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17.08.2005 | Igor Koliushko, Roman Kuybida

Kuchma left, Kuchmism remained

   

“I swear – … Everybody will be equal before the law. Independent court will protect the rights of everybody. I see Ukraine as a state, governed by superiority of right” (from the appeal of President of Ukraine Viktor Yushchenko to Ukrainian people, declared on 23 February 2005 on the Nezalezhnost Square in Kyiv).

The activities of new President in many cases evidence on legal nihilism and disdain for the demands of the Constitution and Ukrainian laws of the team that provides this direction of President’s responsibility. Such attitude to right was not only a peculiarity of Kuchma’s regime, but also became one of the reasons of the phenomena, which got the name “Kuchmism”. After the appeals of V. Yushchenko on the necessity to guarantee the superiority of right in the state, the hope has appeared that the people would feel themselves protected from the arbitrary actions of power, protected by right and independent court. The corresponding item was in Yushchenko’s election program.

On 17 March 2005 the Supreme Council approved the Code of administrative legal proceedings. This Code had to become the procedural basis for introduction of administrative justice and to guarantee the proper level of protection of human rights from the violations on the side of power. The preparation of this Code lasted for almost ten years. This document appeared to be a peculiar test for President’s willingness to fulfill his promises concerning the principle of superiority of right in our state. On 20 April the President vetoed the Code of administrative legal proceedings, adopted by the Parliament.

Of course, the very application of the veto right to the Code cannot evidence about fulfillment or non-fulfillment of the pre-election promises, since it is a constitutional right of the President. He, being a guarantor of the Constitution, cannot allow coming into effect of an imperfect, and especially anti-constitutional law. However, the reasons for return of the Code of administrative legal proceedings for the repeated consideration of the Parliament has another meaning.

 

Something about the European tendency

In the opinion of the President (or, to be more exact, his Secretariat), normative-legal acts of the Head of the state, the Ukrainian government and the Supreme Council of the Crimean Autonomous republic must not be within the jurisdiction of administrative courts and other courts of general jurisdiction, only of the Constitutional Court. In other words, reasoning from the logics of veto, a person, whose rights have been violated by an illegal normative act of the President of Ukraine, Cabinet of Ministers of Ukraine or the Supreme Council of the Crimea, cannot find the protection in court, since this person has no right to turn to the Constitutional Court. Besides, the Constitutional Court considers such acts only from the viewpoint of their conformity with the Constitution, but not with laws. Such interpretation of the principles of separation of power and superiority of right, new for the doctrine and international practice, was invented in administration of President Leonid Kuchma and was more than once used for vetoing the Law “On the Cabinet of Ministers of Ukraine”.

Yet, for realization of the position of both former and new Presidents of Ukraine it is necessary to introduce changes into the Constitution, since it stipulates the following:

“Human and citizens’ rights and freedoms are protected by court. Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies of state power, bodies of local self-government, officials and officers” (Article 55);

«The jurisdiction of the courts extends to all legal relations that arise in the State» (Article 124).

A number of decisions of the Constitutional Court should be reconsidered in the same manner. According to one of them, “decrees and orders of the President of Ukraine are sublegal acts (part 3 of Article 106 of the Constitution of Ukraine), that is the acts that are adopted on the basis and for fulfillment of the Constitution and laws of Ukraine and must agree with them. So, they can be checked for compliance not only with the Constitution, but also with the laws of Ukraine. Check of legality of the above-mentioned acts is a function of courts of general jurisdiction”.

According to other decision of the Constitutional Court, authorities of the courts of general jurisdiction “concerning consideration of the cases, one side in which is the Cabinet of Ministers of Ukraine, including the cases connected with conflicts on acknowledgement as invalid of its acts, on the grounds established by laws, agrees with part 2 of Article 124 of the Constitution of Ukraine, according to which “jurisdiction of the courts extends to all legal relations that arise in the state”. The authority of the Constitutional Court of Ukraine comprises deciding on issues of conformity with the Constitution of Ukraine (constitutionality) of the acts of the Cabinet of Ministers of Ukraine (item 1, part 1 of Article 150 of the Constitution of Ukraine), but not on their legality».

It will be also necessary to introduce changes into the Constitution of the Autonomous Crimean republic, since, according to it, the normative-legal acts of the Crimean Supreme Council can be appealed in court by the persons, whose rights and interests are violated, and court can acknowledge such acts as illegal.

Maybe, we will have to resign the obligation of Ukraine to obey the European Convention on protection of human rights and fundamental freedoms, which guarantees to everybody the right for efficient mechanisms of legal protection of rights and freedoms in corresponding national organs, even if such violation has been committed by official persons. And this implies the direct way from the Council of Europe. Is this the promised European tendency of policy of the new Ukrainian President?

 

And who are the judges?

The second reason for vetoing of the Code of administrative legal proceedings is the invented and distorted interpretation of the Constitutional norm, which reads that the posts of judges of special courts can be occupied only by persons, who are the professionals in questions of jurisdiction of these courts, and such judges must do justice only in composition of collegiums of judges. In the opinion of the President, this means that legal proceedings in circuit administrative courts should be realized only by collegiums of judges, and the Code, adopted by the Parliament, also envisages the possibility of personal solution of cases. If it is so, then practically all decisions, taken by economic courts since 1996, may be considered as unconstitutional, since they ware taken by judge personally. Moreover, it would be rather strange, if all, even insignificant, cases would be considered in circuit administrative and economic courts only by collegiums of judges, whereas the majority of criminal cases are considered in general courts by one judge. Well, the question about acknowledgement of a person to be guilty of commitment of a crime is solved in criminal cases!

In reality, the logics of the Constitution is quite different. It permits to be the judges of special courts not only to lawyers, but also to professionals in other spheres, which concern the corresponding court jurisdiction. Yet, in order to prevent the situation, when the opinion of judges-not-lawyers would dominate in consideration of the case, it is stipulated that they carry out the legal proceedings in composition of a collegium of judges jointly with judges-lawyers. By the way, such approach is also realized in the Law “On judicial system of Ukraine” (Article 59). On the other side, not a single not-lawyer has not used this mechanism yet for becoming a judge, so now only lawyers work as judges.

In the part of integration of collegial and personal court consideration of administrative cases the Code agrees not only with the Constitution of Ukraine, but also with the experience of European countries in the sphere of administrative justice, in particular Recommendation R (86)12 of 16 September 1986 of the Committee of Ministers of the Council of Europe to the states-members on the measures for prevention and reduction of the excessive work loading of courts. This document suggests to the states “to practice widely, where it is not done yet, passing of cases to consideration of one judge in the first instance in all corresponding questions”.

Thus, the propositions of the President are directed at the restriction of human right for court protection and look rather strained. It seems that President’s team is interested in deceleration of introduction of administrative justice in Ukraine, which should guarantee the independent and efficient court protection of citizens from the arbitrary actions of power. Moreover, the President proposes to deprive citizens and juridical persons of the constitutional right to appeal against the normative-legal acts of the President, Ukrainian government and the Supreme Council of the Crimean Autonomous republic. Today they have such constitutional right. And the courts of general jurisdiction consider the corresponding cases. According to the Constitution, the constitutional right to appeal against decisions, activities or passivity of power organs may not be restricted (Article 64), and the content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws (Article 22).

We hope that is it only an inadvertence of Viktor Yushchenko, but not his conscious position. It seems that the new President of Ukraine inherited the juridical service from the team of his predecessor, together with its legal nihilism. Yet, the President must understand that it is he, but not his juridical service, who is responsible to the Ukrainian people.

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