust to judicial authority and authority of justice. Besides realization of publicity promotes freedom of mass media which cover activity of court.
Publicity of the parties is reflected in their right to public legal proceedings, and also in the right to be informed about the contents of requirements and objections of the parties, gets acquainted with materials of the case, to be listened during judicial session.
The contents of a principle of publicity of civil legal proceedings consists in that the disposal of legal proceeding in all courts are open, except for cases when it contradicts interests of protection of the state secret. The closed judicial consideration is also supposed after the motivated decision of court with the purpose of prevention of disclosure of confidential data of life of persons who take part in process, and also maintenance of secret of adoption. At the closed judicial session there are persons who take part in case, and if necessary also witnesses, experts, translators (article 10 of Civil Procedural Code of Ukraine). The decisions of courts in all cases are disclosed publicly. Persons younger 16 years are not supposed in a hall of judicial session, if they are not the persons participating in case, or witnesses (article 10 Civil Procedural Code Ukraine).
The embodiment of idea of publicity in criminal legal proceedings provides educational influence of litigation on defendants, citizens in a hall of court, has the big value for formation of sense of justice of the population, trust to justice, has positive influence on ethics of mutual relation of people who take part in case, and indirectly promotes increasing of professional qualification of judges, public prosecutors, lawyers due to the best vision of the mistakes in such conditions.
Publicity of judicial consideration is the common rule for all courts, except for the cases stipulated by the law when judicial consideration should or may be closed. But persons who are younger than 16 years are never supposed in a hall of court. There is an exception for such persons when they are defendants, victims or witnesses in criminal case (article 271of Criminal Procedural Code of Ukraine).
Judicial session must be closed if the question is about the protection of state secret. At the preliminary consideration of the case the judge decides to consider the case at the closed judicial session (paragraph 10 article 253 of Criminal Procedural Code of Ukraine)
The legislation stipulates an opportunity of realization of the closed judicial consideration under the initiative of court or under the petition of participants of process in four situations:
– When the defendant is the person who is less than 16 years;
– When crimes against sexual freedom and sexual inviolability of the person are considered;
– When there is a danger of disclosure of confidential data of life of persons who take part in case;
- When it is demanded with interests of safety of the persons taken under protection. In this occasion the court accepts the motivated decision.
Publicity means also an openness of all materials of the case for persons who take part in case, in their right to familiarize with them, in their obligatory informing on time and place of judicial session and about performance of separate procedural actions. Publicity of judicial consideration consists also in the right to publish reports and messages on litigations in press, to inform about them by radio, TV, at cinema and with application of other mass media, discuss materials of the case in labour collective. Nobody may be limited in the right of reception in court of the oral or written information concerning results of consideration of its action of proceeding.
C.7. Are television cameras allowed into the courtrooms? If so, what rules should govern the broadcasting of the recorded TV images in order to prevent the risk of manipulation?
Article 9 of the Law of Ukraine "About judicial system of Ukraine" contains position according to which realization in a hall of judicial session of a photo and videotaping, telebroadcasting, sound recordings with application of the stationary equipment, and also broadcasting of judicial session is supposed after the sanction of court.