Ukraine's court system: the Court of General Jurisdiction

by Roman Woronowycz
Kyiv Press Bureau

The Court of General Jurisdiction (General Court), at the top of which stands the Supreme Court, handles criminal, civil and administrative matters in Ukraine. It consists of more than 800 raion (city and district) courts and 27 oblast courts (which includes separate courts for Kyiv and for Sevastopol). Although Ukraine's Verkhovna Rada has passed many laws on judicial reform, few have been implemented, particularly with regard to the General Court.

As the American Bar Association's Central and Eastern European Law Initiative noted in 1996: "In Ukraine the judicial branch has developed more slowly than the executive and legislative branches. The primary reason for this delay has been the reluctance on the part of the government of Ukraine to supply sufficient resources for the effective operation of the judiciary."

The passage of the Constitution in June 1996 may finally propel reform forward. It calls for the development of a jury-based system in the General Court and for the absorption of the Arbitration Court into the General Court, which is part of the plan for streamlining the court system based on specialization and territoriality.

This is the third and final installment in The Weekly's series on Ukraine's court system.

KYIV - The district court in the Starokyivskiy raion of the city of Kyiv is located off the Khreschatyk, Kyiv's main thoroughfare, in an old building badly in need of a coat of paint.

The second-floor court offices are dimly lit and overcrowded. People loiter in the hallway or sit on worn benches waiting for their cases to be heard. The small courtroom is drab: a rostrum made of nondescript wood where the judges sit, two tables with chairs for the prosecutor and defendants, and about a dozen plank benches for witnesses and visitors. There are no visible flags, photos or national symbols.

But remodeling has finally begun. Workers slap paint onto the walls and ceiling as the work of the court continues, while people enter from outside through a rear entrance because scaffolding covers the front entrance, where the facade is undergoing a facelift.

The court system, too, is being revamped. Vasyl Bilousenko, director of the Department of Judicial Reform in the Supreme Court, says that with the adoption of the new Constitution the long-awaited restructuring of Ukraine's courts will begin - provided that money is made available.

The most dramatic and substantial change will be the development of a jury system. During the Soviet era, civil, administrative and criminal infractions were handled by a three-judge tribunal along with two people's witnesses. Today only the judges remain at the raion level, although the oblast courts still use people's witnesses.

However, the new Constitution dictates that a jury option should be made available to defendants.

"We debated the issue of a jury system for a long time," explained Mr. Bilousenko. "We even had U.S. legal experts speak with us. They told us that juries often make decisions based on emotion rather than the law. But our Constitution calls for a partial jury system, and it shall be that way."

Ukraine's General Court now will give criminals accused of major crimes the choice of a jury trial or trial by a judicial tribunal. The jury system will be modeled after the French system. A judge will preside over the trial with six jurors present. The judge and the jurors will then render judgment after discussion of the case and a simple majority vote behind closed doors. "We feel this option is simpler and more efficient," said Mr. Bilousenko.

In the future the General Court also will accept guilty pleas by the defendant. In the past, trials were conducted even after the accused pleaded guilty, even though findings of innocence were rare, whether the defendant entered a plea or not. "Today we still go through the process," said Mr. Bilousenko, "but why should we knock down walls when the door is open?" About 60 percent of defendants in Ukraine plead guilty before the court.

However, the courts will not be allowed to accept plea bargains, as is widely done in the United States, where the defense counsel, on behalf of the defendant, can make deals to plead guilty to lesser offenses to get lenient sentences. Judges in the U.S. use the plea bargain to move cases along and keep their dockets under control. Ukrainian judges will not have that option.

With the sharp rise in crime that has come with a more open society, the court's case load will continue to increase. Today this is a major concern for those working to restructure the court system. The largest impediment, as always, is money.

The lack of money also will dictate how the streamlining of the court system will take place. Although the end result will be a more efficient judiciary, money is needed up front to consolidate the Arbitration Court into the General Court, which is mandated by the Constitution. "To do this properly we would need another 800 raion judges, 27 additional oblast judges and an additional collegium in the Supreme Court," said Mr. Bilousenko.

"Because it is cost-prohibitive with our economic situation today, the administrative system will be absorbed within the current General Court system as is. But this will cause a shortage of judges."

When the money is finally found, the Arbitration Court of Ukraine will become the Commercial Court. It will remain the court of commercial transactions with the expanded responsibility of ruling on complaints by citizens regarding improprieties by government administrative officers and bureaucrats. Appeals will be handled by a Higher Commercial Court, with final appeals going to the newly created Commercial Collegium in the Supreme Court. The new collegium will bring the number of such bodies in the Supreme Court to four.

Today the Supreme Court consists of the civil, criminal and military collegiums. Each collegium consists of Supreme Court judges who specialize in that area of the law. The civil collegium has 30 members, the criminal 43 and the military 10 (currently there are some vacant positions). In all, the Supreme Court consists of 85 judges, all of whom are members of the Supreme Court Plenary Assembly.

The Plenary Assembly is the highest judicial ruling body in the land on civil, criminal and military law. It reviews only those cases handed up from the collegium, and decisions are made by a majority vote after debate by the full body. Cases that are to be handled by the Plenary Assembly are first re-investigated and considered by two or three judges assigned to investigate the matter by the chairman. Collegiums receive cases from the oblast courts after recommendation for review by either the Procurator General's Office or the chairman of the Supreme Court.

The court that handles the brunt of civil and criminal complaints is the raion court. Raion courts are found in all the administrative centers of Ukraine. Judges are responsible for their own dockets, which are assigned by a geographic division of the raion among the judges. Judges hear civil, administrative and most criminal cases.

A criminal matter comes before a judge after it has been investigated by the Ministry of Internal Affairs and the Procurator General's Office. A representative of the Procurator's Office must be present at a trial. The defendant has the option of having defense counsel, which occurs in about half the cases.

There are cases when defense counsel is mandatory and assigned by the court: when the accused is under age; or does not understand the language (Ukrainian or Russian); or has a disability; or if one among several defendants has already obtained legal counsel.

When serious criminal charges (where a sentence of 10 years or more could be handed down) are leveled at a defendant, he is tried by the oblast court and assigned defense counsel. Currently the defendant is still tried by a three-judge tribunal and two people's witnesses, although soon the option of a jury will be available.

The raion courts handle civil matters, with certain exceptions, including inter-confessional religious disagreements, which fall under the jurisdiction of the oblast court.

Generally, lawyers need not be present at civil affairs and judges encourage that issues be settled out of court. Courts hold consultation hours when the public is allowed access to judges to confer and consult on civil issues. Although a judge is not allowed to give his opinion of the outcome of a case, he can review documents and give procedural advice.

Judge Tatiana Kozur, chairperson of the Starokyivskiy Raion Court in Kyiv, agreed that this is where the judges are most susceptible to bribes. "Yes, there is the opportunity to cut a deal during consultation. But the judges are picked because of their high moral and ethical standards, and we believe they continue to act in such a manner. If they are found to take bribes, they are dismissed," said Judge Kozur.

The raion court handles administrative complaints also. These are lesser legal matters in which there is usually no harm done to another person: prostitution, minor hooliganism, public drunkenness, unruly behavior, etc.

Parties in criminal or civil matters have the ability to file appeals on judgments rendered by the raion courts to the oblast court. In civil matters, the appealing party has seven days to submit all relevant documents; in criminal matters 10 days are allowed.

The oblast court's responsibility is to review matters on appeal from the raion courts for their legal and procedural soundness. Oblast judges can abandon the verdict of the lower court and return the case for retrial, they can uphold the verdict, or they can change the verdict. The court cannot however, hand down a harsher ruling). "Decisions are not often changed. There have to be unusual circumstances," said Judge Kozur.

In 1996 only four outcomes were changed in the more than 3,000 civil and criminal cases heard in the Starokyivskiy Raion Court.

The oblast court hears criminal complaints of the first instance in serious crimes as well, which includes murder, burglary, rape and treason, among other charges.

Decisions by oblast judges are subject to review by an oblast court oversight review board. The Oblast Procurator's Office or the chairman of the oblast court can ask that a matter go to the board for review, which puts much authority in the hands of the two bodies.

The Supreme Court is considering a change in the appeals process away from a system of cassation to give oblast level judges the ability to do more than simply review procedural and legal matters, according to Mr. Bilousenko. It would like to give judges the authority to hear additional testimony on appeal with original and other witnesses, and to allow judges to hand down their own rulings, even ones harsher than the lower court's original decision, while still allowing them to uphold judgments and return cases to the raion court.

Cases reach the Supreme Court only on recommendation of either the Procurator General's Office or the chairman of the Supreme Court. Because this puts too much power in their hands, according to Mr. Bilousenko, the reform envisaged for the court would create a board of second cassation. This would consist of three Supreme Court judges assigned to review applications for appeal and decide whether a basis for review exists. Appeals accepted by the board would be assigned to the proper collegium and begin their journey through the Supreme Court process.

Mr. Bilousenko says that, in the long term, Ukraine would also like to establish a patent court and a monopoly court, but that requires one thing: money.

Copyright © The Ukrainian Weekly, March 30, 1997, No. 13, Vol. LXV

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