Let Us Protect the Budget of Ukraine!
The Donetsk human rights organisation “Donetsk Memorial” has long been concerned about the dire state of Ukraine’s national budget. To avoid remaining a mere bystander, the organisation decided to contribute to its preservation, so to speak.
We are referring to the reimbursement of losses incurred due to rulings by the European Court of Human Rights. Quite recently, thanks to such Court rulings, European judges “heated up” the state budget by more than 11 million hryvnias in a single day. However, it is clear to any sane person that the budget was not actually “heated up” by the judges of the European Court, but by those officials of ours, including judges, who violated the law when making their decisions.
How did “Donetsk Memorial” go about defending the state budget? On 4 June, the organisation sent a letter to the Minister of Justice with questions regarding two European Court of Human Rights rulings: in the case of Tsyhoniy v. Ukraine, where Ukraine paid the applicant 10,000 Euros because the Yevpatoria City Court had ruled in 2004 to hold the applicant in custody—a decision the European Court found unlawful; and in the case of Veniosov v. Ukraine, where 6,000 Euros were paid to the applicant because the Central District Court of Simferopol had ruled in 2005 that he be held in illegal detention.
We asked: “Does the Ministry of Justice, as the body authorised to do so, intend to take measures to recover these losses from the judges whose unlawful actions caused 16,000 Euros of damage to the state?
If NOT, we request you to inform us of the reasons why the Ministry of Justice does not consider it necessary to pursue the recovery of damages from the specific individuals who caused these losses.”
The Ministry of Justice did not respond.
Just as it did not respond to our follow-up request on 2 August 2012 (we thank Minister O. V. Lavrynovych for helping us understand how his words about the legality of the authorities’ actions correspond with his own actions). Only after a third appeal in September, addressed not only to the Minister of Justice but also to the Prime Minister of Ukraine and the Prosecutor General, did we finally receive a letter from the Ministry of Justice. It contained a detailed explanation of the procedure to be followed in cases where the budget is harmed by European Court rulings. However, it did not contain a single word about the Crimean judges and the damage they caused to the budget (by the way, is there any way to find out their names?).
These contests over the return of funds to the state budget, in which the Ministry of Justice persistently resisted for some reason, inspired us to take new, creative steps. Letters were sent to the President of Ukraine, and once again to the Prosecutor General’s Office and the Prime Minister, regarding the incomprehensible (or, in reality, quite understandable) attempts by the Ministry of Justice to avoid answering the substance of our questions.
It worked.
The letter signed by Deputy Minister of Justice A. Yu. Siedov can be considered a substantive response to our questions (provided below). It contains several surprisingly strange and interesting points. The first is in the very first sentence:
“In accordance with the letters of the Secretariat of the Cabinet of Ministers of Ukraine dated 15.12.2012 No. 48761/1/1-12 and the Prosecutor General’s Office of Ukraine dated 17.12.2012 No. 19-r, your appeal dated 01.12.2012 No. 279 has been reviewed.”
That is to say, our appeal from 1 December 2012 was reviewed by the Ministry of Justice not because we had persistently appealed to the department four times with the same question and the Ministry was legally required to provide an answer, despite having failed to do so in violation of the law. No, the Ministry of Justice is responding because it received letters from the Secretariat of the Cabinet of Ministers and the Prosecutor General’s Office (the creative approach worked).
Moving on.
The letter cites two documents that place an obligation (not just a right!) on the Ministry of Justice to file a lawsuit (and not to the Prosecutor General’s Office—see below).
Moving on.
The basis for “the filing by the Ministry of Justice of Ukraine of a lawsuit for the reimbursement of damages caused to the state of Ukraine as a result of judges delivering unlawful decisions is the establishment, by a court conviction (to which the Ministry of Justice itself should have applied—see above), of the elements of a crime in the actions of such judges.”
And here are the coveted words regarding the specific cases requested:
“At the same time, we inform you that work is currently underway to produce authentic translations of the European Court of Human Rights rulings in the cases of ‘Tsyhoniy v. Ukraine’ and ‘Veniosov v. Ukraine’.”
Only after this
“will the Ministry of Justice of Ukraine... apply to the Prosecutor General’s Office of Ukraine with a statement regarding the conduct of an audit, identification, and prosecution of the persons guilty of causing damages to the State Budget of Ukraine in connection with the execution of the European Court of Human Rights rulings in the cases of ‘Tsyhoniy v. Ukraine’ and ‘Veniosov v. Ukraine’.”
When might this happen? Please, there is an answer to that too:
“After these rulings have been translated...”
An important mention in the Ministry’s letter is that of another normative document: the Procedure for Organising Work on the Reimbursement of Damages Caused to the State Budget of Ukraine as a Result of the Execution of European Court of Human Rights Rulings. It would be interesting to see it.
There is also a certain surprise in the letter, although in truth, not a very surprising one.
For some reason, the Ministry of Justice believes that to identify and prosecute the persons guilty of causing damage to the State Budget of Ukraine in connection with the execution of European Court of Human Rights rulings, it must apply not to a court, but to the Prosecutor General’s Office. Is it impossible to assess whether violations occurred when applying to a court? Is our court so “cowed” that only a “permit” from the Prosecutor’s Office will open the doors to the administration of justice? But by this logic, it turns out that if, for example, the Prosecutor General’s Office makes a mistake and (suppose) proposes to find the judges guilty, the court will correct this error, and the judges will be cleared before the people and Themis. But if the Prosecutor’s Office errs in the other direction and—in a case where the judges are actually guilty—finds them innocent, the Ministry of Justice will not file a lawsuit, and the court will be deprived of the chance to correct such a “mistake” by the Prosecutor’s Office. And then the budget hole will not be plugged...
I am not even asking about the time the Ministry of Justice might spend on an “authentic translation.” The rulings in the aforementioned cases were issued on 24 November 2011 and 15 December 2011, and as of 4 January 2013—after more than a year!—there are still no translations. And by then, the statute of limitations for prosecuting the judges might be close... And there is no threat to the Crimean judges for the time being.
And perhaps there will be no such threat for a long time to come.
Therefore, I appeal to anyone who shares the concern for the State Budget: do not be indifferent, write to the Minister of Justice about other European Court of Human Rights rulings, and ask when those responsible for budget losses will be held to account.
Oleksandr Bukalov
“Donetsk Memorial”
MINISTRY OF JUSTICE OF UKRAINE
To the Head of the Council of the Donetsk Public
Human Rights Organisation
“Donetsk Memorial”, O. Bukalov
Regarding No.
In accordance with the letters of the Secretariat of the Cabinet of Ministers of Ukraine dated 15.12.2012 No. 48761/1/1-12 and the Prosecutor General’s Office of Ukraine dated 17.12.2012 No. 19-r, your appeal dated 01.12.2012 No. 279 has been reviewed, and we hereby inform you of the following.
Pursuant to Part 5 of Article 9 of the Law of Ukraine “On the Execution of Rulings and Application of the Practice of the European Court of Human Rights” dated 23.02.2006 No. 4777-IV, and the Resolution of the Cabinet of Ministers of Ukraine “On Measures for the Implementation of the Law of Ukraine ‘On the Execution of Rulings and Application of the Practice of the European Court of Human Rights’” dated 31.05.2006 No. 784, the Ministry of Justice of Ukraine is entrusted with the duty of applying to the court with a lawsuit for the reimbursement of damages caused to the State Budget of Ukraine as a result of the payment of compensation following rulings of the European Court of Human Rights.
Part 3 of Article 1191 of the Civil Code of Ukraine establishes that the state, having reimbursed the damage caused by an official or officer of an inquiry body, preliminary (pre-trial) investigation body, prosecutor’s office, or court, has a right of recourse against such person only if the elements of a crime in their actions have been established by a court conviction that has entered into legal force.
Hence, the basis for the filing by the Ministry of Justice of Ukraine of a lawsuit for the reimbursement of damages caused to the state of Ukraine as a result of judges delivering unlawful decisions is the establishment, by a court conviction, of the elements of a crime in the actions of such judges.
At the same time, we inform you that work is currently underway to produce authentic translations of the European Court of Human Rights rulings in the cases of “Tsyhoniy v. Ukraine” and “Veniosov v. Ukraine”.
After these rulings have been translated, the Ministry of Justice of Ukraine, in accordance with the Procedure for Organising Work on the Reimbursement of Damages Caused to the State Budget of Ukraine as a Result of the Execution of European Court of Human Rights Rulings, approved by Order of the Ministry of Justice dated 08.11.2011 No. 3280/5, will apply to the Prosecutor General’s Office of Ukraine with a statement regarding the conduct of an audit, identification, and prosecution of the persons guilty of causing damages to the State Budget of Ukraine in connection with the execution of the European Court of Human Rights rulings in the cases of “Tsyhoniy v. Ukraine” and “Veniosov v. Ukraine”.
In the event that the elements of a crime in the actions of the relevant officials are established by a court conviction, the Ministry of Justice of Ukraine will take measures, in the manner prescribed by law, to reimburse the damages caused to the State Budget of Ukraine by filing a lawsuit against the guilty persons.
Deputy Minister - Head of Staff A. Yu. Siedov