National School of Judges of Ukraine
Honoured Lawyer of Ukraine
In the article the author shows the arguments in favor of regulatory consolidation of the judicial decision-making procedure (resolution) in the deliberation room, as a precondition to ensure its legality, validity and human rights guarantees in the Code of Ukraine about administrative violations.
Keywords: supremacy of law, unity of the system of general jurisdiction courts, unique order of a realization of the legal proceeding, secret of deliberative room, acceptance of court decision as one of principles of judge independence providing.
The Law of Ukraine “On the Judiciary and Status of Judges” determines the legal principles of organization of the judiciary and administering justice in Ukraine in order to protect rights, freedoms and legal interests of persons and citizens, rights and legal interests of legal persons, interests of the state based on the rule of law principle, establishes the general procedure for supporting the operation of courts and judges and regulates other matter related to the judicial system and the status of judges. According to Article 22 of the Law, which establishes the authority of a local court, the latter shall hear civil, criminal, and administrative cases as well as administrative offence cases in cases and pursuant to procedure stipulated by procedural law.
In administering justice on the basis of the rule of law, court shall ensure everyone’s right to a fair trial and respect for other rights and basic freedoms guaranteed by the Constitution and laws of Ukraine, as well as international treaties recognized as binding by the Verkhovna Rada of Ukraine.
Judicial independence as one of the fundamental principles of court operation is ensured by a number of normative documents, in particular by a unified for all courts order of judicial procedure prescribed by the procedural law, secrecy of judicial decision-making process (Part 4 of Paragraph 4 of Article 47 of the Law of Ukraine “On the Judiciary and Status of Judges”).
Legal guarantees of a fair and impartial consideration of administrative offences are established by Article 7 of the Code of Ukraine on Administrative Offences.
However, the unified procedure of administration of justice, proclaimed by the law, and secrecy of judicial decision-making process in the deliberation room in particular, is not secured by the legislation on administrative offences.
If the provisions of the Commercial Code of Ukraine (Art. 82, Art 82-1), the Criminal Procedure Code (Art. 366-367), the Civil Procedure Code (Art 195 – 196), the Code of Administrative Procedure (Art 153-154) establish a single procedural order of decision-making process in the deliberation room, which guarantees the secrecy of the deliberation room, the Ukrainian legislation on Administrative Offences does not provide for the rules of decision-making in cases of administrative offences.
And this is given the fact that according to the Opinion of the European Court of Human Rights and Council of Europe Group of States against Corruption (GREKO), the majority of these cases should be regarded as criminal, and the impact of case decisions on subjects of administrative jurisdiction is significant.
Sometimes such decisions affect the fate of not only persons brought to justice, but also of their relatives.
The wording of the regulation on secret of deliberation room differs slightly in various areas of law, but its essence is the same.
The essence of the institute of deliberation room is determined by the provisions of the Law of Ukraine “On the Judiciary and Status of Judges”, namely that on the unity of the system of courts of general jurisdiction ensured by the unified basis for organization and functioning of courts, mandatory nature of rules of legal proceedings specified by law for all courts, secrecy of decision-making process.
According to these provisions the court shall take a decision in the deliberation room, where may not be anyone except for the members of the court.
A, V. Novikov does not regard the secrecy of deliberation room as an unnecessary formality and supports his viewpoint with the following: “This rule is an element of such principles of justice as the judicial independence, impartiality of dispute resolution, and complete, objective, comprehensive and timely examination of the case. The stated principles imply taking decision based on free assessment of evidence collected and submitted by the parties. The deliberation room excludes a situation when a judge can be influenced or pressed to adopt particular decisions or simply distracted from the thoughtful decision-making” .
I. S. Dikarev stands on the same position. He notes that a judge can assess the evidence according to their inner convictions and take a decision based on law and conscience only when they are exempt from undue (non-procedural) influence aimed at persuading them to take the position of either of the parties .
This opinion is noteworthy since it is based on general principles of justice and judicial practice data. Normative regulation of the activities of state bodies and officials is the necessary condition for the legal state recognition. Court decisions which end the proceedings are taken in the name of the state of Ukraine. According to paragraph 2 of Article 15 of the Law of Ukraine “On the Judiciary and Status of Judges”, a judge considering a case single-handedly shall act as a court. The stated provision of the Law establishes that in courts cases shall be considered by a single judge, and in cases prescribed by the procedural law by a panel of judges. Therefore, the court shall retire to deliberation room to adopt a judgement, irrespective of whether the case is heard by a single judge or a panel of judges.
Thus, it is impossible to agree with the position of the authors who consider it necessary if not provide by law the obligation of a court (judge) to take decision, which ends the proceedings on the administrative offence, in the deliberation room, then at least make such right applicable when necessary [1, 2].
Granting of legally permissible alternatives on this issue will contribute to the subjective approach to the decision-making in cases of the stated category and, thus, to difference in practice, and can be used to create artificial grounds for appeal.
The procedure for decision-making is not established in either the Code of Ukraine on Administrative Offences or the resolutions of the Plenum of the High Specialized Court of Ukraine for Civil and Criminal Cases, which on the basis of the judicial practice generalization provides clarification on the issues arising.
Part one of Article 285 of the Code of Ukraine on Administrative Offences, which provides for declaring a judgment immediately after the hearing of the case, i.e. without retiring to the deliberation room, contradicts the general principles of administration of justice, established by the Law of Ukraine “On the Judiciary and Status of Judges”.
Analysis of judicial practice in cases of administrative offences, including the study of quality of issuance of court decisions in cases of administrative offence, suggests that courts do not always comply with the requirements of the law regarding clarification of circumstances of each case, its solving in strict accordance with the law and prevention of offences.
In consideration of the case a judge shall clarify whether the offense was committed, whether a person is to blame and subject to administrative responsibility, whether there are circumstances mitigating or aggravating the responsibility and/ or other circumstances that may affect the proper decision of the case” (Art. 280 of the Code of Ukraine on Administrative Offences).
Although the main causes of adoption of wrong decisions in administrative offences cases are improper check and incorrect assessment of circumstances with which the law binds the arising of administrative responsibility, quite often court decisions are cancelled due to neglect of the law, mainly Article 283 of the Code of Ukraine on Administrative Offences regarding the content of court decisions in cases of the mentioned category.
Thus, according to court statistics in 2011 courts considered 1 328 700 cases on administrative offences. For various reasons courts closed proceedings in respect of 179 300 persons. Among them 42 300 were closed for the absence of event of an administrative offence.
Pursuant to the requirements of the Law of Ukraine “On the Prevention and Combating Corruption” from April 7, 2011, the Code of Ukraine on Administrative Offence was amended by Chapter 13-A “Administrative Corruption Offences”. Accordingly, in 2011 courts received more than 1 500 cases in this category. Of these courts closed the cases against 225 persons, which makes 25% of those, whose consideration of cases ended in the decision. Cases against 196 persons were closed for the absence of event of an administrative offence, which makes 15,3% of those, who were blamed for committing a corruption offence.
General courts of appeal received almost 18 000 appeals and protests of prosecutors, among which they considered 14,2% cases and canceled or amended 18,5% decisions.
Statistical data of the State Judicial Administration of Ukraine not only represents the number of cases of this category, but also gives an idea of their complexity and ambiguity of resolution approaches.
Court decision on the recognition of a person guilty of an administrative offence shall be substantiated by sufficient and indisputable evidence, namely: a protocol on administrative violation, an explanation of the person called to justice, witnesses, expert opinion, evidence etc.
However, in many cases orders do not provide explanations of the person called to justice, explanations of witnesses and other evidence of the defendant’s guilt, the reasoning and conclusions of the court, and give only one sentence on the definition of the elements of offence.
In some cases to prove the guilt of the accused person the court refers only to the protocol on administrative violation or to the fact that the offence is confirmed by the materials of the case file, without providing and evaluating evidence”.
Quite often court orders refer to evidence provided with the violation of the specified law. In particular, when drawing up protocols on administrative offence the officials violate the requirements of Art. 256 of the Code of Ukraine on Administrative Offence (incorrectly or not in full indicate place, time and circumstances of the administrative offence, do not fix addresses of witnesses and victims, the consequences of the offense and other evidence needed to solve the case, allow other deviations from existing regulations).
Thus, the Court of Appeal of Kyiv cancelled the decision of Solomyansky District Court of Kyiv on M., found guilty of committing an administrative offence under Art. 124 of the Code of Ukraine on Administrative Offence, as the decision of the district court was based on the reference to the protocol on administrative violation that did not comply with the requirements of Art. 256 of the Code of Ukraine on Administrative Offence. It did not contain explanations of the offender, instead it referenced his explanations set forth on the separate sheet of paper, which was not found among the materials of the case file. The protocol did not contain the signature of the offender and his sign on being clarified his rights and obligations according to Art. 268 of the Code of Ukraine on Administrative Offence. There were no data on witnesses and victims, and no indication of information carriers, which recorded the fact of notification of the offender of time and place of the proceedings.
The quality of consideration of cases on administrative violations and issuance of orders indicates that the stated category of cases is not given enough attention as opposed to criminal cases. Although, according to the Law of Ukraine “On the Judiciary and Status of Judges” they are the part of a single system of justice and should be treated accordingly.
In our opinion, one reason for the poor quality of decisions on administrative offences is the absence of the provision in the Code of Ukraine on Administrative Offence binding the court to retire to the deliberation room to adopt a judgement.
Objective analysis of the evidence in the case, its evaluation, formation of the legal position and conclusions, their substantiation and production of the judicial decision take time. Therefore, the provision of part 1 of Article 285 of the Code of Ukraine on Administrative Offence, which prescribes to declare the court decision immediately after the proceedings, is not only contrary to the general principles of administration of justice, but also contributes to the adoption of ill-considered judgments that is a violation of human rights.
If a court decision in case of administrative offence is taken without retiring to the deliberation room, this could be a reason for its appeal, as according to the provisions of the Law of Ukraine “On the Judiciary and Status of Judges”, the judge’s retirement to the deliberation room to adopt a judgment is a mandatory procedure. However, decision-making during court proceedings without retiring to the deliberation room can also be considered legitimate, as the Code of Ukraine on Administrative Offence does not contain a provision on the need for a judge to retire to the deliberation room to take a decision.
Thus, the absence of a regulation providing for the procedure to be followed in decision-making in a case concerning an administrative offence, leads to that there is no uniformity of judicial practice for this category of cases. Besides, the announcement of judgment in the case immediately after its consideration, without retiring to the deliberation room, not only contradicts to the principles of the procedure, which are the same for all areas of law, but could also be seen as a lack of respect for human rights.
Therefore, to ensure observance of human rights and general principles of justice for this category of cases, it is necessary to introduce the institution of the deliberation room to the Code of Ukraine on Administrative Offence, which will contribute to uniformity of judicial practice.
- Novikov A.V. Nuzhna li soveshchatelnaya komnata dlya vyneseniya postanovleniya po delam ob administrativnykh pravonarusheniyakh? // Rossiyskiy sudya. – 2013. – № 2. – S. 18-22.
- Dikarev I.S. Tayna soveshchaniya sudey kak garantiya printsipa svobody otsenki dokazatelstv // Rossiyskiy suya. – 2008. – №7. – S. 11.