Strasbourg, 7 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of Ukraine
CАLP – Code of Administrative Legal Proceedings
C.C.P. – Code of Civil Procedure
CCrP– Code of Criminal Procedure
Part I: Preparation of the judicial decision
According to the article 1 of the Law on court organization of Ukraine the judicial power in Ukraine is performed by administration of justice in the form of civil, administrative, criminal and constitutional legal proceedings. The civil remedial legislation (chapter 7 of C.C.P. of Ukraine), the administrative legislation (chapter 5 CАLP of Ukraine), the criminal-remedial legislation (chapter 28) establish types of judicial decisions, an procedure of its drafting and their form, requirements as to the contents of each type of judicial decisions.
The text of the decision is made by the judge personally but in the sequence established by the legislation. The decision is to be full, clear, accurate, it is obligatory to have introductory, descriptive, motivation and resolutive parts stated in sequence defined by the law. Questions, stated in each of the specified parts of the judicial decision, are also established by the remedial legislation. Non-observance of requirements of the law as to the form and the contents of judicial decision is the basis for its annulment in case of its review by the court of higher instance.
Consideration of civil, criminal, administrative cases in courts is carried out by the judge individually who is the chairman, and operates on behalf of court, or by collective staff of the court (article 23, 24 of CАLP of Ukraine, 17 CCrP of Ukraine, 18 C.C.P Ukraine).
Number of judges in collective staff of court is odd, in order to avoid blocking of the decision-making by equal quantity of voices. Questions, being raised during the legal investigation by the panel of judges, are resolved by the majority of votes of judges (article 19 C.C.P of Ukraine, 25 CАLP of Ukraine, 325 CCr P of Ukraine). But there are some exceptions from this rule. For example, in court of cassation the civil case is appointed to judicial investigation if at least one of three judges from the staff of the court comes to such opinion (article 332 C.C.P. of Ukraine). The question on admission of complaint to production in light of exclusive circumstances and reclamation of the case is determined by the panel of seven judges. The complaint is considered to be admitted to production in view of exclusive circumstances if at least three judges come to conclusion about its necessity (article 356 of C.C.P. of Ukraine).
Articles 19 C.C.P. of Ukraine, 25 CАLP of Ukraine, 325 CCrP of Ukraine is determined, that during the decision-making process on each question none of judges have the right to abstain from voting and signing of judicial decision. The judge who does not agree with the decision, can state his minority report in writing. This document is not read during judicial session, but is kept on file and is opened for acquaintance. The minority report in civil or administrative cases is not the basis for checking of legality and validity of judicial decision in an appeal or cassation instances, but in case of appeal the higher court with knowledge of minority report, can consider its contents during the drafting of the judicial decision on the case. Article 339 of CCrP of Ukraine establishes that if the criminal case on which there is an minority report, was not considered by court of cassation, then after the court’s verdict come into effect, the minority report together with the case is directed to the chairman of higher court for making the decision of a question on necessity of reconsideration of case for superintendence.
The law concerns all judges who form the court, considering the case, with equal powers during the decision of any questions arising in judicial session. To exclude the possible authority’s influence of the presiding judge on opinion of other members of court during consideration of specific case, the law establishes the rule according to which the chairman votes the last.
Judicial investigation comes to an end with the judicial decision. Courts decree the decision immediately after the termination of judicial consideration. The decision is drafted, made out and signed up in the consultative room by the judge or judges who considered the case (article 160 CАLP, 209 C.C.P., 339 CCrP).
The civil and administrative remedial legislation provides that in exceptional cases depending on complexity of the case, drafting of decision’s full text (that is the decision which contains all data provided by the legislation) can be remitted for term of no more than five days from the date of termination of the legal investigation. In practice such decision is called short. Thus introductory and resolutive parts of the judicial decision are to be read in the same judicial session in which the legal investigation was ended. The read short decision is signed by all stuff of the court and is joined to materials of the case (article 160 CАLP, 209 C.C.P.).
The court considers all civil and administrative cases within the limits of the declared requirements (article 11 CАLP of Ukraine, article 11 C.C.P. of Ukraine).
The court decision is to be exhaustive (full). The judicial decision is considered as being exhaustive when it completely solves the dispute between the parties and gives the answer to all claims of the plaintiff and objections of the respondent. The civil and administrative remedial legislation provides a possibility of exclusion of court decision’s incompleteness - drafting of the supplemental decision (article 168 CАLP of Ukraine, 220 C.C.P. of Ukraine).
The court has the right under its own initiative with the purpose of necessity of protection of the rights and interests of physical and legal persons to exceed the scope of requirements’ limits declared by the claimant, in cases when such right is directly provided by the law. Any other excess of claim’s limit of requirements is considered to be infringement of optional standard and in this part the decision is subject to cancellation in case of its reconsideration by the court of higher instance.
During the process of decision’s drafting on civil or administrative cases the first instance court decides such issues: whether circumstance, within which requirements and objections were proved, actually took place, and which arguments prove them; are there any other facts being valuable for resolution of the case, and the proof on their corroboration; what legal bond between the parties follows from the acknowledged circumstances; which rule of law is subject to application to this legal bond; whether the claim is subject to satisfaction or not. Listed at above issues are reflected in a judicial decision in following order: name of the parties, subject of claims; the generalized position statement of the respondent, statements of persons participating in the proceedings, other proofs determined by court; analysis of actual circumstances of the case and assessment of evidences by the court - indication of the circumstances ascertained by court and accordingly defined legal bond, indication of motivation based on which the court assesses or rejects proofs, applies the statutory acts specified in the decision; specifies rights which are protected and what is the basis of their accrual by the claimant, whether the fact of their infringement is established, who is the infringer; indication of the name, article etc. of the law which ruled the dispute resolution, and the remedial law which guided the court during the procedure; court's opinion about satisfaction of the claim or refusal, entirely or partially, court's opinion as a matter of claim requirements, distribution of proceedings costs, terms and order of coming the decision into force and its procedure of its appeal.
Investigation of criminal case is conducted only in respect to defendants and only within the indictment against them (article 275 CCrP of Ukraine).
According to article 324 of CCrP of Ukraine, during the drafting of a sentence, the court has to resolve such issues: presence of act which the defendant is accused in, whether it has legally defined crime instance (corpus delicti) and what article of the Criminal code provides it, whether the defendant is guilty in its perpetration and whether he is subject to punishment, whether there are any circumstances aggravating or extenuating punishment of the defendant, what sentence is to be appointed in respect to the defendant and whether he has to serve it. Also are solved the issues of brought civil suit, material evidences, a preventive punishment, as well as some other. The sentence consists of introductory, motivational and operative parts. In these parts the questions listed at above are solved by court and the adjudgement is stated in specific order.
During consideration of civil or administrative case in appeal instance, the appeal court checks the legality and validity of decision of first instance court within arguments, stated in the appeal complaints and the requirements declared in court of the first instance. The appeal court examines the proofs which have been investigated by first instance court with infringement of the established procedure or which has been given up the research illegally, and also new proofs, which were not produced with the court of the first instance by good reasons (article 303 C.C.P., article 195 CАLP of Ukraine).
During consideration of civil or administrative case in cassation instance the court checks within the cassation complaint correctness of material norms or procedural law ruled by court of the first or appeal instances. It cannot ascertain and/or consider circumstances as being proved which have not been ascertained in the decision or were rejected by it, solve a question on reliability or unauthenticity of any proof, with preference of one proof over the other (article 335 C.C.P., article 220 CАLP of Ukraine).
The sentence (definition or the decision) in criminal case is also checked by court of appeal instance. Conclusions of the first instance court concerning the actual circumstances of the case which were not appealed against and in relation of which (according to requirements of the law) the proofs were not investigated, are not checked (article 365 CCrP of Ukraine).
The Court of Cassation checks legality and validity of judicial decisions on criminal cases based on available in the case addition materials in the part they were appealed against. The court of cassation has the right to exceed the scope of cassation requirements if this does not worsen the position of condemned or acquitted person (article 395 CCrP of Ukraine).
According to the article 1 of the Law on Court Organization of Ukraine the judicial power in Ukraine is performed by courts of general jurisdiction by administration of justice in form of civil, administrative, criminal and constitutional legal proceedings. Accordingly, the legislation establishes a legal procedure in each of the listed forms of legal proceedings.
Article 323 of CCrP of Ukraine establishes that the court decides a sentence based only on those proofs which were considered during the proceedings session. The court estimates proofs based on internal believes which are based on an all-round, full and objective investigation of all circumstances of the case in their totality, being guided by the law.
Articles 159 of CАLP, 213 C.C.P. of Ukraine establishes that the judicial decision has to be legitimate and reasoned. The decision is drafted by court in accordance with norms of the substantive and procedural law based on full and comprehensively found circumstances of the case, backed by those proofs which were investigated in judicial session.
In its decision courts specifies precisely in favor of what party is the award. In case of partial satisfaction of the claims the court precisely specifies which claims are satisfied, in what extent, and what is awarded. In case of full refusal in satisfaction of claims in its decision, the court precisely specifies, who and to what extent is given up. Non-observance of these requirements results in judgment annulment by the higher court in case of its appeal.
According to article 14 of the Code of Civil Procedure of Ukraine, article 14 of the Code of Administrative Legal Proceedings of Ukraine the judicial decisions which have come into force, are obligatory for all public authorities and local governments, the enterprises, establishments, the organizations, officials, citizens and are subject to execution on the territory of Ukraine, and in cases defined by the international treaties which received ratification by the Parliament, - and across its boundaries. Non-fulfilment of judicial decision is the basis for the prosecution established by the law.
Compulsion of a judicial decision does not deprive persons who did not take part in the proceedings, of right to apply with court if their rights, freedoms or interests are impaired by the decision.
After the court’s decision comes into force in civil case, the parties to the proceeding and the third parties with individual claims, and also their assignees cannot again lodge in court the same claims on the same merit, as well as contend in other processes the facts established by court and legal bond (article 223 C.C.P of Ukraine).
Article 255 CАLP of Ukraine establishes that circumstances, ascertained by the court’s decision which came into force, cannot be contended on the same merit in other proceedings with participation of the same parties.
Prejudicialness of court’s decisions for other courts, public prosecutor’s authorities is prescribed by the remedial legislation.
The court’s decision that has come into force, or subject to immediate enforcement, is the basis for its execution.
The issues in respect to court’s decision to be enforced are considered within the local court considered the case.
In case of necessity the procedure, terms and order of enforcement of court’s decision can be defined in the court’s decision. Duties in respect to execution of the decision can be assigned to corresponding authorities.
For each court’s decision which is subject to enforcement, by person’s application in whose advantage it is decided, court gives one court order or several court orders if it is necessary to transfer the property situated in several places, and also if the decision is decided in favour of multiple respondents.
Enforcement of court’s decision on civil and administrative cases is performed in accordance with the Law of Ukraine «About enforcement of court’s decisions».
The court that has drafted the decision, performs the control in respect to its enforcement.
The sentence in the criminal case that has come into force, addresses to execution by the court which has drafted it. Period of time for execution of the sentence which has come into force, is assigned to the judge or the chairman of the respective court which has drafted a sentence (article 404 of CCrP of Ukraine).
The public prosecutor performs the supervision over observance of laws during the enforcement of court’s decision in criminal cases, and also during the application procedure of other measures of the compulsory character, in respect to restriction of freedom of the person. Orders of the public prosecutor, concerning enforcement of sentences and court decisions are obligatory for all authorities and officials who execute them (article 415 of CCrP of Ukraine).
Article 6 of the Code of Civil Procedure of Ukraine defines publicity and openness of judicial consideration. According to principle of publicity and openness of judicial consideration the court’s decision is announced publicly, except those cases when the legal investigation was performed in the closed judicial session.
The closed judicial session is an exception from the general rule and is allowed in cases when open session can lead to disclosure of state's or other secret information protected by the law, as well as under the respective application of persons who take part in the proceedings, for the purpose of privacy of child adoption, prevention of disclosure of data of intimate or other personal aspects of life of persons who are taking part in case, or the data discrediting their honour and dignity.
Based on legal investigation in the closed judicial session the court is obliged to decide motivated decision in a consultative room which is announced immediately.
Parties to the civil case proceedings and other persons who are present during the open judicial session, have the right to write down the information, and also to use portable audio technical devices. Photo-, video - sound recording stationary equipment as well as broadcasting of judicial session by radio and TV are allowed in a hall of judicial session only by respective court’s decree with the consent of the persons, taking part in the proceedings.
Publicity and openness of administrative process are fixed within article 12 of the Code of Administrative Legal Proceedings of Ukraine. Consideration in administrative courts is open. The court can announce judicial session or its part as closed for the purposes of nondisclosure of state’s or other secret information protected by the law, protection of personal and family life of the person, in interests of the juvenile or minor person, in other cases established by law. The court’s decision drafted in open judicial session, is announced publicly, if the proceedings were closed, then only operative part of a decision is announced publicly.
In administrative legal proceedings right of the persons who are present during the judicial session in open judicial session, are the same as in civil process except that photo-and filming, video - sound recording stationary equipment as well as broadcasting of judicial session by radio and TV are allowed only by respective court’s decree with the consent of the persons, taking part in the proceedings.
Article 20 of the Code of Criminal Procedure of Ukraine establishes that consideration of criminal cases in all courts is opened, except for the cases when it contradicts interests of protection of state’s or other secret information protected by the law. The closed judicial consideration is also allowed for motivated court’s definition in cases regarding the crimes of the persons under 16 years, in cases about sexual crimes, and also in other matters for the purpose of disclosure of data prevention in respect to intimate life’s aspects of persons who are take part in the proceedings and for the purpose of the detained persons’ safety.
Sentences of courts in all cases are announced in open court session.
Photo-, video - sound recording stationary equipment in a hall of judicial session, and also broadcasting of judicial session by radio and TV are allowed with the permission of court.
The law of Ukraine «On access to the court decisions», the remedial legislation establishes that texts of court’s decisions which are opened for the general access through promulgation on an official web portal of the judicial power or official publication, data which helps to identify the physical person cannot be divulged. Such data is replaced with warranty or digital designations. Such data concerns: names of physical persons, their addresses, phone numbers or other communication facility, e-mail addresses, identification numbers (codes), registration numbers of vehicles, other information, giving the chance to identify the physical person.
For access to judicial decisions the State Court Administration of Ukraine provides the unified state docket of court’s decisions. The order of its keeping is approved by Decree of the Cabinet of Ministers of Ukraine of May, 25th, 2006 №740. Items 26 and 29 of given Decree establish procedure of guaranteeing the protection of information which contains data, helping to identify the physical person. The warranty or digital designation of data which cannot be divulged in texts of the judicial decisions opened for the general access is carried out separately concerning each such data with application of codificator, confirmed by the Order of the State Court Administration of Ukraine №59 of June, 13th, 2006.
In order to ensure the openness of courts’ activity in general jurisdiction and assistance issues to identical application of the legislation the Law of Ukraine "On access to the court decisions" was adopted. According to this Law everyone has the right to access to court decisions in an way, defined by this Law.
To perform the right to access the court decisions brought in the Docket, there is a possibility to search, view, copy and print such court decisions or their parts.
Any impairment of the right to use the official web portal of the judicial power of Ukraine is not allowed, except for cases, defined by this Law. In particular, article 7 of this Law provides that in texts of judicial decisions which are opened for the general access through the promulgation on an official web portal of the judicial power or official publication, data which leads to identification of physical person cannot be divulged, as well as cannot be divulged data for the purposes of maintenance of nondisclosure of which the decision about legal investigation in the closed judicial session was accepted.
Judges have the right to access all information resources of the Docket, including the information provided by article 7 of this Law. Judges’ access to the state secret information which is contained within the court decisions is provided according to the Law of Ukraine «On State Secret». The right to access the information resources of the Docket have also the officials defined by order of keeping of the Docket.
The right to access the court decisions is prescribed with official promulgation of court decisions on the official web portal of the judicial power of Ukraine according to the procedure established by the Law «On access to the court decisions». Judicial decisions can be published in printing, distributed via electronic form with observance of requirements of the law. The law regulates relations in respect to provision of access to judicial decisions (to decisions, injunctions, sentences, definitions), decided by courts of general jurisdiction, and conducting the unified state docket of court decisions. The procedure for keeping the unified state docket of court decisions is approved by the Decree of the Cabinet of Ukraine of May, 25th, 2006 №740. Item 1 of the given Decree provides that court decisions of the Supreme Court of Ukraine, the higher specialised, appeal or local courts, except for court decisions which contain information with the state secret information are subject to entering into the Docket.
Access to court decisions provided free of charge through an official web portal of the judicial power of Ukraine in the Internet.
Part II: Evaluation of the judicial decision
The system of valuation of justice’s quality does not exist in Ukraine. The valuation is performed within the limits established by the Law of Ukraine «On Court System of Ukraine» which defines the legal grounds of judicial power organisation and its performance in Ukraine, establishes the general procedure for maintenance the activity of courts and regulates other issues in respect to court system.
Examination of justice’s condition is performed by courts of higher instances. According to articles 26, 33 of mentioned Laws courts of appeal and cassation conduct and analyze the judicial statistics, study and generalise judiciary practice, render the methodical help in respect to application of the legislation by courts of the lower instances.
Examination of justice’s condition provides a valuation of quality of court’s decisions which were a subject for reconsideration by courts of higher instances in order, established by the remedial legislation.
This valuation is performed by means of studying and generalization of judiciary practice, including observance by courts of requirements of the remedial legislation to court’s decisions. Conclusions and recommendations rendered as a result of such examination find its reflexion in Decisions of Plenum of the Supreme Court of Ukraine, in particular, in the Decision №11 of 29.12.1976. «On court’s decision» (with the subsequent additions and amendments).
Examination of court’s decision condition (discrepancy of a court’s decision to requirements of the remedial legislation) can be performed only by court of higher instance in case of its reconsideration in an appeal or cassation order. The ground for this purpose is provided by the remedial legislation, namely the Code of Administrative Legal Proceedings, Code of Civil Procedure, Code of Criminal Procedure of Ukraine.
During the examination of court’s decision condition the attention is paid to conformity of such decisions to requirements of the remedial legislation, namely: legality and validity of the decision, full reflection of circumstances and character of disputable legal relations, the analysis of all proofs and their estimation, the reference to norms of substance and procedural law on which grounds the court has decided the case, consecution of a statement of descriptive and motivation parts of the decision, conformity of operative part of the decision to motivational one, the convincing answer as a matter of fact of the said at above requirements.
The existing procedure for valuation of court’s decision condition corresponds to requirements of the current legislation of Ukraine, principles of administration of justice, provides protection of the rights and freedom of person, guaranteed by the Constitution of Ukraine.
The court’s decision is the most important certificate of justice, called upon to provide protection of the rights and freedom of person, guaranteed by the Constitution of Ukraine, the law and order and administration of the law principle of leadership, proclaimed by the Constitution. Therefore courts have to strictly observe requirements in respect to legality and validity of judicial decisions. The lack supposed by courts, reduce value of a court’s decision in performing the tasks of legal proceedings.
The court’s decisions which correspond to requirements of the law, promote the further strengthening of legality in the branch of civil legal proceedings and raises a precautionary-educational role of the court. For the purpose of quality’s improvement court’s decisions, courts of higher instances (at disposal of legal proceeding in an appeal and cassation order) should pay a special attention at observance by the first instance courts of requirements concerning legality and validity of the court’s decision. Continue the examination and generalization of judiciary practice, analyze the reasons (grounds) of annulment and changing of court’s decisions, inform all the judges about results for the purpose of non-admission of errors in the further work.
Courts of higher instances should react more to the facts of deep judges’ infringement of law requirements by the decision in their address of private definitions.
In the presence of sufficient data concerning non-observance by judges of the remedial law, local judicial bodies should strengthen exactingness at the initiation of questions in respect to their bringing to disciplinary liability.
The State Court Administration, Academy of Judges of Ukraine, Chairmen of court of all levels should organize the training of judges, drawing for this purpose highly skilled experts in the field of the law, in particular judges of higher instance courts.