Disgraceful court decisions are preferred not to be published in the USSR.
In order to ensure the openness of the courts, Ukraine introduced the Unified State Register of Court Decisions back in 2006. But it seems that today there are unspoken exceptions to the established order of access to court decisions.
Rules of openness
As a reminder, according to the Law “On Access to Court Decisions”, everyone has the right to access court decisions. They are announced in public, except when the case was considered in a closed court session.
Since court decisions are public, they must be made public in electronic form no later than the next day after they are made and signed. The exception applies only to decisions on seizure of property and temporary access to things and documents in criminal proceedings, which are subject to publication no earlier than the day of their application for execution.
But even in those cases where closed court proceedings took place, decisions are still published. They only exclude information that, according to the court’s decision regarding the consideration of the case in a closed court session, is subject to protection from disclosure. And only court decisions on the granting of permission to conduct an intelligence event or on the refusal to grant such permission are not subject to publicity.
Decisions are open for free round-the-clock access on the official web portal of the judiciary of Ukraine. Ordinary citizens, who are called unauthorized users in the Code of Conduct of the USSR (decision of the Supreme Administrative Court dated 19.04.2018, No. 1200/0/15-18), can search, view, copy and print court decisions. And special authorized subjects (judges and other officials involved in the justice system) may be provided with additional tools for working with images of the information resources of the Register.
The mechanism of content filling and limitation
All court decisions and separate opinions of judges, expressed in writing, are entered in the register by courts of general jurisdiction.
An electronic copy of a court decision or separate opinion of a judge is made public by sending it to the Register on the day of its production by means of the court’s automated document management system. This is the direct duty of the judge who made the relevant decision.
Of course, in order to protect the interests of the participants in the processes, there are certain restrictions on the content of the texts that are made publicly available. The law stipulates that the following cannot be disclosed:
1) personal data (place of residence or stay of natural persons with address, telephone numbers or other means of communication, e-mail addresses, registration numbers of the taxpayer’s registration card, details of identity documents, unique entry numbers in the Unified State Demographic Register );
2) vehicle registration numbers;
3) bank account numbers, payment card numbers;
4) information, to ensure the protection of which the consideration of the case or the execution of certain procedural actions took place in a closed court session;
5) other information that makes it possible to identify a natural person.
Such information is replaced by letters or numbers (PERSON_1, INFORMATION_2, etc.).
Additionally (for security reasons), the texts of court decisions in criminal cases open to public access may not contain information about the judges who considered the court case and the participants in the process.
Also, in order to make it impossible to change or destroy things or documents in criminal proceedings, the texts of decisions on temporary access to things and documents in criminal cases open to public access do not include information that makes it possible to identify the persons specified in such decisions as owners things or documents.
Other restrictive measures are not provided by law.
Those responsible are not aware
Nevertheless, there are court decisions that the responsible persons consider appropriate not to make publicly available. At the same time, such decisions are not included in the exceptions described above, and the State Judicial Administration of Ukraine, which is responsible for the management of the EDRSR, prefers to ignore the problem, responding to requests for the number of such “classified” decisions with unsubscribes and forwarding these requests to the State Enterprise “Information Judicial Systems”. which is the administrator of the USSR. And the ISS generally refuses to provide statistical information on this matter.
So, for example, by the decision of the investigative judge of the Pechersk District Court of Kyiv dated March 1, 2018, the investigator of the Prosecutor General’s Office was removed from participation in the criminal case No. 757/8551/18-k. But this document is not in the register. The official reason is that the information is prohibited by law. But the consideration of the issue took place openly, the court’s decision was announced in public, and no measures were taken to ensure the protection of information in order to take certain procedural actions. This, in particular, is confirmed by the presence in the same register of texts of appeal and cassation decisions.
Perhaps the real reason for the restriction of access to information was that the court had established circumstances that encroached on the honor of the prosecutor’s uniform. The investigator made decisions that were overturned by investigative judges, so over time doubts arose about his objectivity and impartiality.
Incidentally, the facts of the commission of numerous crimes by former employees of the Department of Special Investigations of the Prosecutor General’s Office (artificial creation of prosecution evidence, violation of the right to defense, in particular, denial of a defense attorney, commission of offenses in the field of justice) were the subject of an investigation conducted by the State Bureau of Investigation. And the investigator appointed by the aforementioned decision was just a person involved in this case.
When the author drew the attention of the State Judicial Administration to the circumstances of the deliberate violation of access to the court decision, they washed their hands there: the requested information about the reasons for this was “not displayed and not documented by any means or on any media”, as well as “not created in the process of exercising powers”. The request was forwarded to the ISS.
But even there, as it turned out, no one is responsible for anything. More precisely, they, as administrators, cannot “independently carry out an analysis of the information contained in the Register, in particular, provide interpretation of issues of the functioning of the Register / access to the register, carry out statistical accounting / sampling of court decisions…”.
Therefore, the openness of court activities, the predictability of court decisions, and the promotion of equal application of legislation (the purpose of adopting the Law “On Access to Court Decisions”) for officials is an empty declaration.
By the way, the court has already recognized as illegal the actions of the State Judicial Administration of Ukraine to send letters and decisions of pre-trial investigation bodies to the State Enterprise “Information Judicial Systems” for the implementation of such decisions of pre-trial investigation bodies in connection with the violation of the requirements of the Law of Ukraine “On Access to Court Decisions” » and the Procedure for maintaining the Unified State Register of Court Decisions (see the decision of the Khmelnytskyi District Administrative Court dated February 25, 2021 in case No. 560/7790/20).
The problem is systemic and, unfortunately, it is ignored by the Human Rights Commissioner of the Verkhovna Rada, whose scope includes monitoring compliance with access to information, including, in accordance with the law “On Access to Court Decisions”.
But enforcement does not seem to be a priority of public policy. It is much more convenient to write new projects, hold round tables and flash mobs, and use grant funds for the next reform. Which is doomed to failure without the will to implement already adopted laws.