Ukraines new European Court Judge – politician, public official or lawyer?
A “Whos who in Ukraine” may not seem a guaranteed top seller, except maybe in the detective novel genre, but one wonders who would be intrepid enough to write it. In recent days Hanne Severinsen, PACE Rapporteur expressed concern over the merging of business and politics in Ukraine. Her concern is well-founded and shared.
Other spheres are, however, also not untouched. Human rights organizations have long warned that the divide between different branches of power in the country is becoming increasingly blurred. The degree to which all aspects of Ukrainian life, and most worryingly, the judiciary, have become politicized is undermining Ukraines development as a law-based society.
It is no accident that the most sober of us can blink in bemusement as we gaze on the masquerade which goes by the name of Ukrainian reality. The mask is removed and we have a Human Rights Ombudsperson, then lo and behold, it reveals an MP. Or what about the bewilderingly deft changes in shade – orange, blue … and what next?
It is precisely this concern over what could come next which has prompted this text. What can we expect when seemingly standard and uncontroversial entries on CVs or the behaviour of different public bodies suddenly leave us entirely at a loss to know what to write?
The most important judicial body in the land – the Constitutional Court – is at present almost entirely discredited, and any judgments it now issues are likely to be seen as political and rejected by those whose political tastes differ. Since the President issued his first Decree dissolving parliament, there have been a number of court rulings, some of them flagrantly overstepping their authority, and all with a clear political bent.
All of this is seriously undermining peoples confidence in the rule of law. It is an extremely disturbing development which requires separate and urgent attention. Of immediate concern to us here is the question of whether a prominent politician can go on to become a judge, and not just any judge, but a Judge of the European Court of Human Rights [hereafter the European Court].*
We would first stress that none of us wishes to deny any person their democratic right to stand for electoral office. We would, however, respectfully remind all members of the judiciary, the present Human Rights Ombudsperson, and many others, that life is not a masquerade ball, and you must not expect to be able to alternate masks as the mood takes you.
In one specific case we see a rather different scenario where one of the candidates for the undoubtedly vital position of European Court Judge is a politician – Serhiy Holovaty who is presently seeking re-election as National Deputy [MP]. .
We would in no way wish to criticize Mr Holovaty or in any way question his professional ability as a lawyer. We are, nonetheless, convinced that it would be entirely inappropriate for Ukraine to be represented at the European Court by a politician.
Recent events in Ukraine crystallize our doubts. The very nature of politics is, for better or worse, extremely fluid and often strongly influenced by issues of expediency. An individual politician may be constrained by his or her political faction or sometimes by other factors.
Mr Holovaty, for example, made certain decisions in April this year which would appear to have been at least partially influenced by his political assessment of the unfolding situation. He has been a politician since before Independence, being in his own words expelled from the Communist Party for supporting an anti-communist party in 1991. He had been a Minister of Justice in 2005, and was a member of “Nasha Ukraina” [Our Ukraine] when, in April 2007 President Yushchenko issued his Decree dissolving parliament. Mr Holovaty attended the session in the Verkhovna Rada which refused to comply with this Decree. Under the circumstances it seems appropriate to quote his words spoken during the dissolved parliaments session on 5 April.
S.P. Holovaty [Nasha Ukraina] spoke of the possible arrest of some deputies on the instruction of the Presidents Secretariat. He said that “from more than reliable sources I have learned that the Presidents Secretariat has given the Supreme Court instructions to study the legal situation: on what grounds it will be possible to begin arresting National Deputies” …. “Im ready to remain here under the concrete and glass ruins, under Yushchenkos tanks, to defend the Ukrainian Constitution!” **
Mr Holovaty did not name his “more than reliable sources”. As we know, there were no tanks, no arrests and no bloodshed. We would suggest that such remarks in an undoubtedly volatile situation were at very least irresponsible.
Mr Holovaty is presently standing for election in the candidate list for the Party of the Regions, having been expelled from Nasha Ukraina. This is his political decision, and we would not venture to question his right to take such decisions. It is for the voters to give their assessment as to who and which political factions best represent their interests.
The problem for us is that, as mentioned, Serhiy Holovaty is also one of the three candidates for the position of Judge of the European Court of Human Rights.
We cannot overstate the enormous significance for Ukraine of this Court. Its judgments are vital not only for redressing the violated rights of individual Ukrainian nationals, but for highlighting shortcomings in Ukrainian legislation and judicial practice which need to be rectified. The Kharkiv Human Rights Protection Group has been actively involved in training and other work aimed at implementing and developing awareness among Ukrainian judges of European Court judgments. We can already cite positive and cheering examples of where European Court case law has been applied in domestic courts.
All of this is vital for the development of a law-based democratic society, and we are therefore extremely concerned to ensure that the Court continues to enjoy the trust and respect not only of the human rights community in Ukraine, but of the wider Ukrainian public.
We would wish Serhiy Holovaty well in his political career but respectfully suggest that the further development of a law-based and human rights oriented society in Ukraine can best be facilitated by choosing the candidate who has no connection with either politics or public office in Ukraine.
* The election of a new Judge from Ukraine will take place at a PACE session in early October. Ukraine has put forward three candidates: politician Serhiy Holovaty; Deputy Minister of Internal Affairs Vasyl Marmazov and bar lawyer and legal secretary to the European Court Anna Yudkivska.