Razumkov expert: More politics than law in Ukraine’s judicial system

  Yury Yakymenko, Director of Political – Legal Programmes for the Razumkov Centre sees a clear political motive in both the new murder charges against Yulia Tymoshenko and the supposed new evidence against Kuchma over the killing of Georgy Gongadze.  The implications for the country of the courts being able to override the Constitution and legislation and strip MPs of their mandate are so great that he does not believe the recent ruling from the High Administrative Court will result in the two MPs losing their mandate.

In a discussion on the influence of politics on Ukraine’s judicial system, Yury Yakymenko, Director of Political – Legal Programmes for the Razumkov Centre was asked how noticeable the political element was in the new murder charges against imprisoned former Prime Minister Yulia Tymoshenko.

“We should perhaps begin with the fact that the courts at present do not only influence politics, they effectively influence the country’s geopolitical choice and the possibility of achieving what is in the national interest. This is because the court trials over recent years are directly linked with the possibility of positive steps towards Ukraine’s European integration.”

“The political component in this Tymoshenko case is as obvious as it was in the first case.”

Yakymenko believes there are different motives at play in the accusations against Yulia Tymoshenko of having ordered the killing in 2006 of MP and Donetsk businessman Eugene Shcherban.  The first, mentioned by the interviewer, is “to discredit Yulia Tymoshenko as a politician through the unsavoury information which through one way or another gets into the press.”

He says that the second element is for foreign consumption because this case and these charges are more serious and grave than in the previous case.  This is clearly focused on foreign observers, he stresses, and aimed at trying to convince them that Tymoshenko is where she should be, and to thus remove some of the demands to stop selective prosecutions since these obviously include the release of Yulia Tymoshenko.

Asked whether the judicial reforms of 2010 had not reduced the impact of parliament on the formation of courts, Yakymenko pointed out that administrative posts are made by the High Council of Justice (whose increased role has led to statements of concern, both within Ukraine and from the Council of Europe – translator).  However giving judges indefinite tenure remains the prerogative of the Verkhovna Rada so that influence has remained.

“However we’re probably talking about the dependence of the courts on those in power as a whole. You can speak of different branches and different mechanisms for making the courts dependent. However under the present conditions, the courts are indeed not independent. They can’t therefore be an independent factor and autonomous player. “

He points to their public opinion surveys that have found that only 22% of people believe the judiciary is independent.

One can therefore says that there are possible uses of the court to achieve political aims in this case.

Asked about the recent claims made by Deputy Prosecutor General Kuzmin that they have new evidence of former President Kuchma’s involvement in the killing of journalist Gongadze, Yakymenko is quite categorical.

“There there’s of course both politics and law, but much more politics”.

As to why this has arisen specifically now, he suggests that it was an attempt to show that it’s not just Tymoshenko who’s facing prosecution. The cases, he points out, are rather different and the Gongadze murder remains for the international community a black spot for Ukraine.

In the context of political influence on the court, Yakymenko was asked about the High Administrative Court ruling which stripped two MPs of their mandate. There is such a ruling, but a decision in addition needs to be passed either by the Central Election Commission or the Verkhovna Rada.

Yakymenko calls it as rather strange decision and says that in his memory it is the first time that a court ruling has stripped MPs of their mandate after they had already become MPs in accordance with the procedure stipulated in the Constitution and legislation.

He believes it is not possible to revoke the acts confirming that they had taken their oat.

The legal consequences are serious, since a court ruling is effectively being placed highter than the norms of the Constitution. This would mean that the country is being governed by court rulings.  For this reason, he says, he does not believe that the story will develop to the point of the two MPs actually losing their mandates.

From a much longer discussion with Stepan Havrish as well on Radio Svoboda