Administrative Pressure on Judges continues
Arkadiy Buschenko, lawyer, Chair of the Board of Ukrainian Helsinki Human Rights Union
The Ukrainian Helsinki Human Rights Union recently issued a statement stressing the inadmissibility of interference by the executive branch of power on the work of judges. The Deputy Prosecutor General Mykhailo Havrylyuk, being displeased with a ruling from a panel of judges of the Kyiv Court of Appeal, had decided that this was sufficient grounds for dismissing the judges for infringement of their oath. He would seem to have forgotten that judges did not swear loyalty to the Prosecutor’s Office.
The Strategic Litigations Centre has learned of a new case where administrative pressure has been brought to bear on a judge whose ruling this time was not to the liking of the court president.
It is extraordinary that in his submission to the High Council of Justice, the court president states that the “courts exercise justice autonomously and independently of any influence”. What is this attempt to have a judge dismissed for a ruling which the president didn’t like but a means of exerting influence on a judge and his exercising of justice?
It should be noted that the court president accuses the judge of going beyond the boundaries of his competence since in the course of the court examination of a complaint against a decision to reinitiate a criminal investigation, the court is not entitled to consider and in advance judge on those issues which were decided upon by the judge during the examination of the case on its merits.
Yet what is the court president doing when in the very next paragraph he writes that “the material which was the basis for initiating the criminal investigation contains facts which indicate that R’s actions bore the hallmarks of a crime”. Thus, in the view of the court president, to say that there are grounds for criminal prosecution is not an assessment of the evidence, but if you say that there are no grounds for criminal prosecution, then that is an assessment of the evidence and infringement of ones oath.
This is merely one brief example of the absurdity of the submission made by the president of the Shevchenkivsky District Court. It is given to show that the question of what is, or is not, an assessment of evidence and where the boundaries lie of the court’s competence, is too complex to be resolved by means of an administrative “carrot and stick”. Such attempts are all too reminiscent of the notorious attempts to resolve disputes among geneticists, physicists and other scientists with the help of the NKVD.
A nice touch is seen in the fact that the judge’s ruling which so annoyed the court president was revoked and the case returned to the same Shevchenkivsky Court. Can anyone doubt what ruling the next judge called upon to examine this case should take in order to avoid the issue of his or her dismissal being raised?
Finally, in the court ruling which annoyed the president there is an extract which is seldom to be found in domestic court rulings. The judge did not take into consideration evidence received with violation of the law. This is what the judge wrote:
“the grounds for initiating a criminal investigation were, in particular, factual data received during the period from 14.03.11 through 29.03.11 when R was first detained without procedural recording of the fact, and latter unlawfully held under arrest on the pretext of an administrative offence set out in Article 185 of the Code of Administrative Offences. In fact the detention without procedural recording, and administrative arrest were used by the detective inquiry body and criminal investigation department to gather factual data to initiate the said criminal investigation”. This in the view of the court places in doubt the lawfulness of the sources of the data obtained for the initiating of this criminal investigation.
There is no reference to the European Convention on Human Rights, but the fact that it fully complies with the spirit of the Convention is easy to check.
One can see a clear tendency: the submission from the Deputy Prosecutor General also concerned a ruling which was based specifically on the Convention on Human Rights.
One often hears that judges and prosecutors don’t have enough information and education to understand the Convention and in general the concept of human rights. However such submissions to the High Council of Justice suggest something quite different. They do not only understand the letter of the Convention very well, but also its spirit. We would reiterate that in neither of these “seditious” rulings was the Convention mentioned, yet those supposedly “defending” judicial independence immediately recognized it. This leads one to thing that those defenders of the purity of the judge corps cannot stomach the Convention and are consciously opposing its application.