An amazing article 6 of the Constitution establishes that the state power in Ukraine acts only on the basis of its division into the judicial, legislative and executive branches.
This means that the absence or incapacity of any of the above three branches of the state power (for example, the judiciary one) leads to the illegitimacy (illegality) of the activities of other branches of the state power. This also means the complete absence of the state authority, because one or two branches of the state power (in the absence of the third branch) incompetent and unable to represent the entire state power.
However, in today's reality, it is impossible to talk about the presence of all three branches of the state power in Ukraine at the same time.
The legislative branch has been living for a long time on a leash. The mentioned branch usually fills the media space with scandals and squabbles as well as struggle for the meatier pieces. It sounds familiar, doesn`t it? I, for one, have already seen something like that in the zoo.
The judiciary, as an institution of power, is completely self-destructed and practically transferred all its authority to the executive power.
A semblance of a balance among the above-mentioned institutions of power was observed during the administration of the second President of Ukraine.
However, beginning from 2004, the judiciary, that has been showing the preference to material benefits for a long time, started losing its independence and sent away "the reins", which began falling into skillful hands of businessmen or small crooks, elevating them in a moment to the ranks of "generals" or "oligarchs".
In turn, the courts, on the one hand, began to resemble a rugby ball that is being torn into pieces by various business structures and government bodies. On the other hand, the courts turned to auctions, on which wins the one who pays more or has more powerful friends, not the one who is right.
It is surprising, but the Supreme Court of Ukraine has been working in a fairly effective manner for a good while, trying to correct ridiculous judgments of lower courts. However the mentioned institution has not affected the lower courts or has not tried to perform it.
From 2010 onwards the executive branch established a tight control over the legislative branch and took "the reins" of management over the judiciary. I dare to admit that the mentioned changes brought many positive results.
The situation with the judiciary is not so critical as pathoanatomical, as the smell of dead and decaying judicial power is picked up by every person who has already faced the judiciary.
Do not get me wrong, the judicial system has remained the same: dirty and dilapidated court buildings without toilets, plenty of illiterate, impunity and irresponsible judges in mantles, and without them, assistants of judges, who have exalted themselves to the rank of gods, boors in the judicial chancelleries - all that have remained.
The judiciary has just ceased to be a branch of the state power. It has ceased to be an independent branch and stopped serving people of Ukraine.
The judiciary system has been transformed into a group of ordinary people who sit in public offices and receive a salary from our taxes, who use the authority given to them by law to achieve their personal objectives, under the condition of fulfillment of certain indications from certain people.
Thus, nowadays we have a paradoxical situation, - the judicial system, which gobbles up people's money and fate, exists, but there is no judiciary.
Strange Russian tradition, as Margadon has said in the "Love formula": “the keys are given to the locks which don’t exist”.
Herewith, there are more than enough visible signs of the deterioration of the judiciary. And it is strange that our people are still tolerate with this situation and do not put an end to this. After all, the decay of the judicial branch has led to the decay of all other institutions of power (confidence of scoundrels in their impunity is the main cause of corruption, theft and poverty).
None, even the most wonderful law (every new authorities offered many of such laws) may change the situation, if its implementation is carried out sidedly. Corruption, theft and poverty will always prosper, while the courts are leading a dog’s life.
Maybe I may seem to be banal, but the solution of the courts problem is rather simple: election of chief judges, European wages, progressive benefits and credits, strict control and severe punishment. It is not so great expense, because the state’s profit from the activities of high-quality and independent courts is estimated as being in hundreds or even thousands times higher.
But who else, except for an ordinary peasant, worker or entrepreneur, is interested in an independent court? The question is rhetorical.
I do not want to criticize all judges without exception, no!
I do know and I am convinced from personal experience that there are many competent, honest and responsible judges, who are admired because of their honesty, way of thinking and their ability to pursue the matters.
But I have got the impression that such judges are in the minority, and they are not able to change the existing system.
As a result, what is the present situation?
The level of the judges’ irresponsibility and indifference is incredibly high. At the same time the level of the judges’ literacy is incredibly low. Many judges have ceased to study the cases at all. While considering your case, you may be surprised to find out that the judge has not even studied your case. It is not interesting for him.
Moreover, during the consideration of your court case, the judge may be busy with reading another court case, which is interesting for him and has no relation to your case (especially judges of judicial panel). They do not need to study your case. The decision to deny your demands has been already accepted without a proper study of your case.
An old guard of the Soviet trained and educated judges slightly saves the situation. To tell the truth, there is a desire to visit the hearings of some of these judges as an ordinary listener.
The result of the irresponsibility of judges is that fledgling young lawyers do not want to learn Law. They already know that their knowledge is useless and nobody is interested in such knowledge.
They have already made the decision that only money solves all the problems. Due to this fact they seek to gain useful contacts, instead of knowledge.
The Superior Courts of Ukraine have become like gods. Do not consider it to be a comparison, it’s an absolutely accurate description.
After all, only the gods are so unattainable for а person.
The waiting list for the proceedings in the Superior Administrative Court is for 2-3 years to come (people get old and die in these queues).
Nowadays the Superior specialized court is also unreachable. Even if you file hundreds of applications with a request to consider your case only with your participation, there is no guarantee that the court will summon you. Moreover the court may decline your demands without your participation in the hearing.
Even more the Superior specialized court of Ukraine has become a unique organization that has the right to interpret law on its own discretion. These judges are gods, aren’t they?!
They have a divine pretext - the paragraph 4 of the Article 328 of the Civil Procedure Code, which allows the judge of the Superior specialized court of Ukraine to strike a cassation case, if your arguments are unreasonable and do not require inspection (an interesting phrase about nothing).
Considering our experience, we may notice that this norm is being enjoyed to its fullest by judges. The number of the considered cassation appeals has decreased in several times over recent years.
The mentioned part of the law has not been changed. Only the judges have been changed and a new “divine” afflation has come.
At the same time, the judges of the Superior specialized court of Ukraine for some reasons forget about the paragraph 5 of the Article 328 of the Civil Procedural Code of Ukraine. In accordance with the mentioned provisions the application concerning a wrong use of substantive law or a violation of procedural law regardless of the validity of a complaint, is a basis for a cassation adjudgment, because the Superior specialized court of Ukraine has no right to inspect these violations before the cassation. In the past the Supreme Court knew and remembered it. Nowadays, the Superior specialized court of Ukraine, which replaced the Supreme Court, forgets about it. It is a very strange situation.
The Superior Commercial Court, on the one hand is doing things right, because this court allows you to participate in the adjudgment and considering of the case. On the other hand, this court nearly always refuses to meet your claims (it may be caused by the fact, that you are not "interesting" for them).
In addition to the mentioned, our legislators increased the amount of court fee for our citizens and continue doing it from year to year.
It is ridiculous, because incomes of the citizens have reduced while the court fees have increased. It seems that new court fees may be paid only by those, who can afford expensive restaurants and shops. For an ordinary citizen to pay a new court fee, is like to go to an expensive restaurant – it is unrealistic.
The increase of fees is not a small thing. Especially in situation, when the wage is not paid and you may enforce it only by action. You have already run out of money and in addition you need to pay court fees.
The payment of court fee does not guarantee that a judge will be interested in your case and will consider it in your favor (more like the opposite outcome is predictable).
The situation is also complicated by the increased court fee for an adjustment in appeal court and the Supreme Court (three times you shall pay a fee, but you may so far guess the result).
It is nearly impossible to soften the court for a deferment of the payment of fees. No matter that you are unemployed, a single mom with two or more children or on the verge of bankruptcy, etc. Even your death means nothing for the court!
Once I faced the situation, when in winter my client and her two minor children were thrown out by her husband (father of these children) on the street. They were left without means of support. Considering this fact, my client addressed the court of Solomenskiy district in Kiev with a request to delay the payment of the court fees. How do you think the court met her request? The court demanded to pay, but she was unable to pay. Due to this fact the court brought back the claim without consideration. The woman with her children was left to freeze on the street! Solids moral principles!
The result is that the state, through the creation of a material impossibility to pay court fees, inefficacy of their payment, as well as through the creation of a "divine" inaccessibility of the higher courts, fully fenced and cut off its citizens from courts (to call it like it is – the courts cut themselves from citizens).
At the same time, courts do their best not to compensate to the plaintiffs legal costs for lawyers and attorneys. There is a situation when courts are only for rich people. At the same time ordinary citizens have no money or no prospects.
Thus, we may establish the fact that today the judicial system exists as a state machine, but there is no judiciary that is capable to protect rights of citizens.
Going back to the beginning of the article, there is only a rhetorical question of legitimacy of the state authority and its existence at all.
Managing Partner of the Law Firm "FOX" Volodymyr Marinich