«FORWARD MARCH OVER THE CLIFF»
I should make certain things clear at the outset.
Firstly, I experience an unparalleled, almost physical, aversion to Piskun the man. For me he is a genius of loathsomeness, the epitome of the jackal Tabaki from the magic tale of Rudyard Kipling about Mowgli. Piskun always knows how to find the most vulnerable point in any person, as well as what the best moment is to sink his rotten poisonous fangs in. Once as a child I read a Crimean Tatar fairytale about an evil Khan who, where his heart should have been, had neither a stone, nor a piece of iron or wood, but rather a ball of wool. Because if you tap a stone, a piece of iron or wood, you get at least some kind of response, but what do you get if you tap wool? So just such a ball of wool is what Piskun has inside him – instead of a conscience, honor, dignity, morality and so forth.
Secondly, I personally did all I could, and maybe even a little more, to ensure Yushchenkos victory. And at the present time I consider Yushchenko and Co., regardless of the numerous idiocies that he and his, forgive the word, «team», commit to be the least dangerous ‘players in our country although … only in comparison with other “leaders of electoral preferences”.
Thirdly, there is indeed a “court mafia” in Ukraine. It is specifically with the leaders of this that Yushchenko periodically holds “productive” meetings on the subject of “the further consolidation and implementation of the principle of the rule of law”
Fourthly, I absolutely and without qualification endorse (as a person and as a voter) Piskuns dismissal and the refusal to voluntarily execute the ruling calling for his reinstatement as Prosecutor General despite the fact that his dismissal was unlawful and the non-execution of a court ruling is an offense.
And now to get down to the real issue.
In order to consider any judicial issue without prejudice, one needs to distance oneself from personalities, to so to speak, “blindfold Lady Justice”. Thus, the task is formulated in the following way: “How can any, hypothetical, President dismiss any, hypothetical, Prosecutor General of Ukraine?” Note: particularly sensitive readers may like to imagine that this is not Yushchenko dismissing Piskun but, for example, Kuchma – Shyshkin.
We need to analyse:
1. Point 11 of Part 1 of Article 106 of the Constitution in accordance with which the President of Ukraine appoints the Prosecutor General of Ukraine to office with the consent of the Verkhovna Rada, and dismisses him or her from office.
2. Part 1 of Article 122 of the Constitution whereby once again the Prosecutor General is appointed to office with the consent of the Verkhovna Rada of Ukraine and is dismissed from office by the President of Ukraine, with the Verkhovna Rada however able to express a vote of no confidence in the Prosecutor General which shall result in his or her resignation.
3. Article 123 of the Constitution according to which the organisation and operational procedure for the bodies of the Prosecutors office are determined by law.
4. The Law of Ukraine “On the Prosecutors Office” of 1991 “the year of birth” in its current version, which contains Article 2 in accordance with which: “…the Verkhovna Rada of Ukraine can declare a vote of no confidence in the Prosecutor General of Ukraine which shall result in his or her resignation from office. The Prosecutor General of Ukraine shall be dismissed from office also in the following cases: on the expiry of the term of office; on being unable to perform his or her duties due to their state of health; on the infringement of requirements as to incompatibility of other activities; the coming into legal force of a conviction against him or her; the termination of his or her citizenship; if the person hands in his or her resignation”.
5. The Decision of the Constitutional Court of Ukraine No. 8-pn/2002 from 07.05.2002 in connection
with the constitutional petition of the President of Ukraine seeking an official interpretation of the provisions of parts two and three of Article 124 of the Constitution of Ukraine (the so-called “case concerning the jurisdiction of acts on the appointment or dismissal of officials”) which was apparently supposed to explain the points at issue for those using the law, but which instead itself requires comprehensive interpretation.
I assert that any person who has at least a basic secondary education is capable, by making some mental effort, of analysing by themselves the by no means considerable weight of normative acts outlined here and come to their own conclusion as to the legal position of both parties in the case, as well as with regard to the decision of the court.
And if one simplifies complicated legal relations still further to the level of a “binary code”, then what it boils down to are the dilemmas:
With regard to the dismissal of a hypothetical Prosecutor General of Ukraine, a hypothetical President of Ukraine has DISCRETIONARY powers (that is s/he can dismiss the said AT HIS OR HER OWN DISCRETION, PROVIDING ABSOLUTELY NO JUSTIFICATION, – for being obstreperous; for having a greasy mug; for not being partisan; for having a loose tongue; for showing an excessive desire to keep to the law and to get to the truth of something – take your pick!)
a hypothetical President of Ukraine has the right to dismiss a hypothetical Prosecutor General of Ukraine on the basis of current legislation (we will leave aside for the moment the question of how complete and adequate this very legislation may be).
And one further statement:
A hypothetical Prosecutor General of Ukraine dismissed from office by a hypothetical President of Ukraine HAS THE RIGHT, just like any other citizen of Ukraine, to seek redress from the courts.
S/he doesnt have this right since an ordinary Ukrainian citizen is not legally able to apply to the Constitutional Court of Ukraine to have an act of the President of Ukraine declared unconstitutional, and therefore, following the logic of Holovaty (the Minister of Justice – Ed.) and his supporters, the option of appealing to a court of general jurisdiction is also excluded.
In my humble opinion, the resolution of Judge Ihor Moroz and his colleagues although something of a ‘potpourri ruling with a whole mixture of possible judicial aspects of complex legal relations is however correct in its essence. I entirely support the legal position taken in the resolution and the grounds given. Many people can confirm that even before the announcement of the ruling I used virtually the same words to explain the flaws in the legal position of the Presidents team. The fundamental principle here is that so-called “constitutional-political responsibility” can come into play only on a vote of no confidence from Parliament (the Verkhovna Rada) since this is a collective legislative body, and the President, who is the highest official in the State and obliged to act exclusively within the framework of the Constitution and legislation of Ukraine, CANNOT HAVE this type of responsibility since it constitutes kuchmism, wild-west mentality and authoritarianism.
I am convinced that no normal person would like the option of a president who is wilful and impotent. Yet for some reason, when it comes to a repulsive creature like Piskun, common sense is blurred by hatred and the desire to ‘get” the swine at any price!
However is Piskun really worth SUCH a price? Not for a minute! Even more that, given the total impossibility of Piskun ever ACTUALLY being able to have his position restored, for him the role of clown who like a “wise fool” will teach Yushchenko and his “highly professional team of lawyers” about the rule of law from the screen of Channel 5 is entirely natural. “There is no sight more pleasing on this earth …” is specifically this absurd and idiotic situation which may at the end of the day prompt our political elite and society to begin an honest and open discussion about the horrendous state of affairs with the legislation and lawfulness in the country.
It goes without saying that under Kuchma the law had virtually entirely lost its role as regulator of social relations in the country, having ceded their place to behind-the-scene intrigues, to all the ‘gangs and ‘squads. For that reason no one even set about refining the law since there was simply no need for it. During the time since Yushchenko came to office, he has proved unable not only to improve the situation, but even to fully understand it himself. In the meanwhile, the law at the level of straight banal erudition is a science easy enough to learn, accessible even to a graduate of the Ternopil Finance and Economics Institute. For that you need only pick up a textbook on the theory of State and the law for first-year law students from the book market on Petrivka St. and ask an “A” grade student from the Kyiv-Mohyla Academy to come for 10-15 minutes a day for individual lessons. I am certain that after just one month of scarcely taxing lessons our President would stop coming out with the mind-boggling legal nonsense which appals his supporters and gives his enemies cause for malicious satisfaction.
It should be noted that Yushchenko and Co. had been single-mindedly moving towards this ignominious situation since the memorable ruling of the Supreme Court of Ukraine, as a result of which Yushchenko was justly, but unlawfully, made President. As I predicted, Yushchenko never did understand that it was not he himself, and still less his lawyers, who won that court hearing, but the people who had risen up in protest, and that other similar “presents from kind Lady Justice” were not going to come tumbling down in future. For some reason Yuschenko decided (or was convinced of it by the “legal geniuses” in his team), that the entire legal system would continue to deftly “work” for him, adapting itself to his somewhat original ideas of “whats good and whats bad” and being governed in this exclusively by principles of “abstract justice among friends”.
Piskun the Prosecutor General is already an oxymoron. However as regards his reinstatement to that post I, in contrast to many others, see entirely positive aspects.
Piskun held office for 9 months. What, was it not possible to solve the problem with him ahead of time? I am certain that if, immediately following his inauguration, Yushchenko had approached the Appeal Court in Kyiv appealing against the decision of Judge Zhanna Bernatska from 9 December 2004 about the previous reinstatement of Piskun to this office, the court would have obliged and would have accepted his appeal, renewing the period for an appeal as one which had not been adhered to for good reasons. It would have then been possible, without going too deeply into a legal maze, to have revoked Judge Bernatskas ruling solely on the basis of the lack of grounds for extending the term for an appeal to the court by Piskun himself. However in January 2005 Yushchenko and his “single Orange team” were enthusiastically sharing out the choicest pieces of the cake and they didnt have time to think about some “main eye of the State”. Why did Yushchenko not even try to initiate a vote of no confidence in Piskun in the Verkhovna Rada? Why didnt he give a directive to “raise” all the compromising material on him so thick on the ground? Why? Why? Why?
How was it possible to “buy” the “convincing” arguments of Holovaty, Poludyonny and God knows who else that supposedly Piskun could be dismissed without providing reasons? Did Yushchenko listen to the “other side”, that is, to people (and there were plenty of such people, myself included) who unfailingly foresaw precisely this course of events?
Yushchenkos main problem is that he does not realize the depth of his legal ignorance. He doesnt understand that he needs to learn himself and that, both in order to resolve specific issues, and to form legal strategy, he needs to enlist real specialists who will tell him THE SIMPLE TRUTH, and not only sycophants who whisper in his ear precisely and solely that which he wishes to hear. Unfortunately, for our country this is a serious problem: even those who have a decent understanding of legal issues, for their own opportunistic motives, without damaging their own reputation, say things which are legally very dubious. The latest example of this was Volodymyr Shapoval, a serious and authoritative specialist and Judge of the Constitutional Court, who took part in passing that very decision of the Constitutional Court which was cited by both Piskun, and Holovaty, each claiming it as proof of their legal justification! And what about the conclusions of the Helsinki Group! One wants to howl, I swear: people whom it would be difficult to accuse of being inclined towards totalitarianism or authoritarianism, are prepared to defend the Presidents discretionary powers and deny the right of the individual to legal defence!
If a person wants to defend someone from a thug, s/he needs to be not only noble, but also on a more banal note able to fight better than the said lout. No morality will save you if you want to create a website and youre not a programmer. With the help of morality you cant win the world chess championship, establish a world record for the hundred metres or manage the economy. I think this should be clear even for Viktor Andriyovych. So why can he not understand that in order to manage the country and when trying to resolve complex legal issues morality is even more insufficient?
We need real professionalism in any field where a battle is raging. In this specific case what was needed was the ability to run civil cases in courts of general jurisdiction. Have Poludyonny or Holovaty often visited courts? Such occasions have taken place but not so often that they could feel in their own element there. Piskun certainly does not have knowledge of the law at all, however he did his homework for this case (or it was done for him) well enough. Its possible that Yushchenkos team might have had some chance if the Shevchenkivsk court had not been headed by Boris Hulko, well-known protégé of a political force which is association with the “lawyers – footballers”. When I discovered that crafty Hulko had palmed the case off onto Ihor Moroz, I immediately said, in front of plenty of witnesses that there was a likelihood of 99,6 % that within days we would have two Prosecutor Generals. This was because I know Ihor Moroz through court cases, know his level of professionalism and his reputation as a person who is a little on the timid side, but honest and principled. He is one of those who wont himself get into a fight, but if the fight has come right onto his doorstep, hell do his bit. I was convinced that he would not put the last vestiges of the Ukrainian justice system to shame and would pass a lawful ruling. It is clear that Hulko was confident of this, as well as all legally “wised up” friends and enemies of Yushchenko. I am aware from a huge number of sources independent of each other that there were attempts to warn Yushchenko that the legal position taken by Poludyonny and Holovaty was if not entirely flawed, then at least more than questionable.
The only result of these attempts was the true hysteria shown by Holovaty with regard to the “Jewish-Martian judges conspiracy” and the accusations addressed at Ihor Moroz of being a “court mafioso”.
Clear as mud. And specifically Moroz! Whether it is fitting for the Minister of Justice to descend to almost marketplace swearing directed at Ihor Moroz and other judges, let us hope, will be clarified by the Council of Judges who are apparently planning to hold a meeting on this question in the near future.
What is really important is not what happened to you but how you relate to what happened. I am appalled not by what Yushchenko and Co. do but by the fact that grown adults certainly over the age of consent who aspire to steer the course of the nation, DENY OBJECTIVE REALITY and INDISPUTABLE FACTS, and by doing so put themselves in an idiotic situation and “set up” the country.
Let me give an example. If I am flying, Batman-like, in my car, hurrying on urgent and important business, and a “daishnyk” [officer of the road police] stops me and shows me on his radar equipment the proud figure “160”, or around that, I am not going to scream at him that hes a moron or degenerate, that hes stopping me from getting on with my business and that in general hes a total miscreant. If I say all of that, the cop will decide either that Im cracked or that Im the relative of some Deputy or Minister or other, and that its that which has caused my arrant cheek meter to go wild. Because to deny that youre wrong when its obvious to everybody is a sign of stupidity or of weakness, and in no way evidence of being cool and macho. A person in such a situation will usually say something like: “Hey man, take this bribe, or make a formal record and … forgive me, and let me get away as quickly as possible – Im really in a hurry, I really do need to rush!” Piskun needed to be dismissed in any case and at any price – however it should have been done honestly, saying something like: “Dear friends! Legislation on this issue is extremely contradictory, and for that reason I am not certain that this decree is legally faultless. However Piskun is a monster whose continued presence in office is causing irreparable damage to our society, and I am therefore forced to take this risk». And then he could have responded calmly to the ruling of the court especially since it was possible to not execute it at all without any consequences for himself. However doing this it would have been important to not forget to repeat at any opportunity that, “dear friends, I am very sorry that our legislation is so imperfect, labour laws, and executive, and all others, but we are working hard to perfect them!”
Thus, the legal institution of “reinstatement at work” is an unbridled Soviet mental aberration which effectively means the forced obligation to enter into a (labour) contract against the wishes of one of the parties, however for some reason this doesnt seem to worry anybody! No normal employer will even let someone in charge of a grain silo who has stopped being trusted back to work, and even if they do, in order to execute a court ruling, let them back, they will be forced to hire another person, and the “reinstated” person will be simply paid a salary while they look for iron-fast grounds for a legally impeccable dismissal. Not to speak of a chief accountant, not to speak of the Prosecutor General. Has anyone heard of Deputies from the blok “Nasha Ukraina” tabling a draft law that would put an end to this anachronism? So there you are.
The execution of court rulings in Ukraine is in general from the realm of fantasy. In brief: if a person doesnt want to adhere to the ruling, it is virtually impossible to force him or her to do so. Ukraine will lose wads of cases lodged on these grounds with the European Court of Human Rights, while people spend years haunting the thresholds of bailiffs offices.. It was that same Ihor Moroz, having refused to “fit in” with the plans of Kyivs Mayor Omelchenko and his faithful “land six” Mukhovikov, who issued several rulings which obliged the Kyiv city territorial electoral commission to register the election of Deputy of the City Council, Petro Holovatenko. Everyone guessed what exactly the commission saw in these rulings, despite the criminal case launched due to the non-execution of the court ruling. At present Holovatenko has already won 18 court cases however has still not become Deputy. Given this, nothing remains but to wish Piskun a fair wind in the hopeless task of ACTUAL reinstatement in office. Since: Piskun has to travel a long path through the bailiffs service where he is likely to get stranded still at the stage of determining the procedure and means of implementing the ruling, and then it will transpire that it is impossible to force Yushchenko to reinstate him in office because the latter has immunity and in general this topic is exclusively for hypothetical musings along the lines of “is there life on Mars”.
It is undoubtedly the case that Yushchenko receives all the negative fallout from the fact that he is knowingly breaking the law and not implementing the courts ruling. Yet how different he would look in the situation where he said that he understood the court ruling, admitted that it could not have been otherwise, but that he was unable to implement it and that he was preparing to hold by his conscious violation of the law and take full political responsibility, given his lack of legal accountability.
I am convinced that the majority of Ukrainians feel little interest in the question of the Presidents morality, especially given that the latter is somewhat specific. People are concerned that he promotes the introduction of good laws and their observance, and first of all that he does not break them himself (with the exception of such cases as, for example, with Piskun). For this it is vital that the President has a really professional team of lawyers who are concerned with the law in itself, and not the level of “proximity to the body”. A lawyer is needed not to take decisions instead of his or her client, but in order to explain to this client what points of view exist, what sort of options there are, and to determine the likelihood of this or that option. It is not in the slightest obligatory to keep these people around you on a permanent basis – they can be called in order to resolve a specific issue of the type: “how can we dismiss Piskun and what could be the consequences of such a dismissal?” The professionals should act as consultants and give their well-justified opinion. However it is the President who must take responsibility. And in the first instance he himself should ensure that he has at his disposal honest, sometimes unpleasant or inconvenient legal analytical drafts, on the basis of which he will be able to take conscious, adequate decisions. If he has insufficient or in general flawed information on which to base his decision, this points solely to his unsatisfactory work in forming the required team.
P.S. I hope that Viktor Yushchenko and his colleagues will at least have the sense to not put pressure on Ihor Moroz. I swear that if all our judges were such “Mafiosi” as him, our justice system would not now need reforming.
 The author here gives a reference to the record of Piskuns press conference following the Shevchenkivsk courts resolution, published in the online newspaper: Obozrevatel on 24.11.2005 (www.oboz.com.ua). In it Piskun stated that the issue was not about him personally. “It is a question of the rule of law and of legislation in Ukraine as an independent state which all loudly proclaim on all squares”. He also claimed that his dismissal had been due to the Presidents aides wanting to get rid of him due to criminal cases he said that the Prosecutors office had launched. At the end when asked whether he had tried to return to work (he had not, but said he could have), he said that “ thousands of people” had come up to him the previous day on Maidan Nezalezhnosti [Independence Square], shaken his hand and said that they supported him. (translators note)
 Viktor Shyshkin was Prosecutor General from 1991 – 1993. He has since been on the committee investigating the murder of Georgy Gongadze and in November 2005 was appointed Judge of the Constitutional Court of Ukraine (translators note).
 The author has provided a reference to the relevant Decision of the Constitutional Court. The main question was whether the statement in the Constitution that “the jurisdiction of the courts extends to all legal relations that arise in the State” should be understand as meaning that courts of general jurisdiction were competent to deal with issues involving the appointment or dismissal of officials by the President or the Verkhovna Rada. (translators note)
 This was the Resolution of 18 November 2005 from the Shevchenkivsk District Court in Kyiv on the appeal lodged by former Prosecutor General, Sviatislav Piskun against his dismissal from office. The court allowed the appeal stating that the Decree of the President dismissing Piskun had been unlawful and revoking it. (translators note)
 that is, the institute which Viktor Yushchenko graduated from (translators note)
 The Ruling here was, of course, that of 3 December 2004 which overturned the results of the second round of voting in the Presidential elections because of massive vote-rigging and called for a re-run. There is a reference to another article by the author from 08.02.05, in which she states that the Supreme Court, finding itself in the position of a doctor forced to choose between the life of the mother or of her unborn child, chose the “mother” – justice, instead of the “child” – lawfulness, that is, taking a decision which was fair, but not in keeping with the letter of the law. (translators note)
 Piskun had been Prosecutor General under Kuchma but was dismissed on 29 October 2003, possibly because he had reported that there was new evidence in the Gongadze Case. The Kyiv court, presided over by Judge Bernatska, declared the dismissal illegal on 9 December 2004, and he was reinstated a day later. (translators note)
 Serhiy Holovaty, as mentioned above, is Minister of Justice; Mykola Poludyonny is Presidential Advisor and Head of the Central Service of Legal Policy of the Presidents Secretariat. (translators note)
 The author is mistaken here since there is no commentary of the Helsinki Group. It is possible that she is thinking of the commentary of the Center for Political and Legal Reforms with regard to this decision which was placed on the website of the Helsinki Group (Editor of PL)
 The author is using a play on words, since the standard targets of certain rabid bigots in Ukraine and Russia has often been “Jewish-Masonic conspiracies”. It is not a direct quote. (translators note)
 Serhiy Holovaty gave an interview to “Ukrainska Pravda” on 21.11.05 (www. pravda.com.ua) in which he accused the court of procedural irregularities in not noting the main arguments and in not listening to all parties. He suggested that the new Prosecutor General should launch criminal proceedings against the three judges of the Shevchenkivsk court for issuing a decision they knew to be incorrect and said that they were being protected by a “mafia of judges”. (translators note)