So what does the European Court of Human Rights mean for Ukraine?
Put most succinctly, a lot.
The Court in Strasbourg has become part of a catchphrase. “Ill take them to the European Court!”, so many vow in heated moments. It is of course not so easy, not necessarily so satisfying, and that is as it should be.
However, the more glaring the problems in a countrys court system, the greater the need for the ultimate protection of our rights provided by the Court in Strasbourg.
The recent damp squib we saw with the Constitutional Courts review of the Presidents Decrees dissolving parliament is only one example, albeit a highly telling one, of the ailments besetting the judiciary. The main symptom of this illness is an unhealthy mixture of politics and law, which in the given case has led to convulsions, diseased outpouring of spleen and an apparent blood clot.
With a judgment from the Constitutional Court now highly improbable before the elections, it would be useful to consider the events of April and May. The complaints by 5 Judges of the Court that they were being subjected to political pressure were condemned by two politicians – Serhiy Holovaty, who effectively joined the coalition following the dissolution of parliament and Serhiy Kivalov, National Deputy for the Party of the Regions and former head of the Central Election Commission which gave the electoral “results” eventually overturned by the Supreme Court in 2004. Both immediately and therefore presumably without investigation called the Judges allegations evidence of a lack of professionalism and a sign that they were being drawn into politics.
Mr Holovatys reliance on intuitive conclusions rather than facts which can be substantiated was seen on many occasions in his previous political role as Minister of Justice representing “Nasha Ukraina” [- “Our Ukraine”; one of the “orange” factions]. It is interesting that when Mr Piskun was reinstated by a judge as Prosecutor General (after being dismissed by President Yushchenko), Mr Holovaty also suggested political motives, and said that as member of the High Council of Justice, he intended to initiate a review of the judges motives. He then alleged: “Either this was a judicial mistake or something else”.*
There are, we believe, two points here, both with direct impact on the role of the European Court of Human Rights. The first is the degree to which courts in Ukraine are indeed influenced by political motives or subjected to political pressure. Over recent months it has become a regular occurrence for courts to pass judgments they have no jurisdiction to make or to overturn lower court rulings with the reasons raising questions.
Questions or ironic smirks, and these bring us to the second disturbing aspect of the present situation. It has become standard for politicians to accuse the judiciary at all levels of political motives for their judgments. After the Verkhovna Rada effectively blocked the Constitutional Court from functioning for eight months for its own political gain, the events of the last months and wild recriminations have also silenced the Court, which has no chance of passing any judgment now without being labelled politically biased.
What this is doing for the confidence of ordinary members of the public in their judiciary is not difficult to imagine. It is not, incidentally, doing much for their opinion of politicians either! We would question whether any member of the countrys legislative body has the right to behave in such irresponsible manner. We must however state absolutely categorically that we cannot find such behaviour from Serhiy Holovaty, a candidate for the post of Judge of the European Court of Human Rights acceptable.
Ukrainians turn to Strasbourg because the courts in Ukraine all too often let them down. They seek justice at the European Court because Ukrainian politicians erode their confidence in their own justice system.
It is surely therefore not surprising that so many Ukrainians have emphatically registered their opposition to any politician becoming Judge of this most important court.