(In)accessibility of justice: why are cases delayed in Ukraine?

The timeframe for court hearings in Ukraine is far from the European criterion of reasonableness. And it seems that the blame for this is now being shifted to lawyers who obstruct justice by filing «unnecessary» motions and challenges. According to some politicians, this should be punished by the court on the spot.

Recently, the media have begun to publish articles that rather one-sidedly cover the problem of the length of time for consideration of cases. The public is being led to believe that the problems of the Ukrainian judiciary are the fault of lawyers who constantly abuse their rights.

A number of draft laws have already been prepared for consideration, according to which judges will establish the facts of abuse by separate rulings and punish the «offenders» themselves or pass their decisions to the disciplinary bodies of the bar. In this case, the latter would play the role of statisticians.

Such a distorted understanding of the issue may violate the principle of independence of the bar.

It is clear that a Ukrainian judge today already has levers to respond to violations of the procedural codes by the parties. And by implementing the principle of legal certainty in the interests of the parties, he or she is empowered to counteract the so-called abuse of rights.

But why is this not happening, why introduce an additional mechanism of pressure that ultimately contradicts the Constitution?

The Ukrainian National Bar Association invites all practicing attorneys to join the discussion of the problem of efficiency and accessibility of justice and to share their own experience in courts:

• what, in your opinion, are the real reasons for the lengthy consideration of cases by Ukrainian courts;
• what do you see as legitimate mechanisms for the courts to implement the principle of legal certainty in the context of observance of reasonable time limits?
• whether you have encountered «abuse of rights» by procedural opponents: both fellow lawyers and representatives of the prosecution, and if so, which are the most common;
• whether judges can abuse their rights, whether you have encountered this in court hearings, if so, in what form it took, which are the most common;
• in which cases motions and statements of lawyers filed in accordance with the procedural law may (or may not) be perceived as abusive and how judges can and should respond to this;
• what part of all the applications and motions filed by you is satisfied by the court (in civil, administrative, commercial and criminal proceedings)
• whether the courts take into account your workload (participation in investigative actions, other proceedings, business trips, illness, etc.) when setting the date and time of court hearings;
• whether you consider the postponement of court hearings due to the absence of a lawyer or prosecutor to be a widespread phenomenon;
• in what forms the «accusatory bias» of the judiciary can affect the duration of criminal proceedings.

Answers to these questions, as well as opinions and examples from your own practice, can be shared until October 18 with the coordinator of the UNBA Committee on Protection of Advocates' Rights and Guarantees of Practice of Law Vitaliy Fedirko (v.fedirko@unba.org.ua).

All the collected information will be analyzed and used in the preparation of the report on the state of efficiency and accessibility of justice, which the UNBA will send to national and international institutions.