Ukrainian leaders should respect the independence of the judiciary

October 22, 2008

The Human Right Organization has come out and published a scathing report criticising Ukraine’s President, Victor Yushchenko for his political interference in the independence of Ukraine’s judiciary. This criticism comes following Yushchenko’s dismissal of another judge that ruled against his presidential decrees.

“As president of a democratic country, Yushchenko should observe and respect the independence of the judiciary, and not interfere with courts when they issue rulings he doesn’t like,” said Allison Gill, Moscow office director at Human Rights Watch.

Referring to Yushchenko ordering SBU agents to oversea the Courts deliberations

“It’s one thing for the security services to provide protection for judges,” said Gill. “But it’s quite another when they’re actually in chambers during deliberations. At a minimum, this creates the appearance of potential intimidation or even interference with a pending decision.”

Nihilism on high

Kyiv Post has also published an editorial peace by Katya Gorchinskaya attacking the President’s annihilation of justice in Ukraine. She headline the article with the question “When leaders don’t even obey the law, what hope is there for the rule of law?”

The executive branch cannot legally dismiss the judicial branch at will. There is a procedure for it, and it has to be observed by all political players, including the president – but it was not. There are strong calls to restart the long-postponed judicial reform, but it’s unclear how it would help in this mess and who would be able to carry it out in the first place and then implement it, if the country’s top officials so readily ignore laws, apply pressure and intimidate judges.

Unless judges are free of fear and pressure, there is no justice. Unless all branches of power observe law, democracy becomes an oxymoron. Unless all political players sacrifice their ambition and do their job right, it doesn’t matter how many parliamentary and presidential elections are held and how often – the country will stay in a mess.

The criticism of the Human Rights Umbrella group echos the concern expressed by the Parliamentary Assembly of the Council of Europe (PACE) in 2007 in which PACE was highly critical of Victor Yushchenko’s interference in the operation of Ukraine’s courts.

“The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law.”

The independence of the courts is enshrined in Ukraine’s Constitution.

The recent interference in Ukraine’s judiciary is made worse by the fact that it is Ukraine’s head of State that has compromised the constitutional independence of Ukraine’s judiciary. In a western democracy interference in the courts is an indictable offence and certainly grounds for impeachment of the head of state.

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Ukrainian leaders should respect the independence of the judiciary

October 22, 2008

The Human Right Organization has come out and published a scathing report criticising Ukraine’s President, Victor Yushchenko for his political interference in the independence of Ukraine’s judiciary. This criticism comes following Yushchenko’s dismissal of another judge that ruled against his presidential decrees.

“As president of a democratic country, Yushchenko should observe and respect the independence of the judiciary, and not interfere with courts when they issue rulings he doesn’t like,” said Allison Gill, Moscow office director at Human Rights Watch.

Referring to Yushchenko ordering SBU agents to oversea the Courts deliberations

“It’s one thing for the security services to provide protection for judges,” said Gill. “But it’s quite another when they’re actually in chambers during deliberations. At a minimum, this creates the appearance of potential intimidation or even interference with a pending decision.”

Nihilism on high

Kyiv Post has also published an editorial peace by Katya Gorchinskaya attacking the President’s annihilation of justice in Ukraine. She headline the article with the question “When leaders don’t even obey the law, what hope is there for the rule of law?”

The executive branch cannot legally dismiss the judicial branch at will. There is a procedure for it, and it has to be observed by all political players, including the president – but it was not. There are strong calls to restart the long-postponed judicial reform, but it’s unclear how it would help in this mess and who would be able to carry it out in the first place and then implement it, if the country’s top officials so readily ignore laws, apply pressure and intimidate judges.

Unless judges are free of fear and pressure, there is no justice. Unless all branches of power observe law, democracy becomes an oxymoron. Unless all political players sacrifice their ambition and do their job right, it doesn’t matter how many parliamentary and presidential elections are held and how often – the country will stay in a mess.

The criticism of the Human Rights Umbrella group echos the concern expressed by the Parliamentary Assembly of the Council of Europe (PACE) in 2007 in which PACE was highly critical of Victor Yushchenko’s interference in the operation of Ukraine’s courts.

“The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law.”

The independence of the courts is enshrined in Ukraine’s Constitution.

The recent interference in Ukraine’s judiciary is made worse by the fact that it is Ukraine’s head of State that has compromised the constitutional independence of Ukraine’s judiciary. In a western democracy interference in the courts is an indictable offence and certainly grounds for impeachment of the head of state.


History repeats: Victor Yushchenko interferes with Ukraine’s judicial process.

October 11, 2008

The Kyiv Administrative court has issued a injunction suspending the Presidents decree dismissing Ukraine’s democratically elected parliament.

In what is reminiscent of events unfolded last year, Victor Yushchenko has again interfered with the independence of Ukraine’s judiciary.

In April 2007 the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law.”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that

“Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat.” (item 67)

In emphasis the report (item 68) stated

“This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”


Fighting corruption with corruption Does the ends justify the means?

April 14, 2008

Viktor Yushchenko`s interference in the operation and independence of Ukraine`s constitutional court in order to prevent the court from ruling on the legality of his decrees must be condemned.

Having lost a ruling of Ukraine’s supreme Court Yushchenko once again has acted illegally and unconstitutional in his ongoing pursuit to pervert the course of justice and prevent the Constitutional Court from ruling against his decrees.

On March 25th Ukraine’s Supreme administrative court ruled against the president declaring Yushchenko’s dismissal of Ukraine’s Constitutional Court Judge illegal.

You cannot fight corruption with corruption.

On April 2nd Yushchenko in fulfillment of the Courts ruling reinstated Susana Stanik to the Constitutional Court. One day later, on the eve of the World Democracy Forum held in Kyiv, Yushchenko issued a new decree cancelling the decree made by his predecessor appointing Ms Stanik as a member of the Constitutional Court. In doing so the Ukraine’s president has once again breached his oath and the provisions of chapter XII of Ukraine’s constitution, seriously undermining confidence in the Head of State, Ukraine’s rule of law and democracy.

On what basis Yushchenko can justify and nullify the decision and decree made by his predecessor? It goes against all established principles of law and order.

The appointment of a Constitutional Court judge is not made by the President acting alone with absolute discretion.

Yushchenko must uphold and respect Ukraine`s Constitution and the process of justice in Ukraine. For a head of state to do otherwise seriously undermines confidence in the rule of law and Ukraine as being a democratic state.

The allegations against Ms Stanik are serious but they remain allegations until proven otherwise. There is a proper process and procedure in which these allegations can and should be considered. These allegations must be referred to the High Council of Justice for review.

On April 19 2007 the Parliamentary Assembly rightly criticised Ukraine and its President for interfering in the operation of the courts.

The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted

The west can no longer remain silent and turn a blind eye on the unconstitutional illegal actions of Ukraine`s head of state.

PACE must now defend its position and condemn the latest actions of Ukraine`s president.

Failure to do so would only undermine the European Parliamentary Assembly’s credibility and independence. If the “west” remains silent and continues to turn a blind eye it will, once again, set a dangerous precedent that a head of state can ignore the rule of law and act corruptly with immunity.

Legal nonsense
by Editorial , Kyiv Post
Apr 10 2008, 03:40

The legal stretchmarks left over from last year’s governmental crisis convinced many that President Viktor Yushchenko is more interested in keeping power than adhering to Ukrainian law. Though his decision to dismiss parliament was questionable, his tactics in preventing a Constitutional Court ruling on the matter were outrageous, plucking dissenting judges from the bench.

The saga lingers to this day, and Yushchenko’s conduct is once again questionable. The Supreme Court of Ukraine re-appointed Suzanna Stanik to the Constitutional Court in a March 25 decision, the same judge at the center of last year’s scandal. Yushchenko’s reaction was standard political maneuvering from Presidential Secretariat Chair Viktor Baloha.

The president accepted the Court’s decision by re-appointing Stanik on April 2, before dismissing her the next day, canceling the decree by former President Leonid Kuchma appointing her in the first place. The Secretariat also alleged Stanik never took her oath of office.

The presidential office should be concerned about corrupt judges, but it shouldn’t stretch Ukraine’s laws for a quick political fix. Attempting to annul a previous president’s decree from the moment it was issued, with a single signature, is legal nonsense. If Ukraine’s leaders can’t exercise self-discipline and compromise in resolving political disputes, then a strong checks and balances system must be forged. Making constitutional and judicial reform a top priority will help further that cause.


Fighting corruption with corruption Does the ends justify the means?

April 14, 2008

Viktor Yushchenko`s interference in the operation and independence of Ukraine`s constitutional court in order to prevent the court from ruling on the legality of his decrees must be condemned.

Having lost a ruling of Ukraine’s supreme Court Yushchenko once again has acted illegally and unconstitutional in his ongoing pursuit to pervert the course of justice and prevent the Constitutional Court from ruling against his decrees.

On March 25th Ukraine’s Supreme administrative court ruled against the president declaring Yushchenko’s dismissal of Ukraine’s Constitutional Court Judge illegal.

You cannot fight corruption with corruption.

On April 2nd Yushchenko in fulfillment of the Courts ruling reinstated Susana Stanik to the Constitutional Court. One day later, on the eve of the World Democracy Forum held in Kyiv, Yushchenko issued a new decree cancelling the decree made by his predecessor appointing Ms Stanik as a member of the Constitutional Court. In doing so the Ukraine’s president has once again breached his oath and the provisions of chapter XII of Ukraine’s constitution, seriously undermining confidence in the Head of State, Ukraine’s rule of law and democracy.

On what basis Yushchenko can justify and nullify the decision and decree made by his predecessor? It goes against all established principles of law and order.

The appointment of a Constitutional Court judge is not made by the President acting alone with absolute discretion.

Yushchenko must uphold and respect Ukraine`s Constitution and the process of justice in Ukraine. For a head of state to do otherwise seriously undermines confidence in the rule of law and Ukraine as being a democratic state.

The allegations against Ms Stanik are serious but they remain allegations until proven otherwise. There is a proper process and procedure in which these allegations can and should be considered. These allegations must be referred to the High Council of Justice for review.

On April 19 2007 the Parliamentary Assembly rightly criticised Ukraine and its President for interfering in the operation of the courts.

The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted

The west can no longer remain silent and turn a blind eye on the unconstitutional illegal actions of Ukraine`s head of state.

PACE must now defend its position and condemn the latest actions of Ukraine`s president.

Failure to do so would only undermine the European Parliamentary Assembly’s credibility and independence. If the “west” remains silent and continues to turn a blind eye it will, once again, set a dangerous precedent that a head of state can ignore the rule of law and act corruptly with immunity.

Legal nonsense
by Editorial , Kyiv Post
Apr 10 2008, 03:40

The legal stretchmarks left over from last year’s governmental crisis convinced many that President Viktor Yushchenko is more interested in keeping power than adhering to Ukrainian law. Though his decision to dismiss parliament was questionable, his tactics in preventing a Constitutional Court ruling on the matter were outrageous, plucking dissenting judges from the bench.

The saga lingers to this day, and Yushchenko’s conduct is once again questionable. The Supreme Court of Ukraine re-appointed Suzanna Stanik to the Constitutional Court in a March 25 decision, the same judge at the center of last year’s scandal. Yushchenko’s reaction was standard political maneuvering from Presidential Secretariat Chair Viktor Baloha.

The president accepted the Court’s decision by re-appointing Stanik on April 2, before dismissing her the next day, canceling the decree by former President Leonid Kuchma appointing her in the first place. The Secretariat also alleged Stanik never took her oath of office.

The presidential office should be concerned about corrupt judges, but it shouldn’t stretch Ukraine’s laws for a quick political fix. Attempting to annul a previous president’s decree from the moment it was issued, with a single signature, is legal nonsense. If Ukraine’s leaders can’t exercise self-discipline and compromise in resolving political disputes, then a strong checks and balances system must be forged. Making constitutional and judicial reform a top priority will help further that cause.


Ukraine’s Indecisive, Divisive, Illegal and Unconstitutional Election A recipe for disaster

September 21, 2007

In one weeks time Ukraine will go to the polls.

Public opinion polls are showing that Ukraine remains bitterly divided as it was back in 2004.

Next weeks election will only further divide Ukraine and add to the loss of confidence in the political process

The results of the election are unknown but what is known is that only the victor will support the outcome and who ever is the loser will reject it. If Yulia Tymoshenko loses the election she will once again claim that the results of the ballot was fraudulent. If she wins her opposition will claim likewise.

Earlier in the week the Government had cause to seriously question the conduct of the election, the role played by Ukraine’s President and the ongoing question and doubt of the legality of the president’s actions.

The ngovernment has made allegations levelled at the president’s secretariat of not respecting the oath of office and becoming embroiled in the political campaign. Imagine a situation where the Queen of England, or any other head of state, dismisses the parliament and then actively advocates support for thier chosen party.

In reality the situation is likely to get worst before it gets better.

It is more then likely that Ukraine’s next government will not be formed following the election irrespective of who wins next weeks ballot.

What ever the final results of the election are, the outcome, will have a negative impact and Ukraine may very well face a even worst period of dissent and disputation then it has experienced in past elections.

Had the situation in Ukraine occurred in a western democracy the actions of the head of state would have been ruled unconstitutional in that the Constitution does not provide the authority for the president to dismiss the parliament under the current circumstances.

The main cause of dissension and loss of confidence is to be found in the basis of the election and the president’s unconstitutional decrees dismissing Ukraine’s democratically elected parliament.

Unlike in other circumstances where there are grounds for early elections there is no political division or loss of confidence that has prevented the formation and functioning of government.

The government in Ukraine maintains the support of a majority of the elected representatives as was demonstrated by the fact that 260 out of 450 members parliament attended the recent parliamentary session.

The only cause of disputation is an ongoing power struggle between the office of the president and the parliament. The situation has been made worst by the president’s illegal interference in the operation of Ukraine’s Constitutional Court which has prevented the Court from ruling on the legality of the president’s actions.

The president’s decrees and actions are in direct breach of Article 5 of Ukraine’s Constitution in that the president has sought to usurp power where he has no authority.

The European Council also must share blame for the loss of confidence and exacerbation of political division in Ukraine.

Whilst the Parliamentary Assembly of the Council of Europe back in April 19 this year rightly called on Ukraine to resolve its divisions internally it failed to ensure that actions of the president and the resolution put in place was legal and in compliance with Ukraine’s constitution.

PACE has by its silence, effectively endorsed by a lawless state and allowed the current situation where Ukraine is now facing a serious breakdown in the constitutional order and a potential state of political anarchy . If this occurs then it is the executive leadership of PACE that must be held share responsibility and be held accountable for their actions.


Ukraine’s Indecisive, Divisive, Illegal and Unconstitutional Election A recipe for disaster

September 21, 2007

In one weeks time Ukraine will go to the polls.

Public opinion polls are showing that Ukraine remains bitterly divided as it was back in 2004.

Next weeks election will only further divide Ukraine and add to the loss of confidence in the political process

The results of the election are unknown but what is known is that only the victor will support the outcome and who ever is the loser will reject it. If Yulia Tymoshenko loses the election she will once again claim that the results of the ballot was fraudulent. If she wins her opposition will claim likewise.

Earlier in the week the Government had cause to seriously question the conduct of the election, the role played by Ukraine’s President and the ongoing question and doubt of the legality of the president’s actions.

The ngovernment has made allegations levelled at the president’s secretariat of not respecting the oath of office and becoming embroiled in the political campaign. Imagine a situation where the Queen of England, or any other head of state, dismisses the parliament and then actively advocates support for thier chosen party.

In reality the situation is likely to get worst before it gets better.

It is more then likely that Ukraine’s next government will not be formed following the election irrespective of who wins next weeks ballot.

What ever the final results of the election are, the outcome, will have a negative impact and Ukraine may very well face a even worst period of dissent and disputation then it has experienced in past elections.

Had the situation in Ukraine occurred in a western democracy the actions of the head of state would have been ruled unconstitutional in that the Constitution does not provide the authority for the president to dismiss the parliament under the current circumstances.

The main cause of dissension and loss of confidence is to be found in the basis of the election and the president’s unconstitutional decrees dismissing Ukraine’s democratically elected parliament.

Unlike in other circumstances where there are grounds for early elections there is no political division or loss of confidence that has prevented the formation and functioning of government.

The government in Ukraine maintains the support of a majority of the elected representatives as was demonstrated by the fact that 260 out of 450 members parliament attended the recent parliamentary session.

The only cause of disputation is an ongoing power struggle between the office of the president and the parliament. The situation has been made worst by the president’s illegal interference in the operation of Ukraine’s Constitutional Court which has prevented the Court from ruling on the legality of the president’s actions.

The president’s decrees and actions are in direct breach of Article 5 of Ukraine’s Constitution in that the president has sought to usurp power where he has no authority.

The European Council also must share blame for the loss of confidence and exacerbation of political division in Ukraine.

Whilst the Parliamentary Assembly of the Council of Europe back in April 19 this year rightly called on Ukraine to resolve its divisions internally it failed to ensure that actions of the president and the resolution put in place was legal and in compliance with Ukraine’s constitution.

PACE has by its silence, effectively endorsed by a lawless state and allowed the current situation where Ukraine is now facing a serious breakdown in the constitutional order and a potential state of political anarchy . If this occurs then it is the executive leadership of PACE that must be held share responsibility and be held accountable for their actions.