Wednesday, April 28, 2010

Justice restored: Stanik reappointed to Constitutional Court

Ukraine's President,Viktor Yanukovych, has passed a decree reinstating the appointment of Ms Susan Stanik to Ukraine's Constitutional Court.

Yanukovych's decree re-instating Ms Stanik to the bench has righted a wrong and injustice undertaken by Ukraine's former president.

Update: Stanik resigns.

Ms  Stanik along with two other judges were summarily dismissed by Ukraine's former President, Viktor Yushchenko, in May 2007.  The actions of  Yushchenko were designed to prevent the Constitutional Court from ruling against his decree of April 2, 2007 dismissing Ukraine's previous Parliament.

Yushchenko's dismissal of the three Judges was in direct breach of Ukraine's Constitution in that by dismissing the three judges Yushchenko had interfered with the independence of Ukraine's Judiciary.

Viktor Yushchenko as President had no authority to dismiss members of the Constitutional Court.

Yushchenko speciously alleged at the time that the judges were dismissed for a breach of oath.  In doing so Yushchenko denied all three the right of natural justice and their right to face the allegations made against them though a proper judicial process

Two of the judges dismissed later resigned under pressure and Susan Stanik stood her ground and challenged the President's actions in Ukraine's Administrative court of Appeal winning her appeal.

Vikor Yushchenko was ordered by the administrative court of appeal to reinstate Susan Stanik as the Court found that Yushchenko''s actions were illegal.  Yushchenko responded by extraordinarily  rescinding the decree made by Ukraine's former President, Leonid Kuchma, that originally appointed Susan Stanik as a Constitutional Judge. An act that in itself was highly questionable and demonstrated absolute contempt undermining public confidence in the Judicial process.

Under Ukraine's constitution the President holds absolute immunity against prosecution and the only means of impeachment is with tech support of 300 or more members of Ukraine's parliamentary assembly.

Any allegation of misconduct and breach of oath of a Judge should have been first considered by the Council of Justice, who on finding that their existed a case to be answered, would then recommend the dismissal and prosecution of a Judge. The Parliament would then need to consent to the matter being brought to trial.

Viktor Yushchenko, as President and Guardian of Ukraine's Constitution, breached his oath by failing to uphold this very important Constitutional provision and division of powers between the executive and the judiciary.  The Constitutional Court never ruled on the question of constitutionality of Yushchenko's actions. 

In any western democracy the president would have been facing impeachment for such actions.

The authority of the President to dismiss Ukraine's parliament was challenged in Ukraine's Constitutional Court amidst concern that the President's actions were unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.  Yushchenko's actions had caused seven months of political and civil unrest.

On April 19, 2007 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides. ”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”