Council of Europe European Union Conseil de l’Europe Union europeenne Support to Good Governance: Інститут Project against Corruption in Ukraine (UPAC) M. A. Consulting Прикладних Гуманітарних Досліджень Corruption and Fraud Unit Department of Information Society and Action Against Crime Directorate of Co-operation Directorate General of Human Rights and Legal Affairs April 2009 CORRUPTION RISKS IN CRIMINAL PROCESS AND JUDICIARY Analytical part prepared by Institute of Applied Humanitarian Research Sociological part prepared by Company MAConsulting Views contained in this paper are those of authors and do not necessary reflect official position of the Council of Europe Kyiv - 2009 Analytical part prepared by Institute of Applied Humanitarian Research by: M. Buromenskiy, O. Serdiuk, I. Osyka, S. Syrotenko, I. Shekhovtzov, O. Volianska, S. Kalchenko Sociological part prepared by Company MAConsulting © Council of Europe, 2009 © Institute of Applied Humanitarian Research, 2009 © Company MAConsulting, 2009 CONTENTS I. EXECUTIVE SUMMARY ................................................................................................5 II. INTRODUCTION ............................................................................................................9 2.1 Methodology of the Research ....................................................................................9 2.2 Methods of Empirical Research ...............................................................................13 III. ANALYTICAL PART ...................................................................................................16 CHAPTER 1. CORRUPTION RISKS IN SITUATIONS OF CONTACT WITH JUDICIAL AND LAW ENFORCEMENT BODIES ACCORDING TO PUBLIC AND EXPERT ASSESSMENT ................. 16 3.1.1 Orientation to the Use of Corruption Models of Behavior in Situations of Contact with Judicial and Law Enforcement Bodies: Public Assessment ..................................................................................16 3.1.2 Basic Empiric Characteristics of Corruption Practice in Situations of Contact with Judicial Bodies and Law Enforcement Agencies ..............................................................23 3.1.3 Particular Characteristics of Corruption Practices in Courts: Based on the Results of Interviews with Experts .....................................34 CHAPTER 2. CORRUPTION RISKS IN CRIMINAL PROCEEDINGS: PRE-TRIAL AND TRIAL STAGES ..................................................... 48 3.2.1 General Characteristic of Criminal Proceedings in Ukraine ....................49 3.2.2 Character and Spreading of Corruption Practices in Criminal Proceedings of Ukraine .........................................................51 3.2.3 Corruption Risks and Practices at the Stage of Verification of Information About a Crime ............................................57 3.2.4 Corruption Risks and Practices at the Stage of Prejudicial Investigation of a Crime .....................................................74 3.2.5 Corruption Risks at the Stage of Trial Examination of a Criminal Case .................................................................................110 3.2.6 Conclusions and Recommendations .....................................................122 CHAPTER 3. CORRUPTION RISKS IN CIVIL LEGAL PROCEEDINGS ............... 131 3.3.1 General Provisions About Corruption Practices in Civil Legal Proceedings .....................................................................132 3.3.2 Corruption Risks at Certain Stages of Examination of Civil Cases ................................................................148 3 CONTENTS 3.3.3 Some Guarantees of Removal of Corruption Practices in the Civil Judicial Proceedings ............................................154 3.3.4 Recommendations ................................................................................159 CHAPTER 4. CORRUPTION RISKS IN ECONOMIC JUDICIAL PROCEEDINGS ............................................................. 161 3.4.1 Description of Individual Corruption Practices of General Character in the Economic Judicial Proceedings ................163 3.4.2 Corruption Risks at Individual Stages of Examination of Economic Cases ......................................................181 3.4.3 Recommendations ................................................................................193 CHAPTER 5. CORRUPTION RISKS IN ADMINISTRATIVE JUDICIARY ............... 195 3.5.1 General Characteristics of Administrative Judiciary ..............................195 3.5.2 Jurisdiction (Subject and Territory) ........................................................202 3.5.3 Separation of Administrative Jurisdiction from Other Jurisdictions, Including Separation of Public and Private-Law Disputes .....................206 3.5.4 Measures of Claim Provision .................................................................208 3.5.5 Principle of Official Ascertainment of Circumstances in a Case ............210 3.5.6 Peculiarities of Participation of the Subject of Powers in the Dispute .......................................................................211 3.5.7 Proceedings in Cases Concerning the Appeal Against Legal Acts .......212 3.5.8 Electoral Disputes .................................................................................213 3.5.9 Conclusions and Recommendations .....................................................222 CONTACT INFORMATION ................................................................................... 223 4 I. EXECUTIVE SUMMARY his report contains results of the corruption risks research in the four basic court Tproceedings and in the activities of criminal investigation bodies: criminal process (pre-trial investigation and trial), civil process, economic process and administrative process. With the aim of securing quality and objectiveness of the research the concept of the research was developed. The concept contained: definition of corruption and its main manifestations, a theoretical model of corruption behavior (subjects, conditions, corruption benefits, beneficiaries etc.), determinations and typology of corruption risks. The empirical research was conducted in three stages: (1) Preparatory which included focus groups and in-depth interviews, results of which were used for preparation of the concept and instruments for the research; (2) Basic research with the accent on reception of information about the real situations, in which respondents face corruption in courts and law enforcement agencies which included all-Ukraine representative survey among public representatives by method of face-to-face interview and interviews with target groups (experts – respondents, who have proper level of legal education and practical experience in corresponding proceedings in law enforcement agencies and courts); (3) Quality research based on the results of basic surveys/interviews which included focus groups and in-depth interviews with experts (defence attorneys, judges, practicing lawyers, entrepreneurs, human rights defenders, academics, citizens with experience of being a party to criminal, civil, economic and administrative proceedings). Sociological part of the research was conducted by consulting company MAConsulting in February – April 2009. Analytical part of the research was conducted by Kharkiv city non-governmental organization “Institute of Applied Humanitarian Research”. The research is conducted in the framework of the anticorruption project UPAC implemented by the Council of Europe and financed to the most part by the European Union (Support to Good Governance: Project Against Corruption in Ukraine). Taking into account results of the sociological research the main corruption risk in the situations of contacts by representatives of public with judicial and law enforcement agencies is “disposition” to corruption behavior: 1) Orienting of representatives of public to the application of corruption models of behavior; 2) Corruption demands from the side of related officials; 3) Activity of middleman who participate in solving of certain issues and orientate for corruption behavior. 5 CORRUPTION RISKS IN CRIMINAL PROCESS AND JUDICIARY The main conclusions regarding corruption risks which take place in all kinds of court proceedings are the following: 1) A condition of legislation (both procedural and material) doesn’t belong to determinative factors for forming corruption risks, but there are some provisions which produce corruption; 2) Existence of a complicated web of informal connections of judges (inside of the judicial system, in certain courts, informal relations with lawyers, social and personal relations of judges) is one of the main corruption risks, because neither ethic nor legal mechanisms of prevention of conflict of interests work; 3) A system of administrative relations in the courts contains some corruption risks in the part of producing conditions for different forms of judges’ dependence upon managers of the courts; 4) It makes sense to add to the factors producing corruption the way in which the courts functioning is organized (document flow, case assignment etc.); 5) It’s necessary to note that only insignificant part of the respondents connected appearance and development of corruption practices in judicial proceedings with low salaries of judges. The main conclusions regarding corruption risks in criminal proceedings at the stage of pre-trail investigation are the following: 1) The main factor causing flourishing of corruption in activities of