On December 13, 2017 in the Donetsk news agency there was held a briefing by Yulia Bezruchenko, the First Deputy Chairman of the Supreme Court on the results of the work of the judicial system of the Donetsk People's Republic as of December 2017.
Summarizing the work of the First Deputy Chairman of the Supreme Court of the Donetsk People's Republic, it should be noted that the work was carried out in order to ensure access to justice in strict accordance with the law and the work plan for 2017. All the activities envisaged by the work plan were carried out in a qualitative and timely manner.
Introduction
Everyone remembers that according to the Decree No.40-2 of the Council of Ministers of the Donetsk People's Republic of the Donetsk People's Republic dd. October 22, 2014, a judicial system of the Donetsk People's Republic was established.
I would like to draw special attention to the fact that judges of the Donetsk People's Republic are appointed not by the decrees of the Chairman of the Supreme Court of the Donetsk People's Republic, but by the Decrees of the Head of the Donetsk People's Republic.
In 2015, by the Decrees No.02, 03 of the Head of the Donetsk People's Republic dd. January 9, 2015 there were appointed 44 judges: 10 judges to the Supreme Court of the Donetsk People's Republic, 2 judges to the Arbitration Court of the Donetsk People's Republic and 32 judges to the courts of general jurisdiction of the Donetsk People's Republic.
In 2016, by the Decree No.71 of the Head of the Donetsk People's Republic dd. March 17, 2016, there were appointed 35 judges, among them: 14 judges to the Supreme Court of the Donetsk People's Republic; 3 judges to the specialized courts of the Donetsk People's Republic; and 18 judges to the courts of general jurisdiction of the Donetsk People's Republic.
By the beginning of 2017, 72 judges have been actually performing their duties, among them: 24 judges in the Supreme Court of the Donetsk People's Republic, 5 judges in the specialized courts of the Donetsk People's Republic, and 43 judges in courts of general jurisdiction of the Donetsk People's Republic.
On April 29, 2017, a meeting of the personnel commission took place, according to the results of which by the Decree No.119 of the Head of the Donetsk People's Republic dd. May 19, 2017 "On the appointment of judges" there were appointed 24 judges, of which: none to the Supreme Court of the Donetsk People's Republic, 1 judge to the specialized courts of Donetsk Of the People's Republic, and 23 judges to the courts of general jurisdiction of the Donetsk People's Republic.
As of the end of 2017, out of 96 judges of the Donetsk People's Republic, 3 judges have been terminated before time by the Decrees of the Head of the Donetsk People's Republic. Moreover, 2 judges applied for pre-term termination of their judge's powers.
The actual number of judges for today constitutes 92 judges, including: 24 judges of the Supreme Court of the Donetsk People's Republic, 5 judges of the specialized courts of the Donetsk People's Republic, and 63 judges of the courts of general jurisdiction of the Donetsk People's Republic.
The three-years term of office of a number of judges of judges of the Donetsk People's Republic, for which they appointed by the Decrees No.02 and No.03 of the Head of the Donetsk People's Republic dd. January 9, 2015, expires in 2018.
The process of forming the judiciary is characterized by a two-way movement: we are not only replenished with new personnel, but we are also cleared of judges who have violated the law or violated the Code of Judicial Ethics, and also did not justify public confidence. Consideration of the issues of bringing judges to disciplinary responsibility is entrusted to the Presidium of the Supreme Court of the Donetsk People's Republic.
Despite the new appointments, judges of the Donetsk People's Republic have a very high work load, which in its turn indicates a constant growth of public confidence in the judicial system: it is in the courts that citizens of the Republic hope to find protection for their violated rights and interests.
In this regard, an intensified work is being carried out to select qualified personnel to replenish the judiciary.
Thus, on October 24, 2017, October 27, 2017 and November 28, 2017 there were held meetings of the commission for conducting a preliminary interview with candidates enrolled in the reserve for vacant posts of judges in the courts of the Donetsk People's Republic in order to verify the level of their theoretical knowledge of the legislation of the Donetsk People's Republic.
We hope that in the near future the Decree on appointing new judges of the Donetsk People's Republic will be signed by Alexander Vladimirovich Zakharchenko, the Head of the Donetsk People's Republic, who is interested in our problems and supports us in this direction.
Statistics
According to operational statistics, the following number of cases were registered and have been already considered by the courts of the Donetsk People's Republic:
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|
|
||||||
|
Total registered |
Total considered |
Pending |
Number of judges |
Average monthly workload per judge |
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|
registration of cases |
consideration of cases |
||||||
|
1 |
2 |
3 |
4 |
5 |
6 |
||
|
in 2015 |
58702 |
52952 |
5713 |
45 |
118,59 |
106,97 |
|
|
in 2016 |
81525 |
72614 |
8877 |
78 |
95,02 |
84,63 |
|
|
as of11/30/2017 |
83063 |
69748 |
13315 |
94 |
80,33 |
67,45 |
|
For 11 months of 2017 the total amount of the court fee paid by the parties in the case, participants in the trial, received in accordance with receipts for payment to the courts of the Donetsk People's Republic, amounts to 17,220,205 Rub. The total amount of the court fee awarded to the court judgments of the courts of the Donetsk People's Republic is 4,462,962 Rub.
The amount of the penal sanctions, determined to be recovered by court decisions of the courts of general jurisdiction of the Donetsk People's Republic, is 12,353,321 Rub., including 3,649,443 Rub paid voluntarily.
The Supreme Court of the Donetsk People's Republic constantly conducts work aimed at raising the level of theoretical knowledge and practical skills of judges.
To this end seminars are held with judges of courts of general jurisdiction and specialized courts, judges of the Supreme Court of the Donetsk People's Republic, individual methodological assistance to judges is provided. Particular attention is paid to young judges who do not have experience in judging.
In 2017, 11 seminars were held with judges of the Donetsk People's Republic.
In 2018, 12 seminars with judges of the Donetsk People's Republic are scheduled, of which 4 seminars with judges of courts of general jurisdiction of the Donetsk People's Republic, 4 seminars with judges of the Arbitration Court of the Donetsk People's Republic, and 4 seminars with judges of the Military Court of the Donetsk People's Republic.
Despite the fact that the Law of the Donetsk People's Republic "On the bodies of the judicial community" has not yet been adopted, it should be noted that, in August 2017, a meeting of judges of courts of general jurisdiction and specialized courts of the Donetsk People's Republic was held. Following this meeting a resolution was adopted "On the results of the work of the Supreme Court, courts of general jurisdiction and specialized courts of the Donetsk People's Republic for the first half of 2017 and tasks for the second half of 2017".
Apart from this, in 2018, based on the work of the judicial system of the Donetsk People's Republic for 2017 and for the first half of 2018, 2 meetings of judges of the Donetsk People's Republic are scheduled.
In 2018, there are scheduled 6 meetings of the Plenum of the Supreme Court of the Donetsk People's Republic, and 21 meetings of the Presidium of the Supreme Court of the Donetsk People's Republic.
Extremism
The Supreme Court of the Donetsk People's Republic is actively carrying out activities aimed at protection of the fundamentals of the constitutional order, human and civil rights and freedoms, ensuring the integrity and national security of the state, identifying and eliminating the causes and conditions conducive to manifestations of extremism, as well as preventing, detecting, suppressing extremist activity and liquidation of its consequences.
Thus, for three years of the work of the judicial system of the Donetsk People's Republic, the panel of judges of the Civil Chamber of the Supreme Court of the Donetsk People's Republic has passed 23 decisions on extremism, including:
in 2015 – 1 decision;
in 2016 – 6 decisions;
in 2017 – 16 decisions.
The Plenum of the Supreme Court
During the existence of the judicial system of the Donetsk People's Republic, 7 meetings of the Plenum of the Supreme Court of the Donetsk People's Republic have been held, 35 resolutions of the Plenum of the Supreme Court of the Donetsk People's Republic have been affirmed (posted on the official website of the Supreme Court of the Donetsk People's Republic http://supcourt-dnr.su/).
I would like to focus on the most urgent questions that became the subject of consideration by the Plenum of the Supreme Court of the Donetsk People's Republic.
Thus, first of all I would like to pay special attention to the Resolution of the Plenum "On Some Issues of Applying the Constitution of the Donetsk People's Republic in the Administration of Justice", for the regulation on the supreme legal force and direct action of the Constitution, provided for in the Law No.72-INS of the Donetsk People's Republic On the Normative Legal Acts, dd. 08/07/2015, means that all constitutional norms have supremacy over laws and by-laws, as a result of which courts while considering specific cases are obliged to be guided by the Constitution of the Donetsk People's Republic.
It should be borne in mind that a court applying the Constitution as an act of direct action cannot recognize as unconstitutional laws or other normative legal acts adopted by the People's Council or the Council of Ministers of the Donetsk People's Republic, as well as decrees or resolutions of the Head of the Donetsk People's Republic.
Proceeding from the provisions of Art. 20, part 1 of Art. 33 of the Constitution of the Donetsk People's Republic, it should be borne in mind that absence of registration, which replaced the institution of propiska (residence permit), in itself cannot serve as a basis for restricting human rights and freedoms, including the right to housing.
Art. 39 of the Constitution of the Donetsk People's Republic guarantees to everyone the judicial protection of their rights and freedoms. Decisions and actions (or omission) of public authorities, local governments, public associations and officials may be appealed in court, and therefore the court shall not refuse to accept or examine the complaint on the grounds provided by law, which restricts this right.
During a trial, the Constitutionally guaranteed right of everyone to receive qualified legal assistance must be strictly observed. In view of this constitutional provision, court is obliged to ensure the participation of a defense counsel both in cases when the accused expresses such a desire and in cases when the participation of counsel is mandatory by law. In cases provided for by law, legal aid is provided free of charge (part 1, Art. 41 of the Constitution of the Donetsk People's Republic).
However, I would like to note that citizens of the Donetsk People's Republic as well as citizens of any other civilized democratic state have not only rights, but also duties that must be conscientiously carried out in accordance with the current procedural legislation.
Moreover, we should pay attention to the fact that the judicial system has reached a new level, as evidenced by the adopted Resolution of the Plenum "On approving the Regulation on the Scientific Advisory Council under the Supreme Court of the Donetsk People's Republic and determination of its personal composition."
The Scientific Advisory Council under the Supreme Court, which is an advisory body, was established with the aim of developing scientifically sound recommendations on problematic issues that cause difficulties in the law enforcement practice of courts, operates on the basis of the Provisional Regulations on the Judicial System of the Donetsk People's Republic approved by the Decree No. 40-2 of the Council of Ministers of the Donetsk People's Republic dd. 10/22/2014 and the Regulation on the Scientific Advisory Council under the Supreme Court of the Donetsk People's Republic.
Its tasks include the development of scientifically sound recommendations on fundamental issues of judicial practice, as well as solutions on improving the legislation. The Scientific Advisory Council under the Supreme Court of the Donetsk People's Republic is called upon to help strengthen the rule of law in the administration of justice.
The Scientific Advisory Council studies issues arising in judicial activities and develops appropriate recommendations:
1) on draft resolutions of the Plenum of the Supreme Court of the Donetsk People's Republic, containing explanations on the application of legislation on the basis of generalizations of judicial practice and judicial statistics;
2) on the draft laws that the Supreme Court of the Donetsk People's Republic develops as a subject of legislative initiative, as well as on draft laws to which the Supreme Court of the Donetsk People's Republic prepares proposals, comments and amendments drawn up in the form of relevant conclusions;
3) on draft instructions, regulations, information and explanatory letters, methodological recommendations and other documents developed by the Supreme Court of the Donetsk People's Republic;
4) on legal issues arising in judicial practice.
The Chairman of the Scientific Advisory Board is the Chairman of the Supreme Court of the Donetsk People's Republic, co-chaired by the First Deputy Chairman of the Supreme Court of the Donetsk People's Republic, the Deputy Chairmen of the Supreme Court - the Heads of the Chambers of the Supreme Court of the Donetsk People's Republic.
The scientific secretary of the Scientific Advisory Council is the secretary of the Plenum of the Supreme Court of the Donetsk People's Republic, a judge of the Supreme Court of the Donetsk People's Republic.
It should be noted that the Scientific Advisory Council besides the judges of the Supreme Court of the Donetsk People's Republic includes representatives of the Donetsk Academy of Management and Public Service under the Head of the Donetsk People's Republic, Donetsk National University, Donetsk Academy of Internal Affairs, as well as representatives of the Donbas Law Academy, of whom there is 1 doctor of law, 1 doctor of historical sciences, 14 associate professors, 23 candidates of legal sciences and 1 candidate of economic sciences.
In the Scientific Advisory Council, the Chairman of the Supreme Court of the Donetsk People's Republic forms the sections on the branches of law, headed by the co-chairmen conducting work on the preparation of scientifically grounded conclusions with their further discussion on the meeting of the Scientific Advisory Council.
In sections of the Scientific Advisory Council, subsections, led by the head of a subsection, can be formed. Subsections of the Scientific Advisory Council are formed according to brunches or sub-brunches of law.
The Scientific Advisory Council has the following functioning sections:
1. Constitutional Section;
2. Civil Law Section;
3. The Criminal Law Section;
3.1. Criminal Law Subsection;
3.2. Administrative Subsection;
4. The Arbitration Section;
5. Section on Servicemen Affairs;
6. Section of the Judiciary and the Status of Judges.
Plenary sessions of the Scientific Advisory Council and its sections, and sub-sections are held as and when necessary. Within 5 working days prior to the plenary session of the Scientific Advisory Council, the secretary shall circulate to the members of the Scientific Advisory Council an agenda and materials to be discussed.
To participate in the meetings of the Scientific Advisory Council, its sections, and sub-sections, non-member experts from various branches of knowledge can be involved.
The results of the work of the Scientific Advisory Board are being published in the information and telecommunication network "Internet" on the official website of the Supreme Court of the Donetsk People's Republic.
The Monitoring and Law Enforcement Practice Office of the Judicial Department under the Supreme Court of the Donetsk People's Republic
In pursuance of the requirements of Art. 17 of the Provisional Regulation on the Judicial System of the Donetsk People's Republic adopted by the Resolution No.40-2 of the Council of Ministers of the Donetsk People's Republic dd. October 22, 2014 "On the Judicial System", the Monitoring and Law Enforcement Practice Office of the Judicial Department under the Supreme Court of the Donetsk People's Republic, accountable and controlled by the First Deputy Chairman of the Supreme Court of the Donetsk People's Republic, in 2017, prepared 6 analyzes, 3 generalizations of judicial practice, as well as 2 references on the results of the study of separate categories of civil cases, namely:
1. Analysis of the reasons for cancelling and quashing decisions in civil cases in cassational and supervisory procedures for 2016;
2. Analysis of the reasons for cancelling and quashing decisions in civil cases in cassational and supervisory procedures for the first half of 2017;
3. Analysis of the reasons for cancelling and quashing decisions in criminal cases in cassational and supervisory procedures for 2016;
4. Analysis of the reasons for cancelling and quashing decisions in criminal cases in cassational and supervisory procedures for the first half of 2017;
5. Analysis of the reasons for cancelling and quashing decisions of the Arbitration Court of the Donetsk People's Republic in cassational and supervisory procedures by the Supreme Court of the People's Republic of Donetsk in arbitration cases for 2016;
6. Analysis of the reasons for cancelling and quashing decisions in arbitration cases in cassational and supervisory procedures for the first half of 2017;
7. Generalization of judicial practice in criminal cases regarding theft, blackmailing, and illegal circulation of arms, ammunition, explosives and explosive devices, negligent possession of firearms;
8. Generalization of judicial practice in criminal cases regarding relief from criminal responsibility;
9. Generalization of the judicial practice in civil cases regarding establishment of facts of legal significance for 2016;
10. Analytical information on the results of the generalization of judicial practice in cases regarding recovery of alimony, changes in the amount of alimony, alimony debt recovery;
11. Reference on the results of the study of civil cases regarding protection of consumers' rights.
Moreover, based on the results of monitoring of court decisions and following the results of meetings of interdepartmental working groups discussing problematic issues of the application of the current legislation, there were issued 7 information letters which were sent to the courts of the Donetsk People's Republic for their application in the work:
- "On clarifying certain issues arising in the resolution of disputes regarding compensation for moral harm caused by violation of consumers’ rights" dd. November 28, 2017 No.02-21/17991/17g;
- "On some issues arising in the consideration of cases regarding recovery of the amount of debt taking into account the inflation index" dd. December 6, 2017 No.02-22/4009/17g;
- "On some issues arising in the consideration of cases regarding recovery of the amount of debt taking into account the inflation index" dd. December 6, 2017 No.02-21/18607/17g;
- "On clarifying issues arising during the consideration of proceedings regarding administrative offenses provided for in part 4 of Art. 184, Art. 185-4, part 2 of Art. 185-6, Art. 185-8, Art. 185-11 of the Ukrainian Code on Administrative Offenses, instituted by employees of the prosecutor's office of the Donetsk People's Republic, dd. February 10, 2017 No.07-22/1764/17g;
- "On introducing amendments to the information letter of the Chairman of the Supreme Court of the Donetsk People's Republic dd. January 4, 2016 No.02.1-12/8/16u "On the application by the courts of the Donetsk People's Republic of legislation when considering and resolving issues related to the execution of the sentence" dd. May 16, 2017 No.02-21/6459/17g;
- "On clarifying issues related to the turnaround in the execution of judgments regarding civil cases" dd. May 24, 2017 No.02-21/6945/17g;
- "On determining the jurisdiction of cases regarding administrative offenses provided for in Article 188-41 of the Ukrainian Code on Administrative Offenses dd. June 14, 2017 No.02-21/8168/17g.
Letters (cancelling, changing previously sent information letters):
- "On invalidating the information letter of the Chairman of the Supreme Court of the Donetsk People's Republic No.02-20/10913/16g dd. December 13,2016 "On the application by courts of legislation in the consideration of cases regarding recovery of electric utility indebtness" dd. November 20, 2017 No.02-21/17347/17;
- "On clarifying issues related to the sending of executive documents (writs of execution, judicial orders) for execution" dd. November 22, 2017 No.02-21/17563/17g;
- "On invalidating the information letter of the Chairman of the Supreme Court of the Donetsk People's Republic No.01-17/540/15 dd. June 2, 2015 "On the Procedure for Administration of Citizens’ Appeals against Decisions, Actions or Omissions of Public Authorities, Legal Entities, and Officials in the Field of Management Activities" dd. November 28, 2017 No.02-21/17992/17g.
Interdepartmental working groups
It should be noted that according to the Provisional Regulation "On the Judicial System" adopted by the Decree No.40-2 of the Council of Ministers of the Donetsk People's Republic dd. October 22, 2014, the First Deputy Chairman of the Supreme Court follows the instructions of the Chairman of the Supreme Court of the Donetsk People's Republic, and exercises the rights and duties of the Chairman of the Supreme Court for the period of his absence, and also performs other functions determined by the Chairman of the Supreme Court.
In the fulfilment of the stated duties, under the head of the First Deputy Chairman of the Supreme Court of the Donetsk People's Republic, there were drawn up drafts of joint orders on the creation of interdepartmental working groups which include both representatives of the Supreme Court and various ministries, departments and institutions of the Donetsk People's Republic.
Moreover, by joint efforts of the Supreme Court of the Donetsk People's Republic, various ministries, departments and institutions of the Donetsk People's Republic there have been created and currently operate 6 interdepartmental working groups, 2 of which are headed by the First Deputy Chairman of the Supreme Court of the Donetsk People's Republic.
For the reporting period, 10 meetings were held within the framework of the interdepartmental group on the joint development of an article-by-article commentary on the Penal Code of the Donetsk People's Republic.
The worked comments to 9 chapters of the Criminal Code of the Donetsk People's Republic (Chapters 4, 6, 14, 15, 18, 20, 26, 31, 33) were sent to the courts of general jurisdiction, to the Military Court, to judges of the Supreme Court, to the participants of the interdepartmental working group for application in their work.
There are 13 chapters of the Criminal Code of the Donetsk People's Republic (Chapters 1, 3, 5, 7, 8, 9, 10, 19, 21, 27, 28, 29, 30) in the works.
Apart from this, draft commentaries to Chapters 23, 24, 34 of the Criminal Code of the Donetsk People's Republic are ready for discussion at the round table meeting, which will be held on December 18, 2017.
The themes of the round tables that took place within the framework of the activities of the interdepartmental working group on the uniform application of legislation and the rule of law in resolving issues arising in joint activities in implementing the legislative acts of the Donetsk People's Republic, as well as legislative acts of Ukraine (21 meetings in all) are as follows:
1. On the social protection of war veterans and the avoidance of ambiguous interpretation of regulations;
2. On recovery of court fees from state-owned enterprises to the state budget;
3. On rendering assistance in the allocation of offices for the work of lawyers in the administrative buildings of the courts, the arrangement of legal consultation offices in the premises of the courts of the Donetsk People's Republic, as well as on the issue of the revocation of the Joint Instruction of the Supreme Court of the Donetsk People's Republic and the General Prosecutor's Office of the Donetsk People's Republic "On the ensuring the right to defence in criminal proceedings";
4. On questions of clarifying the practice of considering civil cases related to the subsequent appointment and payment of insurance payments;
5. On the legal validity and procedure for the recovery of court costs incurred in the production of forensic examinations in criminal cases and in cases of administrative violations;
6. On disputes related to the recognition of property rights under procedure of inheritance;
7. On the problematic issues in applying pension legislation;
8. On problematic issues related to the appointment of defence counsel in criminal cases;
9. On problematic issues arising when requests are sent by the State Registration Chamber of the Ministry of Justice of the Donetsk People's Republic to provide detailed information on the court decisions (on the validity of their adoption;
10. On the use of inflation indices in the consideration of civil cases on labour disputes, as well as on the procedure for calculating indexation and per annum when considering civil cases regarding recovery of maintenance arrears;
11. On the issues of publication at the official site of the Donetsk People's Republic of information on the passed decisions on claims of the State Property Fund of the Donetsk People's Republic regarding recognizing the ownership of the state to ownerless immovable property where the defendants are economic entities registered and located in a territory outside the control of the Donetsk People's Republic;
12. On issues arising in connection with the entry into force of absentia decisions delivered by courts of the Donetsk People's Republic regarding the deprivation of parental rights in respect of young children;
13. On issues of citizens' appeals with claims against enterprises of the fuel and energy complex, related to the sphere of management of the Ministry of Coal and Energy of the Donetsk People's Republic, regarding liability related to household fuel supply, including for the past periods of 2014-2016;
14. On issues of drafting the Family Code of the Donetsk People's Republic.
It should be noted that at the meetings of the interdepartmental working groups the problematic issues of the application of the current legislation are being discussed, following the discussion there are being worked out drafts of information letters of the Chairman of the Supreme Court of the Donetsk People's Republic which are brought to the attention of courts of general jurisdiction and specialized courts of the Donetsk People's Republic with the aim of bringing judicial practice to uniformity. They are also published on the official website of the Supreme Court of the Donetsk People's Republic http://supcourt-dnr.su/.
Conclusion
Summing up the work of the judicial system of the Donetsk People's Republic as of December 2017, one should not forget that the implementation of the law, which obliges courts to hear cases within a reasonable time is one of the main tasks, and violation of it begs the role of the court as a judicial authority, reduces the relevance of the principle of inevitability of punishment.
Protection of rights and freedoms is exercised by all state bodies, but the judicial power plays a special role here. These fundamental provisions oblige the judiciary community of the Republic to strictly observe the laws regulating the law-enforcement practice of adjudicating justice and considering cases in reasonable procedural terms.
Decisions of the Plenum of the Supreme Court of the Donetsk People's Republic, analyzes and generalizations of judicial practice are aimed at increasing the stability of civil circulation, protecting the rights and legitimate interests of citizens, forming uniform practice of application of legislation in courts of general jurisdiction and specialized courts, creating an impartial, favourable environment and raising the level of legal certainty in the Donetsk People's Republic. It should be noted that in 2017 in this direction there was done fruitful and high-quality work of the judicial system of the Donetsk People's Republic.
I would like to draw your attention to the need to preserve the purity of the judiciary and to increase confidence in the court as the main defender of the rights of any person – regardless of income, age, nationality, official position and citizenship.
Basic human rights and freedoms are inalienable and belong to everyone from birth. Rights and freedoms of a person and citizen are directly acting, they determine the meaning, content and application of laws, the activities of legislative and executive power, local government and are secured by justice.
The activities of courts and their decisions are directly related to the fate of millions of people settling disputes in various spheres of life. Therefore, the requests of citizens to the judicial system, to the work of judges, to their ethics and moral appearance, of course, are very high. And it is absolutely clear that they have to fully comply with them.