19.04.2013 | Halya Coynash

Judicial Vagaries


Yury Odarchenko

In the last week two Ukrainian administrative courts have rejected civil suits brought by private claimants from Donetsk. The second ruling on Wednesday which turned down an application to deprive opposition MP Yury Odarchenko of his mandate was unexpected, although entirely in keeping with Ukraine’s Constitution and legislation. The first, unfortunately, was neither unexpected, nor constitutional.

On 12 April the High Administrative Court found that the 4 April “outreach” parliamentary session held by members of the ruling majority on Bankova St and not at the Verkhovna Rada had been entitled to pass laws.  Its argument was that over half of the total number of MPs had been present, with all else mere detail. The Court saw fit to ignore, among other things, the fact that opposition MPs had been prevented from entering this novel “parliament”.  Numerically the opposition would have been unable to stop the adoption or rejection of the travelling parliament’s amendments to the Budget and other corruption-linked laws. They should, however, have had the opportunity to express the concerns, and to count the number of physically present MPs which is likely to have been much lower than the number whose cards were used for such unconstitutional “votes”.

On 6 March the same High Administrative Court had stripped opposition MP and defender (not hired lawyer) of imprisoned former Prime Minister Yulia Tymoshenko of his parliamentary mandate.  The court was supposedly convinced that Serhiy Vlasenko had breached regulations and engaged in work as a defence lawyer while an MP.  In an entirely futile attempt to demonstrate impartial observance of regulations, a Party of the Regions MP – Andriy Vereyevsky - was also offered in sacrifice. 

These rulings were final and not subject to appeal. They left a highly vocal member of the opposition and spokesperson for Tymoshenko without parliamentary mandate and immunity from prosecution.

There had been a dress rehearsal on 8 February with the same High Administrative Court “cancelling as inaccurate” the election results in two single-mandate electoral districts.  The opposition had then claimed that the move was in reprisal against MPs who had not allied themselves with the Party of the Regions.  The two MPs – Oleksandr Dombrovsky and Pavlo Baloha – have asserted that the court ruling was unconstitutional.  This view is shared by Andriy Mahera, Deputy Head of the Central Election Commission. A judgement is now due from the Constitutional Court whose illustrious members have in recent years also been noted for their original interpretations of Ukraine’s Main Law.

It was the District Administrative Court in Kyiv which on Wednesday refused to strip Yury Odarchenko of his mandate. 

The pessimism regarding this new attempt to get an MP’s mandate removed seems to have been shared by Yury Odarchenko himself.  His Batkivshchyna Party had been blunt in labelling the court case pressure on an MP and head of the Kyiv branch of Batkivshchyna on the eve of protests planned in the capital.

The anonymity of the Donetsk citizen in this case, Serhiy Horbaty, who did not appear in court to explain his grounds for concern only fuelled such suspicions. 

The arguments for stripping the MP of his mandate were poor, but then so were those against Vlasenko, and we have seen the result.   It would also be unwise to suspect the District Administrative Court in Kyiv of a greater commitment to Ukraine’s Constitution.  Its record on ignoring the right to freedom of peaceful assembly has earned it note for the second most absurd court ban in 2012, .

It is hard to say why the court rejected this latest attempt.  It is not inconceivable that the whole stunt was intended to somehow demonstrate that the courts scrupulously weigh up each case and that Vlasenko’s was different.

Apparent compliance with the law after all cost those pulling the strings little.  The flagrant interference by Ukrainian courts in the electoral system and distortion of the will of the voters over recent months have shown what measures can be applied when required. And while spring may be in the air, and Yury Lutsenko at liberty, the track record shown by Ukrainian courts should nip in the bud any innocent confidence that the law will reign supreme. 

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