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Appeal to the Parliamentary Assembly of the Council of Europe

21.09.2007

The appeal here is available in Ukrainian at: http://www2.maidan.org.ua/news/index.php3?bn=maidan_petit&key=1189613430&action=view  The number of organizations and individuals who have signed in just over a week, we believe, speaks volumes.

To the Deputies of the Parliamentary Assembly of the Council of Europe

We are writing with regard to the coming election of a new European Court of Human Rights Judge from Ukraine. 

We have been observing with the greatest concern the increasing politicization of Ukrainian life, especially the judiciary, and are aware that this is a trend being followed closely by the Council of Europe.  We very much appreciated the public stand taken by PACE representatives earlier this year when a politically engaged individual was put forward as candidate for Human Rights Ombudsperson.  Despite an unprecedented campaign by civic and human rights organizations, politicians had their way and Ms Karpachova was elected.

We are unfortunately seeing a similar situation again over the position of European Court Judge.  Given the recent events in Ukraine, as well as the extraordinary political manoeuvres over the Ombudsperson’s election, we are especially disturbed to see another politician aspiring to a position which by definition requires absolute independence, impartiality and commitment to legal principles rather than political considerations.  Serhiy Holovaty is a high-profile politician who has been in parliament in all five terms and is presently standing for election.

We would in no way deny any person their democratic right to stand for electoral office nor obviously criticize the important role politicians play in any society.  We also would have no 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 politicians are often constrained by their factions, and influenced by issues of political expediency. 

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.  In April 2005, Mr Holovaty, a National Deputy, refused to comply with the President’s Decree dissolving parliament, stating: “I refuse to obey your criminal anti-constitutional decree!” In so doing Mr Holovaty effectively assumed the authority of the Constitutional Court of Ukraine, the only judicial body which has the right to judge the constitutionality of the President’s decrees. We believe that this stand taken by Holovaty showed lack of respect for the principle of the rule of law and this is entirely unacceptable for a candidate for the position of European Court of Human Rights Judge. During 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 parliament’s session on 5 April.

S.P. Holovaty [Nasha Ukraina] spoke of the possible arrest of some deputies on the instruction of the President’s Secretariat. He said that “from more than reliable sources I have learned that the President’s Secretariat has given the Supreme Court instructions to study the legal situation: on what grounds it will be possible to begin arresting National Deputies” …. “I’m ready to remain here under the concrete and glass ruins, under Yushchenko’s 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.

After his expulsion from “Nasha Ukraina”, Serhiy Holovaty changed his party allegiance for the fifth time (having first been in the Communist Party, RUKH and Yulia Tymoshenko’s Bloc) and is presently standing for election in the candidate list for the Party of the Regions.  This is his political choice, and we would not venture to question his right to take such decisions. It is for the voters to give their assessment as to which political factions best represent their interests.

With regard to Mr Holovaty’s candidacy for the post of European Court Judge, we are simply unable to adopt such a neutral position.

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.  We can already cite cheering examples of where European Court case law has been applied in domestic courts.

Given recent developments in Ukraine where even the Constitutional Court stands seriously discredited and its judges are seen by many members of the public as political puppets, it would be tragic if such suspicions were to arise in connection with the European Court of Human Rights.

It is vital for the development of a law-based democratic society 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 chosen career. We are nonetheless firmly convinced that the further development of a law-based and human rights oriented society in Ukraine can best be facilitated by choosing a candidate who is not directly involved in politics.

*”  http://kmu.gov.ua/control/uk/publish/printable_article?art_id=74215600  

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