Words and deeds of the Supreme Court chairman
12.12.2001
In January 2001 the broadened session of the Plenum of the Supreme Court of Ukraine was held. V. Boyko, the chairman of the Supreme Court, delivered the report ‘On rendering justice by common courts in 2000 and measures of its improvement aimed at realizing the Constitution of Ukraine’.
The report was very meaningful, with distinctly determined problems and ways of their solution. But how sincere is Mr. Boyko? In which extent his words correspond with his deals? How often he, controlling, according to Article 51 of the Law ‘On courts’, how courts obey the Law and the interpretations of the Supreme Court Plenum, protests against biased court decisions?
In his report V. Boyko reminded that the jurisdiction of courts covers all legal relations in the state.
In practice the matters look somewhat different. For example, the Supreme Court of Ukraine got a complaint against the decision of the court collegium in charge of civil cases of the Dnepropetrovsk oblast court concerning the claim of K. Ustimenko to the town central heating organization ‘Dnetroteploset’. The Supreme Court rejected the complaint and upheld the decision of the oblast court. The motivation of this resolution is contained in letter No. 6-1791n99 of 20 January 2000 signed by V. Boyko. ‘The Supreme Court based its decision on the fact that any court has no right to reverse orders on disciplinary punishments, since a court is competent only in the question whether the order is legal or illegal’.
However, Article 6 of the Civil Code reads that courts defend citizens’ rights and, if the rights are violated, the court must restore the initial situation. Hence the court has the right to cancel an illegal administrative order.
In this connection we would like to ask several questions from the Chairman of the Supreme Court.
Case 1.A worker handed a claim against the manager of his enterprise about recompensing his moral and material damage caused by illegal sending him for coercive work. The district court ruled out to satisfy the claim in the part relating to the material damage. The court refused to satisfy the demand to recompense the moral damage, since ‘the labor laws do not contain any clauses about moral compensations for illegal transfer to other work’. This decision was based on Article 440 of the Civil Code and any references to the Labor Code. Moreover, the moral damage was collected not from the manager, who ordered the coercive transfer, but from the enterprise, which, in spite of plaintiff’s objections, was determined as another defendant by the decision of the court.
This dubious decision was acknowledged as legal and well-grounded in Boyko’s answer No. 6-2040n00 of 08 June 2000.
V. Boyko’s attitude to recompensing the moral damage by state enterprises was demonstrated in another case.
Case 2.A court acknowledged the actions of the service of rent subsidies as illegal and imposing on citizen’s rights. Again the material damage was recompensed, but not the moral one. The following reason given was that the service of rent subsidies is a state budget organization.
Answering the protest judge Boyko directed letter No. 6-8767n00 of 23 February 2001, in which agreed with this motivation and refused in reversing the decision.
But why one may not take compensation from a state budget organization?!
Case 3.A court considered illegal the transfer of a worker to another job. The decision reads that the position of a 3 rdgrade fitter was absent in the staff list, so the plaintiff was transferred to the position of the 5 thgrade fitter, but with the wages of the 3 rdgrade one.
Basing on this order, the worker turned to court demanding to pay him the difference of the wages. The court rejected his claim because ‘the court did not get ant proofs that the plaintiff really fulfilled the work of a 5 thgrade fitter’. The judges did not want to notice the testimony that there was no work for a 3 rdgrade fitter at the firm. Nonetheless the Supreme Court, in answer No. 6-3091n00 of 13 June 2000 regarded the court decision as legal and well-grounded.
Case 4.Answer of the Supreme Court No. 6-7761n99 of 21 February 2000 regarded the decision of the Dnepropetrovsk oblast court of 30 August 1999 as legal and well-grounded.
This decision was reversed as illegal by the oblast court presidium on 20 October 1999, about which the Supreme Court was informed. The Supreme Court chairman did not protest.
There are some other problems. Everywhere courts violate the procedural terms for preparing and considering civil cases, terms stipulated by Articles 146, 148 of the Civil-Procedural Code (CPC). The trick of relating a case to the category of especially complicated is widely spread. This enables judges to use Article 209 of the CPC for postponing the execution of the motivating part (which should be done within three days) for long periods. In this connection the following case is illustrative.
Case 5.In 1997 a worker turned to court with the complaint that he was illegally disciplinary punished and deprived of the bonus. In 1998 his claim was fully satisfied, but the cassation instance reversed the decision because of the scarcity of information and sent the case for an additional investigation. In 200 the claim was satisfied again, but the cassation instance again reversed the decision, and again directed the case back to the district court for reconsideration.
The disciplinary punishment is already long withdrawn, the bonus is paid in the framework of immediate fulfillment of the first court decision, no falsehood is found in the plaintiff’s testimony, so there are no grounds to reject the already executed decision. The subject of the controversy does not already exist, but the district court must obey the instructions of the cassation instance. As a consequence, the overloaded district courts get additional load.
There is Boyko’s answer No. ?6-8306n00 of 19 December 2000 that approves the decision of the cassation instance.
Case 6.The actions of the main physician of the psycho-neurological dispensary were acknowledges as unlawful by the decision of a district court. He was accused of presenting false information and concealing true information. The court decided to make him present the information about including and excluding patients into and from the register of psychically sick in absentia of patients. The Dnepropetrovsk oblast court cancelled this decision in the cassation order, the case was closed because it was out of the scope of court rights. The legality of this closure was confirmed by V. Boyko in his answer No. 6-1147a93 of 18 November 1996.
The Constitutional Court of Ukraine, having considered the complaint, decided that in cases of refusal to give information or premeditated concealment of information by a medical doctor, his actions may be protested in court, that is such questions lie within the scope of court rights.
Basing on this decision of the Constitutional Court the prosecutor’s office turned to the oblast court about reconsidering the case in connection with new circumstances. Yet, the oblast court rejected the prosecutor’s request, since the decision if the Constitutional Court did not mention the information essential for the correct solution of the case, which the both sides and the court did not and could not know. Obviously, at the moment of taking the decision the court knew that the case lay within the scope of court rights.
In answer No. 6-6778n00 of 29 December 2000 V. Boyko acknowledged the decision of the oblast court as legal and well-grounded, so this case was refused to be considered in the Supreme Court.
For the illustration of Boyko’s attitude we shall present some quotations from his above-mentioned report (‘Visnyk Verkhovnogo Sudu’ [Herald of the Supreme Court], No. 1, 2001):
‘Frankly, one should confess that some of our colleagues themselves provoke distrust and negative estimates by their low professional level, unqualified decisions, simplifications, impoliteness or even rudeness’.
The high status of a judge, who is a carrier of the court power, must make him always be unbiased, just and hard-edged to those, who violate any rights and freedoms of citizens’.
‘Special attention of judges should be paid to the quality of court decisions, which must well-grounded and convincing...’
‘It is necessary... to improve the quality of control over legality and objectivity of court decisions, which already came into force’.
’PL’ commentary:1) As to the first case, one should point out the following. At the moment of taking the decision by the Amur-Nizhnedneprovsk district court of Dnepropetrovsk (29 November 1999) the old version of the resolution of the Plenum of the Supreme Court of Ukraine ‘On court practices in cases concerning moral (non-property) damage’ of 31 March 1995 was acting. Item 2 of this Resolution stipulated that controversies about recompensing a moral damage should be considered only in the cases implicitly listed in the special laws. The conflict concerning the compensation of the damage caused by an illegal use of coercive labor by the enterprise, where the plaintiff worked according to the labor contract, was regulated by labor laws, mainly by the Labor Code of Ukraine (LC). This law, at the moment of the transfer, mentioned only the responsibility of an employer for the material damage of an employee caused by dangerous or harmful labor conditions (Article 173-1 of the LC), as well as damage to the health during fulfilling the labor duties (Article 224 of the LC).
The decision of the court to regard the enterprise as another defendant also did not contradict the operating laws. The reason is that the manager ordered the transfer not as a physical person, but as an official representing the enterprise. It follows that the guilty side is the enterprise, although it, in its turn may suit the manager, who abused the law, and then the manager would have to recompense all the damage inflicted to the enterprise (Article 134, item 8 of the of the LC).
2) In the second case the reference of court that the Service of rent subsidies is a state budget organization (and so it is not responsible for moral damage) is not consistent with laws, although in this case a misinterpretation could occur. The matter is that Article 442 of the Civil Code is still operable since 1985. It stipulates that officials, state or public organizations are responsible for the damage inflicted by them in the process of administration as all other people, but this article refers to other Articles: 440 and 441 of the Civil Code. This means that, if one interprets the law literally (adequately), then it follows that they are irresponsible for any moral damage, since Article 440-1 on recompensing the moral damage was added to the Code as late as in 1993. However, one should interpret this case in a broader sense, since the core of the article is not a list of references, but its main criterion – ‘the main concept of recompensing the damage’.
3) The problems connected with the terms of informing the sides about the court decisions on civil cases are most common problems of the modern civil legal proceedings in Ukraine. The judges are ‘overloaded’ and, since the definition of ‘especially complicated cases’ in part 4 of Article 209 of the Civil-Procedural Code (CPC) is rather vague, judges under this pretext very often relate quite common cases to this category and postpone them. There are cases, when the decision is take not within three days, as it is stipulated by Article 209, but in a week or even several months.
All these actions break part 1 Article 6 of the European Convention of protecting human rights: the right of getting the court decision within a reasonable term and the right of the access to court.
Any explanations about the overloaded national court system in such cases are not taken as mitigating by the European court.
4) Case 6 presents especial interest both for juridical theory and practices. In this case the oblast court rejected the decision of the prosecutor’s office about reconsidering the case in the connection with the appearance of new circumstances, because the new circumstances were but a decision of the Constitutional Court of Ukraine (CCU).
The matter is that Articles 13, 14 of the Law ‘On the Constitutional Court of Ukraine’ distinctly make a hard line between the competence of CCU and common courts. The competence of the CCU lies in determining how legal documents agree with the Constitution. The documents meant are: laws, other legislation acts of the Supreme Rada, decrees of the President and government, international agreements signed by Ukraine, observation of the impeachment procedure by the Parliament and interpretation of laws. This means that the CCU may not consider any court decisions as to their essence, to reverse decisions, etc. This enables many lawyers to doubt the competence of the CCU as a court.
The fulfillment of the CCU official resolutions is obligatory for all legal subjects in Ukraine (Article 69 of the Law), but such fulfillment is possible only in the framework of the existing procedures. In the case considered the cassation instance took the decision, which becomes operable immediately after announcing without the right to be appealed (Article 321 of the CPC). Thus means that in order to change the decision the special procedure must be applied: the protest of a competent official in the framework of surveillance or a prosecutor’s order about the reconsidering the case in connection with the appearance of new circumstances. However, Article 343 of the CPC does not mention among these circumstances an appearance of the Constitutional Court interpretation, which does not agree with the decision of the court (the same is true also for the decisions of the European court of human rights). Account of the interpretation by the Constitutional Court certainly must be added to the list of circumstances. This will enable the claimant to seek the reversing or changing the court decision by himself, without turning to a prosecutor’s office. Yet, nowadays the refusal of the oblast court to reconsider the case was quite well-grounded, since the Constitutional Court did not add any new factual circumstances, about which the court did not or could not know
In this case the mistake was made by the prosecutor’s office, since it would be better to hand the protest in the framework of surveillance, on the basis of the improper interpretation of the property rights by the court (Articles 313, 338 of the CPC).
Besides, it must be noted that the plaintiff did not get the information about his including and excluding into and from the register of psychically sick. This means that the violation of the Constitution, noted in the CCU decision, continue, the CCU decision is not obeyed yet.
To sum up, we want to point out the excessive importance of the precedents described by Konstantin Ustimenko and to thank him for his long fruitful work. At the same time we want our readers to pay attention to the positive changes in the work of the Supreme Court of Ukraine and the court system as a whole. This promising fact was more than once marked in ‘PL’.
Editor’s board
The report was very meaningful, with distinctly determined problems and ways of their solution. But how sincere is Mr. Boyko? In which extent his words correspond with his deals? How often he, controlling, according to Article 51 of the Law ‘On courts’, how courts obey the Law and the interpretations of the Supreme Court Plenum, protests against biased court decisions?
In his report V. Boyko reminded that the jurisdiction of courts covers all legal relations in the state.
In practice the matters look somewhat different. For example, the Supreme Court of Ukraine got a complaint against the decision of the court collegium in charge of civil cases of the Dnepropetrovsk oblast court concerning the claim of K. Ustimenko to the town central heating organization ‘Dnetroteploset’. The Supreme Court rejected the complaint and upheld the decision of the oblast court. The motivation of this resolution is contained in letter No. 6-1791n99 of 20 January 2000 signed by V. Boyko. ‘The Supreme Court based its decision on the fact that any court has no right to reverse orders on disciplinary punishments, since a court is competent only in the question whether the order is legal or illegal’.
However, Article 6 of the Civil Code reads that courts defend citizens’ rights and, if the rights are violated, the court must restore the initial situation. Hence the court has the right to cancel an illegal administrative order.
In this connection we would like to ask several questions from the Chairman of the Supreme Court.
Case 1.A worker handed a claim against the manager of his enterprise about recompensing his moral and material damage caused by illegal sending him for coercive work. The district court ruled out to satisfy the claim in the part relating to the material damage. The court refused to satisfy the demand to recompense the moral damage, since ‘the labor laws do not contain any clauses about moral compensations for illegal transfer to other work’. This decision was based on Article 440 of the Civil Code and any references to the Labor Code. Moreover, the moral damage was collected not from the manager, who ordered the coercive transfer, but from the enterprise, which, in spite of plaintiff’s objections, was determined as another defendant by the decision of the court.
This dubious decision was acknowledged as legal and well-grounded in Boyko’s answer No. 6-2040n00 of 08 June 2000.
V. Boyko’s attitude to recompensing the moral damage by state enterprises was demonstrated in another case.
Case 2.A court acknowledged the actions of the service of rent subsidies as illegal and imposing on citizen’s rights. Again the material damage was recompensed, but not the moral one. The following reason given was that the service of rent subsidies is a state budget organization.
Answering the protest judge Boyko directed letter No. 6-8767n00 of 23 February 2001, in which agreed with this motivation and refused in reversing the decision.
But why one may not take compensation from a state budget organization?!
Case 3.A court considered illegal the transfer of a worker to another job. The decision reads that the position of a 3 rdgrade fitter was absent in the staff list, so the plaintiff was transferred to the position of the 5 thgrade fitter, but with the wages of the 3 rdgrade one.
Basing on this order, the worker turned to court demanding to pay him the difference of the wages. The court rejected his claim because ‘the court did not get ant proofs that the plaintiff really fulfilled the work of a 5 thgrade fitter’. The judges did not want to notice the testimony that there was no work for a 3 rdgrade fitter at the firm. Nonetheless the Supreme Court, in answer No. 6-3091n00 of 13 June 2000 regarded the court decision as legal and well-grounded.
Case 4.Answer of the Supreme Court No. 6-7761n99 of 21 February 2000 regarded the decision of the Dnepropetrovsk oblast court of 30 August 1999 as legal and well-grounded.
This decision was reversed as illegal by the oblast court presidium on 20 October 1999, about which the Supreme Court was informed. The Supreme Court chairman did not protest.
There are some other problems. Everywhere courts violate the procedural terms for preparing and considering civil cases, terms stipulated by Articles 146, 148 of the Civil-Procedural Code (CPC). The trick of relating a case to the category of especially complicated is widely spread. This enables judges to use Article 209 of the CPC for postponing the execution of the motivating part (which should be done within three days) for long periods. In this connection the following case is illustrative.
Case 5.In 1997 a worker turned to court with the complaint that he was illegally disciplinary punished and deprived of the bonus. In 1998 his claim was fully satisfied, but the cassation instance reversed the decision because of the scarcity of information and sent the case for an additional investigation. In 200 the claim was satisfied again, but the cassation instance again reversed the decision, and again directed the case back to the district court for reconsideration.
The disciplinary punishment is already long withdrawn, the bonus is paid in the framework of immediate fulfillment of the first court decision, no falsehood is found in the plaintiff’s testimony, so there are no grounds to reject the already executed decision. The subject of the controversy does not already exist, but the district court must obey the instructions of the cassation instance. As a consequence, the overloaded district courts get additional load.
There is Boyko’s answer No. ?6-8306n00 of 19 December 2000 that approves the decision of the cassation instance.
Case 6.The actions of the main physician of the psycho-neurological dispensary were acknowledges as unlawful by the decision of a district court. He was accused of presenting false information and concealing true information. The court decided to make him present the information about including and excluding patients into and from the register of psychically sick in absentia of patients. The Dnepropetrovsk oblast court cancelled this decision in the cassation order, the case was closed because it was out of the scope of court rights. The legality of this closure was confirmed by V. Boyko in his answer No. 6-1147a93 of 18 November 1996.
The Constitutional Court of Ukraine, having considered the complaint, decided that in cases of refusal to give information or premeditated concealment of information by a medical doctor, his actions may be protested in court, that is such questions lie within the scope of court rights.
Basing on this decision of the Constitutional Court the prosecutor’s office turned to the oblast court about reconsidering the case in connection with new circumstances. Yet, the oblast court rejected the prosecutor’s request, since the decision if the Constitutional Court did not mention the information essential for the correct solution of the case, which the both sides and the court did not and could not know. Obviously, at the moment of taking the decision the court knew that the case lay within the scope of court rights.
In answer No. 6-6778n00 of 29 December 2000 V. Boyko acknowledged the decision of the oblast court as legal and well-grounded, so this case was refused to be considered in the Supreme Court.
For the illustration of Boyko’s attitude we shall present some quotations from his above-mentioned report (‘Visnyk Verkhovnogo Sudu’ [Herald of the Supreme Court], No. 1, 2001):
‘Frankly, one should confess that some of our colleagues themselves provoke distrust and negative estimates by their low professional level, unqualified decisions, simplifications, impoliteness or even rudeness’.
The high status of a judge, who is a carrier of the court power, must make him always be unbiased, just and hard-edged to those, who violate any rights and freedoms of citizens’.
‘Special attention of judges should be paid to the quality of court decisions, which must well-grounded and convincing...’
‘It is necessary... to improve the quality of control over legality and objectivity of court decisions, which already came into force’.
’PL’ commentary:1) As to the first case, one should point out the following. At the moment of taking the decision by the Amur-Nizhnedneprovsk district court of Dnepropetrovsk (29 November 1999) the old version of the resolution of the Plenum of the Supreme Court of Ukraine ‘On court practices in cases concerning moral (non-property) damage’ of 31 March 1995 was acting. Item 2 of this Resolution stipulated that controversies about recompensing a moral damage should be considered only in the cases implicitly listed in the special laws. The conflict concerning the compensation of the damage caused by an illegal use of coercive labor by the enterprise, where the plaintiff worked according to the labor contract, was regulated by labor laws, mainly by the Labor Code of Ukraine (LC). This law, at the moment of the transfer, mentioned only the responsibility of an employer for the material damage of an employee caused by dangerous or harmful labor conditions (Article 173-1 of the LC), as well as damage to the health during fulfilling the labor duties (Article 224 of the LC).
The decision of the court to regard the enterprise as another defendant also did not contradict the operating laws. The reason is that the manager ordered the transfer not as a physical person, but as an official representing the enterprise. It follows that the guilty side is the enterprise, although it, in its turn may suit the manager, who abused the law, and then the manager would have to recompense all the damage inflicted to the enterprise (Article 134, item 8 of the of the LC).
2) In the second case the reference of court that the Service of rent subsidies is a state budget organization (and so it is not responsible for moral damage) is not consistent with laws, although in this case a misinterpretation could occur. The matter is that Article 442 of the Civil Code is still operable since 1985. It stipulates that officials, state or public organizations are responsible for the damage inflicted by them in the process of administration as all other people, but this article refers to other Articles: 440 and 441 of the Civil Code. This means that, if one interprets the law literally (adequately), then it follows that they are irresponsible for any moral damage, since Article 440-1 on recompensing the moral damage was added to the Code as late as in 1993. However, one should interpret this case in a broader sense, since the core of the article is not a list of references, but its main criterion – ‘the main concept of recompensing the damage’.
3) The problems connected with the terms of informing the sides about the court decisions on civil cases are most common problems of the modern civil legal proceedings in Ukraine. The judges are ‘overloaded’ and, since the definition of ‘especially complicated cases’ in part 4 of Article 209 of the Civil-Procedural Code (CPC) is rather vague, judges under this pretext very often relate quite common cases to this category and postpone them. There are cases, when the decision is take not within three days, as it is stipulated by Article 209, but in a week or even several months.
All these actions break part 1 Article 6 of the European Convention of protecting human rights: the right of getting the court decision within a reasonable term and the right of the access to court.
Any explanations about the overloaded national court system in such cases are not taken as mitigating by the European court.
4) Case 6 presents especial interest both for juridical theory and practices. In this case the oblast court rejected the decision of the prosecutor’s office about reconsidering the case in the connection with the appearance of new circumstances, because the new circumstances were but a decision of the Constitutional Court of Ukraine (CCU).
The matter is that Articles 13, 14 of the Law ‘On the Constitutional Court of Ukraine’ distinctly make a hard line between the competence of CCU and common courts. The competence of the CCU lies in determining how legal documents agree with the Constitution. The documents meant are: laws, other legislation acts of the Supreme Rada, decrees of the President and government, international agreements signed by Ukraine, observation of the impeachment procedure by the Parliament and interpretation of laws. This means that the CCU may not consider any court decisions as to their essence, to reverse decisions, etc. This enables many lawyers to doubt the competence of the CCU as a court.
The fulfillment of the CCU official resolutions is obligatory for all legal subjects in Ukraine (Article 69 of the Law), but such fulfillment is possible only in the framework of the existing procedures. In the case considered the cassation instance took the decision, which becomes operable immediately after announcing without the right to be appealed (Article 321 of the CPC). Thus means that in order to change the decision the special procedure must be applied: the protest of a competent official in the framework of surveillance or a prosecutor’s order about the reconsidering the case in connection with the appearance of new circumstances. However, Article 343 of the CPC does not mention among these circumstances an appearance of the Constitutional Court interpretation, which does not agree with the decision of the court (the same is true also for the decisions of the European court of human rights). Account of the interpretation by the Constitutional Court certainly must be added to the list of circumstances. This will enable the claimant to seek the reversing or changing the court decision by himself, without turning to a prosecutor’s office. Yet, nowadays the refusal of the oblast court to reconsider the case was quite well-grounded, since the Constitutional Court did not add any new factual circumstances, about which the court did not or could not know
In this case the mistake was made by the prosecutor’s office, since it would be better to hand the protest in the framework of surveillance, on the basis of the improper interpretation of the property rights by the court (Articles 313, 338 of the CPC).
Besides, it must be noted that the plaintiff did not get the information about his including and excluding into and from the register of psychically sick. This means that the violation of the Constitution, noted in the CCU decision, continue, the CCU decision is not obeyed yet.
To sum up, we want to point out the excessive importance of the precedents described by Konstantin Ustimenko and to thank him for his long fruitful work. At the same time we want our readers to pay attention to the positive changes in the work of the Supreme Court of Ukraine and the court system as a whole. This promising fact was more than once marked in ‘PL’.
Editor’s board