Some problems of legal protection of citizens in Ukraine
12.10.05 | Yuri Motorny, Poltava
It was written much about the absence of efficient protection of rights and interests of citizens in Ukraine. However, in spite of general declarations, intentions and promises to improve the situation, no concrete measures were taken: the operating laws were not changed, and new laws were not created. The vivid example of numerous violations of rights of citizens is the growing quantity of the complaints handed to the organs of state power and courts. The President even has had to create an additional bureaucratic organ – the system of Presidents public reception offices, which have no juridical status and cannot influence any processes, diminishing, at the same time, the authority of local power. The officials should understand: if administration cannot settle a problem, then public reception offices cannot do that too, and workers of these offices will only direct citizens complaints to certain departments, establishments or organizations, from where the complainers will receive only formal answers. So, a round sum will be wasted for rent, salaries, equipment and stationery. The reception offices do not solve any problems except the political aspect (closeness to the people). So, some time later the need will arise to liquidate these offices, and the population will be disappointed, for the umpteenth time, with the methods of work of Presidents administration. We want to point out that such organs do not exist and cannot exist in other civilized countries with the high level of executive discipline and responsibility. There the system of legal protection of individual has been created and works efficiently. Organization of the reception offices has confirmed again that the new power has no strategic and tactical approaches to the solution of legal problems.
One of efficient tools for protection of citizens rights, as it is done in democratic countries, can be the advocates association, although it cannot be regarded as a united integral organization. The advocates association was separated by various factors, but not only by the forms of activities: juridical consultations, private offices, bureaus, firms, etc. Some advocates successfully work in the corporative right, they attend to enterprises and firms, in particular, they deal with foreign investments. They are not directly connected with the protection of rights and interests of citizens and almost do not take part in consideration of criminal, civil and administrative cases; so, they cannot know the particulars of all existing problems. Yet, just these lawyers are most powerful, have the connections with top authorities and can influence them. They actively appear in the press and on TV, thus creating the image of advocates community as a whole. They work in the greatest industrial towns and in the capital. We want to remark without any envy that this category is the most high-paid. These advocates also serve the richest citizens of Ukraine, including top state officials.
Other lawyers are teachers in higher schools, workers of militia, prosecutors office s, the USS and other state agencies. They also actively cooperate, as a rule through public organizations, with power organs and international organizations; they also form the opinion about the activities of advocates. The lawyers-state employees do not practice advocates activities, although they have the corresponding documents. They assess the problems of advocates community from the viewpoint of international right, considering them, as a rule, only after formal features.
The most numerous group is the advocates, who realize the everyday reception of citizens, give the consultations, compile the appeals, complaints and petitions, take part in court consideration of cases. This publication concerns them, because this very category daily practices the human rights protection activities, bears the enormous moral, psychological, physical and intellectual burden, directly solving the problems of citizens. At any weather and time they stay in queues to investigatory isolation wards and temporary detention centers, they persuade the officers of militia, prosecutors office and the USS that Article 59 of the Constitution, which renders to everybody the right for legal aid, must be observed in these establishments. People tell them about violations of rights and misuses of power, and every lawyer has to be occupied with the problems of his client. Advocates are waiting for months, sometimes without any hope, for receiving from the organs of state power, enterprise, organizations and banks of a reference or a document copy, for creation of which only several minutes are needed. Yet, legislation does not envisage the responsibility for not-giving of answer or for a formal response.
It would be an overestimate to say that all advocates conscientiously and professionally fulfill their duty. Unfortunately, there are many examples that evidence about the reverse. Some advocates, who have noticeable work experience, are sure: the level of professional skill, responsibility and culture of advocates of 1970s-80s was much higher. Their intellectual level and their behavior were a model for following. The advocates were united with high spiritual level, feeling of responsibility and mutual support. Scores of lawyers, journalists, students and representatives of intelligentsia attended the appearances of the best advocates in court. The speeches in court were examples of oratorical mastery.
It is a pity, but the majority of Ukrainian population is poor. So the advocates of the considered category cannot figure on high remuneration of their work (this concept is, of course, relative, but, in opinion of the author, it is something about 5000 hryvnas). The difference in salaries is vividly demonstrated by the offices of juridical firms, which work in the sphere of corporative right, and the dilapidated juridical consultations or offices of advocates in Kyiv and regional centers, to say nothing about the offices of private notaries even in district centers. Many advocates cannot afford the rent for office and receive clients at home, in cafes and in other improper places. Other proof of poverty of advocates is the absence of representatives of this profession in many district centers (in the Soviet time at least two advocates were working there) and transfer to the posts of judges or other state service. Despite the fact that top state officials declare now and then about the intention to make the legal aid available, taxes and other payments still remain a heavy burden for the professional human rights protectors. So, an advocate must pay rent and communal services from the obtained remuneration. 32.3% are paid to the Pension fund (other citizens, including the President and Prime Minister pay 1%) and 13% are the income tax. So, the lawyer obtains less than 50% of his honorarium!
Taking into account the mentioned circumstances and permanent growth of prices in the state, it is obvious that the price of services will be high. Naturally, it varies depending on the amount of work and region, but the qualified, professional aid should be paid for. This is the elementary respect to intellectual work. Now the work of, for instance, locksmith, technician or driver is paid much better. One more demonstrative proof of improper evaluation by the state of lawyers work is the size of remuneration for participation in criminal cases by appointment. So, it is not strange that advocates do not want to work in such cases, and even if they are taking part, they are present only during consideration of the case. Thus, the state only creates the appearance that it pays, and the advocates make a show that they work… We want to point out: lawyers have interpreted very painfully and critically the statement of Minister of Justice R. Zvarych that they would be obliged to render legal aid free of charge. First of all, advocates association is a public self-governing union and it is an unrealizable task to dictate some conditions of work to this category of citizens. Secondly, references to the examples of other countries are not only incorrect, but also evidence about the ignorance or disdain for real circumstances. Remuneration of advocates services in a district center or even in Kyiv noticeably differs from payment in other countries (the size of honorariums in the USA is shocking and seems to be unreal). We want to emphasize once more: only high payment of lawyers work can create the preconditions for the support and growth of his professionalism.
We also want to mention other aspects, which are founded on poverty of advocates. Of course, some of them have insufficient theoretical and professional skills. This is illustrated by the run of special juridical editions. If every lawyer subscribed to the newspapers “Yuridichny Visnyk Ukrainy” (“The Juridical Herald of Ukraine”) and “Yuridichna Praktika” (“The Juridical Practice”), as well as the magazine “Advocate” and other special magazines of the Constitutional Court, Supreme Court, Supreme economic court, etc., then the run of these editions would substantially increase. By the way, I believe that a lawyer cannot be called a real professional without reading such editions.
The majority of advocates (I think that abut 95%) cannot pay for educational seminars and so do not visit them. So, about what rising of qualification one can say? While judges, prosecution and police officers regularly raise their qualification, exchange experience and obtain special literature, the system of training of advocates practically does not exist. There we should mention the positive example of Olga Zhukovska, the vice-president of advocates association, who organized the training in questions of application of the European Convention, and administration of the “Program of legal protection and education of mass media”, which conducted a number of seminars on the problems of Ukrainian legislation regulating the activities of mass media.
There is one more factor of negative influence of the state. In accordance with Article 17 of the Rules of advocates ethics, the agreement about rendering of legal aid should determine the size of honorarium, as well as the order of its calculation (fixed sum or hourly pay) and payment (advancing, payment by results, etc.). Taking into consideration the fact that the clients have not sufficient means for advancing the full payment for advocates services and that the positive result cannot be guaranteed, just the “payment by results” must be used first of all.
Obtaining the advance an advocate would be interested in the most complete satisfaction of his client, because his honorarium would depend on the final result. Yet, this form of payment almost is not applied. The experience evidences that clients not always can pay the full sum in proper time, so the advocates have to turn to court. Along with the enormous moral burden, a lawyer must pay the legal expenses. At the same time, Article 3 of the Constitution “Human rights and freedoms and their guarantees” determines the contents and direction of activities of the state, Article 21 of the Basic Law reads that all citizens are equal in their rights, Article 24 of the Constitution guarantees the equal rights and freedoms and Article 43 envisages the protection by law of the right for timely remuneration of work. However, the Decree of the Cabinet of Ministers “On state due” does not envisage privileges for advocates (which are given to other categories of citizens by item 1 of Article 4 of the Decree). Moreover, even if the due is paid and the written agreement is concluded, there are no guarantees of satisfaction of the claim, which is confirmed by the cases, where courts have decreased the amount of remuneration in several times. Thousands of letters to the Cabinet of Ministers (now and in previous years) with the propositions to introduce, as soon as possible, changes into the mentioned Decree and to cancel payment of due in the cases on demanding of honorariums (this concerns not only advocates, but also journalists, writers, etc.), are not considered. The position of government is not changing: it ignores the problem, thus losing the authority and budget earnings, since, in case of satisfaction of a claim, court would levy the expenses in favor of the state from the guilty side. Te above-listed conditions make the advocates to demand only the advancing of payments, which results in negative consequences.
The propositions are also not considered to introduce the single tax for lawyers, although, in the opinion of the author, it is not a panacea. For example, an advocate working in a district center, who must pay 600 hryvnas per three months, will go bankrupt soon. It seems that it should be more advisable to equalize lawyers with other citizens, who pay 1% to the Pension fund, and to oblige them to pay the income tax. The proposition to introduce the single tax at the rate 13-20% also seems reasonable.
Irresponsibility of law-enforcing organs and courts is a special problem. Let us consider several examples.
The officers of the Zinkivskiy district police station of the Poltava region detained citizen S. at his home in a village of the Sumy region. They transported him to the Zinkivskiy police station, placed him to the special detention center and compiled the resolution, which was sanctioned by the prosecutor, on the detention for 30 days for vagrancy. At that the policemen had S.s military card; moreover, some officers of the district station knew him personally. The complaints directed to court, the Ministry of Interior and prosecutors office were ignored.
We know many examples, when investigation is carried out by not-procedural persons. These facts are ignored by the prosecutors office and court, as a result of which the demands of the Civil-Procedural Code and of Article 62 of the Constitution, which envisages proving of guilt in accordance with legal procedure, are violated. So, it was resolved in criminal case No. 1-27: the investigation actions were carried out by several persons without issuing of the resolution on proceeding of the case; the materials obtained by these people were acknowledged as proofs in the case; police officers were witnesses during the investigation actions; reconstruction of the place and circumstances of the crime was carried out “in the Poltava district of the Poltava region”, without mentioning not only of concrete address, but even of the settlement; the place of event was called in the protocol “house made of white brick” and another document described the same place as “a house of cream-red color”. Besides, it has appeared that at the place, which is pointed out as the place of the event, a house (of any color) is absent at all, and the land is allotted for building to quite another person (not a victim).
These and other essential violations of law are sufficient for cancellation of the verdict, but are ignored by the Supreme General Prosecutors office and the Supreme Court, where the cassation complaint and the appeals on revision of the verdict on the basis of exceptional legal proceedings have been sent. Circumstances of this case were the topic of a TV feature at an all-Ukrainian channel and of several critical publications in the press; attention of public was attracted to this story; an appeal to the European Court was handed. Yet, the law is ignored all the same.
We also cannot omit numerous violations of victims rights. So, in early hours of the morning of 10 November 2003 (21 months ago) a road accident took place on the road Mirgorod-Khorol, as a result of which one person perished, and two others (including one child) became invalids. In spite of numerous complaints of the victims to the Police department of the Poltava region, the Ministry of Interior, regional prosecutors office and General Prosecutors office, accusation has not been preferred to anybody until now. The victims spent round sum for treatment, but they cannot demand the compensation of these expenditures, as well as the inflicted moral damage. Today we can state that prosecutors office not only does not guarantee the lawfulness of actions of police, but covers its passivity. The complaints to courts against the passivity of law-enforcing organs are considered for years. So, a lawyer is deprived of the efficient methods for protection of his client.
Under the mentioned conditions it is impossible to form the positive opinion of population about law-enforcing organs, courts and advocates, from whom people cannot obtain justice.
Let us turn the attention to other, not less important aspects of legal protection. So, along with lawyers, other citizens also render juridical services. Some of them have juridical education, but the majority has not. After familiarization with the text of the Civil Code they regard themselves as specialists in the sphere of law. Courts have no right to prohibit these persons to represent the interests of a side, since they have written or oral commission of the side. There are many examples of the professional attitude to a case among lawyers, but this number is very little among other persons. Frequently, compiling a complaint against a court decision or resolution, I think: it would be better, if the side represented its interests by itself…
On 25 June 2005 a Congress of advocates of Ukraine was conducted. However, the organs of state power factually ignored it and did not direct there their representatives. So, the problems of protection of rights of citizens, as well as the problems concerning the activities of advocates, were not heard. The work of the congress was suspended and the working group was created for final elaboration of the suggested projects.
I believe that just by establishing the contact with the working group the organs of state power would have a real opportunity to listen to concrete propositions concerning the improvement of legislation in the sphere of protection of citizens rights. Well, would the state use this opportunity?
4 August 2005