The independent legal comment of the Kharkov Group for human rights protection on the constitutional aspects of the criminal case against the President of Ukraine started by judge Yu. Vasilenko and on some following statements of Ukraine state officials


The Kharkov Group for human rights protection calls the attention of the „Prava ludyny“ readers to two comments concerning the constitutional and criminal-procedural aspects of the criminal proceedings against President of Ukraine Leonid Kuchma instituted by Yu. Vasilenko, a judge of the appeal court of Kyiv. The first comment is a response to the polemics in Ukrainian and foreign (see: „President seen likely to avoid probe“, „Clarifying an article on Ukraine“ – Washington Times, October 26, 31, 2002) mass media. This polemics concerns the question whether the actions of judge Vasilenko violate the guarantees of immunity of the President stipulated by Articles 105 and 11 of the Ukrainian Constitution. The first comment does not touch on the particular professional (criminal-procedural) aspects of judge Vasilenko’s actions, which were expounded in the decision of the Supreme Court of Ukraine of 27 December 2002 (Ухвала Верховного Суду України від 27 грудня 2002 р. // „Юридичний вісник України“, Nos. 1-2, 4-17 January 2003). These aspects are considered in the second comment. We also present the text of the Supreme Court resolution.

„PL“ editorial board

The independent legal comment of the Kharkov Group for human rights protection on the constitutional aspects of the criminal case against the President of Ukraine started by judge Yu. Vasilenko and on some following statements of Ukraine state officials[The text of the comment was prepared by V. Rechitskiy, the constitutional expert of the Kharkov Group for human rights protection.]

1. The short essence of the juridical position of the Kharkov Group for human rights protection on the affair of judge Vasilenko is the following: although only MPs have the right to initiate the procedure of impeachment if the President commits the high treason or other crimes, the institution of a criminal case, as a separate judicial action, does not correlate with the impeachment procedure. The matter is that, according to the Ukrainian laws, the question about recognizing an action as a crime is not a political one and may not be solved by MPs, this question is more narrow and special.

This means that before initiating the impeachment MPs must have the professionally stated „knowledge about the crime“, since expressing the suspicion that somebody (maybe even the President) committed a crime is unconditionally related by the Ukrainian criminal-procedural laws to the questions of special competence (the empowered state officials are listed in the Civil-Procedural Code (CPC)).

Judge Yu. Vasilenko tried to solve namely this problem: the problem of the professionally expressed suspicion. Besides, it seems to be obvious that the legal concept of „immunity“ in the Ukrainian Constitution is common, i.e. this special concept (term) is applied equally to MPs, judges and, according to Article 105 of the Constitution, to the President of Ukraine.

So, if starting a criminal case against an MP does not violate his immunity (recently the Procurator General’s office started the criminal case against Yu. Timoshenko without any violations of her immunity), then the similar actions against the President must be interpreted in the same manner.

2. The accusation of judge Vasilenko of the „certainly illegal decisions“ may not be based on the demands of Articles 105 and 111 of the Ukrainian Constitution, since a judge of an appeal court have no right to solve questions concerning the concordance of laws with the provisions of the Constitution. In Ukraine (the country with the continental legal system) this question is beyond his competence.

That is why judge Vasilenko might and had to act in the framework of the usual combination of the laws (the Criminal Code (CC) and CPC) and the text of the Constitution. Yet, these laws not only permit to start a criminal case (if there are sufficient arguments) but also oblige the empowered officials (including judges) to do this.

Under other conditions judge Vasilenko might be blamed for using the law obviously contradicting the Constitution. Yet, this reproach should be appropriate only if the constitutional formulas in Article 105 and 111 were distinct or if the official interpretation of these articles existed prohibiting to start a criminal case against the President before obtaining the official results of parliamentary voting on the impeachment (at that the majority of MPs must vote „place it“).

However, the known circumstances of the case confirm that judge Yu. Vasilenko believed and continues to believe that the CPC and Constitution of Ukraine do not contradict to each other. Such position is his professional right and is a part of his standard judicial authorities.

3. The assessment of the facts and proofs, on which Yu. Vasilenko grounded the decision, is very important in this case. Yet, every Ukrainian judge has the right for his own assessment. At the same time, the question whether the CPC, which permits to start a criminal case against the President, contradicts to the Constitution may not be solved even by the Supreme Court (the Supreme Court has the right to doubt as to this and to introduce the corresponding application to the Constitutional Court), not to mention the Supreme Council of Justice. In other words, if the Supreme Court and/or Procurator General’s office think, that some articles of the CPC contradict the Constitution of Ukraine, this does not mean that this contradiction really exists.

As it is known, item 2 of the resolution of the Plenum of the Supreme Court of Ukraine of 1 November 1996 „On applying the Constitution of Ukraine for the implementation of justice“ reads that „judges must consider the contents of any law from the viewpoint of its concordance with the Constitution and, if needed, to apply the Constitution as an act of direct operation“. However, this thesis does not mean that any concrete opinion of the Supreme Court of Ukraine or the Supreme Council of justice on the agreement or disagreement of some articles of the CPC with the Constitution has the pre-judicial significance for a judge or other authorized officials starting a criminal case against the President. Such opinion only obliges the Supreme Court to readdress its doubts to the Constitutional Court of Ukraine and to wait for the decision. According to the Ukrainian legislation, the grounded judgment about the concordance of the laws to the Constitution is an exclusive prerogative of the Constitutional Court.

So, until the Constitutional Court takes the decision on the interpretation of Articles 105 and 111 of the Constitution or on the question of the agreement of the CC and CPC norms to Articles 105 and 111 of the Constitution of Ukraine, the opinions of any other state organs concerning the assessment of the juridical actions of judge Vasilenko as violating the immunity of the President will remain the mere exchange of viewpoints.

Moreover, as it follows from the structural principles of the Ukrainian legal and judicial system, the Supreme Court of Ukraine has no right to cancel a court decision because of the discrepancy between the law, on which the decision was based, and the Constitution, since the Supreme Court cannot know about this discrepancy before the decision of the Constitutional Court. This means that the Supreme Court can solve such legal conflict only if it is sure that the law (normative legal act) agrees with the Constitution. If the Supreme Court is sure that the laws do not agree the Constitution, it must request the Constitutional Court. Thus, the Supreme Court may not establish the fact of such disagreement independently, so it may not ground its decisions on this assumption. These arguments are also true regarding the position of the Procurator General.

Thus, the Supreme Court had the right to cancel the decision of judge Yu. Vasilenko by these motives only if this decision was based on the assurance of judge Vasilenko of the contradiction (disagreement) between the CPC and the Constitution of Ukraine. Yet, judging from the circumstances of the case, Yu. Vasilenko was sure of the contrary.

4. It is declared by the Ukrainian legislation and confirmed by the law-applying practices that any decision of the Supreme Court of Ukraine may not be regarded as a precedent and, strictly speaking, may not be a legal source. So, any reaction of the Supreme Court concerning the resolution of judge Vasilenko in the part estimating the constitutionality of some articles of the CPC will not (and may not) solve any problems.

That is why MPs or other authorized persons ought to hand to the Supreme Court the statement on the interpretation of the norms of Articles 105 and 111 basing on the circumstances of the case of Yu. Vasilenko. Then, perhaps, the Constitutional Court would be forced to recognize that the interpretation of the concept of immunity in the Ukrainian Constitution is too wide.

5. Judge Yu. Vasilenko is right also according to „the rule of contraries“. The procedure, after which a judge or every other official having the corresponding authorities must wait for MP’s decision on the beginning of the impeachment and then necessarily start the case, is an obvious violation of the CPC. Ukrainian legislation does not permit a judge or other official to start a case as a result of the voting in the Supreme Rada, but not according to his convictions.

Of course, it is possible and necessary to envisage the special procedure in the special law. Yet, constitutional norms are the norms of direct action; they work independently of the presence or absence of the concretizing law.

6. Besides, the KhG regards that any really legal system in any condition (perfect or not quite perfect) must, first of all, guarantee the protection of citizens from criminal encroachments. This is the root of every genuine national and sometimes public international law. That is why any crime must be stopped by all existing legal means. It seems, judge Yu. Vasilenko tried to do just this. The above argument follows from the universal understanding of the law as a system of equal and guaranteed protection of citizens.

We believe that, under the conditions of the procedural competition between the constitutional norms guaranteeing President’s immunity and the guarantees of the protection of citizens from the criminal encroachments, one must remember that President is a top official, that is a servant (and not a master) of the people. That is why, if the President commits a crime, it is population that must be protected in the first place, but not the President’s immunity. After all, the immunity is the form of protecting President from probable criminal infringements, but not the universal pardon of his probable criminal abuses.

In other words, it is most important to emphasize the legal sense (legal goal) of the constitutional institute of impeachment. The fact that the decision of judge Vasilenko did not take away the procedural guarantees of Article 111 of the Constitution, but presumed them, is also significant.

7. The argument of the opponents of this position (including S. Piskun, the Procurator General of Ukraine -- „Washington Times“, 26 October 2002), who contend that the criminal prosecution of the President of Ukraine, according to Article 105 of the Constitution, may be started only after his dismissal, is ungrounded since Article 111 of the Constitution reads that the only possible reason for the dismissal of the President according to this article is „the perpetration by him of high treason or another crime“.

The latter condition (that is the recognition that some action of the President is a crime) may be established by court only. This means that the initialization and investigation of a criminal case, as well as issuing the verdict, must be realized in the framework of the impeachment, since, according to the Ukrainian laws, the juridical fact of the participation in a crime may not be established without court verdict (the presumption of innocence is stipulated by the Constitution).

8. Some opponents of the position stated in this commentary regard that starting a criminal case against the Ukrainian President by a judge of an appeal court is not valid, since institution of a criminal case against an MP (whose political and legal status is lower than that of the President) is a prerogative of the Procurator General of Ukraine.

Individual critics reckon that, since the status of the Ukrainian President is much higher than the status of a usual MP, only the Procurator General have the right to start a criminal case against the President.

This position contradicts to the logic of the Constitution, according to which the Constitution is the fundamental tool for limiting the state power and the main guarantor against any usurpation of the power.

That is why the Constitution may not determine the procedure of bringing the President to responsibility as dependent on one state official directly assigned by the President (the Procurator General, in this case). The very essence of the separation of powers and of the constitutionalism as a whole is to structure, but not to consolidate of the institutes of state power. In this sense the Constitution is the main guarantor against any criminal plot (collusion) of the top authorities of the country.

Besides, taking into account the peculiarities of the nature of legal and political status of MPs, their activity (passivity) has mainly the local (regional) character. So, the initial criminal-legal assessment of their activity (passivity) is ascribed, by the rule of the structural balance of the power, to the competence of the Procurator General.

As to the actions of the President of Ukraine, they, from the viewpoint of the guarantees of constitutional protection, mainly have the character of the top power actions. Thus, according to the rule of realizing the mechanisms and counterbalances of the power, the right to assess the actions of the President on the local (regional) level looks legally and politically valid.

9. The probable subsidiary (political) motives of the professional activities of judge Yu. Vasilenko may be disregarded in this case, since they have no juridical significance. The essence is that he regarded the norms of the CPC and the Constitution as consistent. Here judge Vasilenko followed the court ethics, which must be taken into account by the Supreme Council of justice first of all.

Although some experts and state officials in Ukraine think otherwise, as we see, their opinions and their acts are not of great importance until the Constitutional Court issues the direct and unambiguous decision on this problem. And what is more, for judge Vasilenko these acts and opinions must be inessential even after taking such decision, since the new juridical reality will emerge (if any) only after this decision would become operable and this will not have the retroactive effect (including the effect on the professional life of judge Vasilenko).

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