Warning weight

The cancellation of the decision does not prove the judge’s negligence, especially when the complaint is used as a means of pressure on him

Nobody is above making a mistake, including the disciplinary authorities, which should punish for them. At the same time, the High Council of Justice seems to be creating a new trend – not to take the functions of the highest authority and undertake the protection of gownsmen from complainants who try to press the Themis by appealing to the Council.

Improvements in practice

Coincidentally, two similar complaints of judges on the imposition of penalties on them were considered at a meeting on July 17. The fact is that both decisions were taken by the third disciplinary chamber of the HCJ and even in one day. In both cases, warnings were issued to the judges, but as it turns out then, it was a groundless decision.

If we recall that at the previous meeting, the Council abolished a similar penalty for another judge (although it was imposed by the second chamber, see p. 5), and in general, this is the 6th case in the recent times, then we can talk about a certain change in the practice of taking disciplinary measures against judges. This is primarily due to the fact that the HCJ is overruled with the following statement: not every mistake is caused by negligence, for which a judge may be punished.

At the same time, members of the collegiate authority became more thorough when it comes to the question of whether the filing of a complaint is about the intention of removing a judge from the consideration of the case or inciting him to take the necessary side in decision-making. In particular, is it not a manifestation of pressure when copies of appeals to different instances are attached to the procedural document as an argument?

By the way, the practice of demonstrating the power of the complaint was not born yesterday. Unfortunately, the HCJ did not oppose the spread of such methods. There are many reports on the various tools of interference with justice in the register, but as a rule, members of the Council did not see any grounds for them to take measures to ensure the credibility of justice. Perhaps now there will be an improvement. At least during the consideration of one of the complaints of July 17, members of the judiciary authority drew their attention to this fact as well.

 

Variations in definitions of the decisions

Thus, in the case of Olha Putrya from the Poltava District Court of the Poltava region, the TDC of the HCJ came to the conclusion that the plaintiff was deprived of access to the court on grounds not provided for by law. The judge returned the claim twice: for the first time to eliminate the shortcomings and the second time because of the applicant’s reluctance to do so.

In particular, the plaintiff was asked to indicate the circumstances on which he justifies his demands for the recovery of fees within an oral legal service agreement on registration of inheritance rights in the amount of almost UAH 4 million, and the evidences for each of them. In addition, an actual residence address of the defendant, a citizen of the Russian Federation, was not indicated, since according to the address bureau, he was never registered at the address specified in the claim.

However, the appellate court upheld the complaint, stating, in particular, that all circumstances of the conclusion of the oral agreement can be ascertained at a court hearing. Subsequently, O. Putrya launched the proceedings on this case, but was forced to withdraw, as the plaintiff complained about her to the Higher Qualification Commission of Judges.

In fact, the Disciplinary Chamber used the conclusion of the Court of Appeal to impose a disciplinary penalty. According to the judge, this fact was not enough. In addition, as O. Putrya noted, the decision of the TDC distorted the content of her decisions, because they did not contain requirements to provide written evidence exactly.

The speaker in the case, Vadim Belyanevich, agreed to this. However, he noted that the different evaluation of the content of the statement of claim cannot be grounds for the disciplinary responsibility of the judge. Moreover, the decision of the Chamber stated that O. Putrya allegedly demanded from the plaintiff to prove his attempts to pre-trial settlement of the dispute. Although, according to V. Belyanevich, there is no such a requirement in the decision.

He also drew attention to the fact that in the complaint addressed to the chairman of the court, the applicant emphasized that O. Putrya “preferred the defendant on the basis of his citizenship” and she protects a wealthy citizen of another state. Thus the chairman of the authority should let the SSU know about this fact, which “threatens national security”.

According to V. Belyanevich, in the case there are signs of pressure on the judge to eliminate it from consideration. In particular, this is evidenced by the complaint to the Head of the authority and a copy of the appeal to the HQJC attached to the application for withdrawal.

Given the absence of an intentional violation of the law, the deputy head of the HCJ proposed to cancel the TDC decision and close the proceedings. Since neither the complainant nor the judge came to the meeting, the members of the council quickly discussed and supported such a proposal.

 

Trick-or-treating?

Instead, Yuri Zaytsev from the Economic Court of the Odessa region arrived in Kiev together with the defender to gain them over to this case, as he should. He had an explicit term for the first appointment, so there might have been difficulties in passing the qualification assessment.

The lawyer had to consider the application for postponement of the decision execution on the debt recovery of UAH 300 thousand from the municipal children’s camp. The case was heard by his colleague, but he resigned soon. The dispute concerned a debt to an individual entrepreneur and was resolved in favor of the latter with the imposition of fines and penalties for a total amount of about UAH 72 thousand.

In early 2016, Y. Zaytsev partially granted the application, postponing the execution of the decision until mid-July of the same year. He was convinced that there are insurmountable circumstances that make it impossible to collect money. The fact that the children’s camp works only in the summer, therefore, it was not able to pay off.

However, according to the TDC of the HCJ, the judge did not provide the reasons for the rejection of the defendant’s arguments and did not indicate which “insurmountable circumstances” were meant. Given the obvious lack of motivation of the decision, the Chamber decided that there was a negligence for which a disciplinary penalty should be imposed on the judge in the form of a warning.

According to the speaker, Tetyana Malashenkova, the appellate instance subsequently upheld this ruling, changing only the reasons for the postponement. However, the cassation instance found violations of the competition and equality principles.

“In fact, I am being held accountable for having granted a postponement for the repayment of the debt to the children’s camp, which we still have little left”, Y. Zaytsev said. However, he agreed that the motivation part of the decision is really weak. And I asked to take into account that its purpose is to protect the legitimate interests of the communal enterprise. And the plaintiff must understand that there will not be any money in the accounts at the children’s camp in the winter. In the summer there will be an opportunity to pay off. Thus, it actually happened so.

  1. Zaytsev believes that the purpose of the complaint was just pressure on the court. After all, after the CE filed a petition for the payment in installments, a letter from the individual entrepreneur was received, to which the complaint attached the appeal to HQJC, as well as the applications to the National Police and the Prosecutor’s Office. However, according to the judge, the latter did not contain any registration marks.

A member of the HCJ Mykola Gusak wondered why the judge decided to protect the enterprise, but did not take into account that the IE also may have children who need to be fed. “I proceeded from the fact that in the winter the funds in the CE will not appear, and if you do not give a delay, it will go bankrupt and it will be sold”, the judge explained. In addition, the enterprise has already collected a fairly high interest – almost UAH 68.5 thousand. And the plaintiff has the right to apply for an additional 3% per annum and inflationary losses during the delay.

In this regard, the members of the HCJ consulted much longer, but also accepted the proposal of the rapporteur to abolish the decision of the TDC of the HCJ.

These examples show that a new defense strategy has emerged, and they believe in the fact that there is an authority in the capital that is designed not only to punish but also to justify. And this is definitely good news.

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