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24.04.2010 | Ludmila Koval

Intrigue remains yet there is a choice

   

The three-year saga over the election of a Judge to the European Court of Human Rights from Ukraine is finally drawing to a close.

After the ECHR Grand Chamber issued its Advisory Opinion on 22 January 2010, the then Minister of Justice Mykola Onyshchuk, keeping his word to implement any judgment from the European Court, during his last days as Minister, filled the candidate list with a third candidate and sent this to the Parliamentary Assembly of the Council of Europe [PACE].

On 14 April three candidates – Serhiy Holovaty, Anna Yudkivska and Stanislav Shevchuk – were interviewed by the PACE Election Committee, and the decision is now up to the Parliamentary Assembly which is due to vote for Ukraine’s Judge to the Court on 27 April.  Who will they choose?

Each candidate has invaluable experience. For example, Serhiy Holovaty, a specialist in international law, with a PhD in Law, National Deputy [MP] of all six parliaments, has twice been Minister of Justice. As the permanent and unchanged member of Ukraine’s Parliamentary Delegation to PACE since 1995, he has not only chaired various PACE committees, but has several times been Vice President of the Parliamentary Assembly. From 1995 to 2000, and in 2005 he was a member of the Venice Commission. He is at present a National Deputy, since 2007 from the Party of the Regions, and in PACE the Third Deputy Chair of the Committee on Legal Matters. He is a lawyer who has found his role in politics. He always uncompromisingly upholds his views, although his judgments are often harsh and categorical. And although in the 20 years of his parliamentary activity he has been in virtually every faction, his aim is noble: “I have been interested in what happens in Ukraine since March 1990 when I was elected to the Verkhovna Rada of the Ukrainian SSR, through all the stages of its becoming an independent state and its development up to the present day, taking part in this.

I was interested in one thing: whether Ukraine would develop towards affirming the law, Constitution, democracy, in the direction of affirming in political life moral values and ethics, or whether it would slide towards chaos, lies, decent, corruption, “deals at the bazaar” in parliament, negating the institutes of power, degradation and so forth.

I would like to see Ukraine civilized.

Unfortunately the world and in the first instance Europe has today turned away form Europe, having understood that it’s a hopeless case.

Ukraine itself not as a country, not as a state in the person of the head of this state over the last few years, these including President Yushchenko and Prime Minister Tymoshenko and Speaker Yatsenyuk, have unfortunately dealt a huge blow to Ukraine’s image …” (from a speech on Radio Svoboda, 11.11.2008 .www.radiosvoboda.org).

Mr Holovaty is often not understood in Ukraine. On the other hand his is liked and supported in the Parliamentary Assembly of the Council of Europe. If he is elected Judge of the European Court, Ukraine will lose a colourful politician since as representative of Ukraine in the European Court of Human Rights, even from ethical considerations Mr Holovaty would be forced to refrain from emotional assessments of the leaders of Ukraine.

Stanislav Shechuk’s list of achievements is somewhat shorter than that of Mr Holovaty. However in his 39 years graduate of the Yaroslav Mudry National Law Academy is already a Doctor of Law and Professor of the Department of Public Law at the International Solomon University. He not only lectures at the university, but is in charge of the Department of the Rule of Law of the OSCE Project Coordinator in Ukraine. Specializing in European Law, Mr Shevchuk has had working practice in the USA, the United Kingdom, Germany and Belgium. And the most important thing is that he has already worked as the European Court Judge from Ukraine on an ad hoc basis, from January to September 2009.

A journalist once described how in Stanislav Shevchuk’s office in a prominent place there is a portrait of John F. Kennedy. Asked why, he explained: “My psychological type is Kennedy. He is a personality, a certain guiding point. However that does not mean that I’m an American agent. My intellectual guiding points are the Ukrainian Professors Petro Martynenko, Mykola Kozyubra, Volodymyr Butkevych. If we have people of that calibre, Ukraine’s legal system has a future”. (gazeta.ua).

The third candidate stands out not so much because she is a woman, but because Anna Yudkivska has travelled a path from human rights defender to lawyer for the European Court of Human Rights, via work as a bar lawyer and the court of arbitration in which she worked as a judge. That is, when submitting her application in the national contest to choose candidates for the ECHR Judge position, she already had a very considerable amount of professional experience of human rights defence, gained not behind the scenes in parliament, nor at a desk nor at public tribunals. Anna Yudkivska is convinced, I quote “Experience, a firm position and belief that what you are doing is correct comes after months and years of your OWN attempts to break through the deaf wall of the Ukrainian justice system, save innocent people and help at least in some way those who have ended up in a different position. This experience is gained in many hours of waiting for an investigator or the judge, in talking with the defendant in conditions where conversations in the SIZO [remand unit] visiting rooms are listened into, in reading case files in the dark corridors of court premises without proper conditions, in the futile attempts to break the closed circle of police – prosecutor – court, etc.” (http://hradvocate.info/aboutUkr.htm ).

Anna Yudkivska began her human rights activities in 1996. Her first teachers were Marek Nowytski, legend of the human rights movement and most world-renowned teacher of human rights and Grigory Ginzburg, an outstanding Ukrainian bar lawyer.  Back working as a bar lawyer in a Pechersky team of lawyers, she developed her knowledge of the European Convention and European Court case law at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Sweden), and then had practice on international court defence of human rights in the Netherlands. In parallel with this, she helped leading human rights organizations in Ukraine. In a project of the Kharkiv Human Rights Group she was a lawyer in cases supported by the Fund for the Professional Defence of Victims of Torture, and also a lawyer for the Legal Assistance Fund for Victims of Human Rights Abuse of the Ukrainian Helsinki Human Rights Union. She defended the interests of refugees, victims of political repression, the disabled, victims of torture, socially vulnerable people and others. She also represented her clients at the European Court of Human Rights.  Two years ago Anna Yudkivska defended her PhD thesis on the presumption of innocence in which, based among other things on her own experience as a bar lawyer, she demonstrated that the presumption of innocence is the alpha and omega of all other procedural guarantees for the accused in a criminal prosecution. She is now working on her (higher) doctoral thesis, researching the question of how a judge’s personal convictions and the external circumstances influence their rulings, as well as how these convictions are formed and change with time.

In preparing this article, among a huge amount of interesting information on Ms Yudkivska’s personal website (hradvocate.info), I found this interesting view which she expresses: “Judges are not born: and you don’t learn to be a judge anywhere. To be worthy of this post you have to like the person very much and assess the circumstances of each case through the prism of this love and respect for the person. This love and the relevant experience develop intuition regarding what is good and what bad, even where there is no specific knowledge”.

Anna Yudkivska is widely known in professional circles. Colleagues value and respect her for her high degree of professionalism, exceptional honesty and commitment to the case which she is involved in. Her candidacy is actively supported by well-known human rights defenders, lawyers and former Soviet dissidents who continue to write to PACE.

All three candidates are undoubtedly worthy contenders for the post of European Court Judge. Yet nevertheless, due to the excessive politicization by both sides of the process: the intrigue around the elections remains. If Ukraine, in implementing the decision of the European Court, has put aside its political phobia questions remain regarding the ability of PACE to make a just decision. For example, it is not known to what degree PACE Delegates are ready to objectively assess the professionalism of all candidates, taking into account ten years of knowing one of them personally. Will the vote for the three candidates not turn into a vote for or against this one candidate?  Will that in turn be fair to the other candidates and to Ukraine?

Lyudmila Koval, Kharkiv Human Rights Group

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