19 March 2014The recent demonstrations in Kyiv Maidan, Ukraine resulted in the deaths of over 100 demonstrators and members of the police unit ‘Berkyt’ tasked with restoring law and order. On 12 March 2014, the Kyiv Regional Administrative Court following two separate initiating proceedings declared that the police unit Berkyt had no power to act at any time since its establishment in 2004.[1] This was despite the fact that a ministerial order of 25 February 2014 had disbanded the police unit Berkyt.
One may wonder why it took so long to initiate a judicial review of the ministerial orders under which the riot police Berkyt was created.
The decision of the court is therefore of concern. On the one hand, a Judiciary that allowed the former Prime Minister Yulia Tymoshenko[2] to receive a trial that gave lip service to any form of procedural fairness let alone allowed government standing to prosecute a case with such vigour for a ‘crime’ involving a ‘bad gas deal’ against an opposition leader[3] that ultimately nearly completely destroyed her health is nothing short of terrifying.
That same Judiciary is now purporting to dispense justice against the riot police Berkyt. How terrifying is that? Justice should not be used as a ‘tool’ of the government of the day.
Currently, Russian speaking Ukrainians are alleged to be threatened and or suppressed by the newly installed government of Ukraine. This is despite the fact that Section 24 of the Constitution of Ukraine guarantees equal constitutional rights and freedoms to all citizens of Ukraine regardless of political persuasion, race or religion, ethnical or social origin, their wealth, place of residence, or language.
Yet there is a perception of fear and mistrust of politicians and the government of Ukraine to uphold the rule of law. An independent Judiciary should impartially uphold the rule of law in circumstances where the elected representatives, government executives or administration, corporations or individuals act outside the Constitution of a sovereign country.
On 8 April 2014, the Ukrainian Verhovna Rada (Parliament) passed an act to restore the trust in the Judiciary of Ukraine.[4] This act purports to ‘purify’ the Judiciary by dismissing the heads and deputy heads of the specialised courts, appellate courts and local courts. The act also establishes a special temporary review committee to review judges who made decisions related to the Maidan demonstrations and decisions that have been challenged by the European Court of Human Rights. Not withstanding its aim, this act has been criticised by sections of the international legal community for ‘potential bias to dispense justice’.[5]
In order that the efforts of the good people of Maidan and for that matter all of Ukraine are not in vain, during these troubled times at the very least the Judiciary of Ukraine should not ‘dispense’ justice in respect to events that occurred in Maidan, as well as the events currently taking place in the regions of Ukraine.
Instead, Ukraine should ratify the United Nations Treaty of Rome to invoke the jurisdiction of the International Criminal Court.[6] This would enable the International Criminal Court to administer justice for crimes against humanity and or aggression as defined in Article 7 and 8bis3 of the Rome Statute that were alleged to have been committed at Maidan and for that matter in all other regions where Ukrainian citizens have been threatened or alleged to be threatened due to race, political persuasion, religion or language.
Notably, on 25 February 2014 Ukraine has accepted jurisdiction of the International Criminal Court to probe alleged crimes against humanity committed by state officials of Ukraine between 21 November 2013 and 22 February 2014.[7]
Following this acceptance and lodgement by the Government of Ukraine of a declaration under Article 12(3) of the Rome Statute, on 25 April 2014 the prosecutor of the International Criminal Court, Fatou Bensouda, opened a preliminary investigation to consider the issues of jurisdiction, admissibility and the interests of justice to establish whether there is a reasonable basis for an investigation of the International Criminal Court.[8]
Justice administered through the International Criminal Court in respect to the events of the Maidan demonstrations and the current events in the regions of Ukraine could serve to demonstrate that the rule of law in Ukraine will not be used as a means of coercion against any citizen of Ukraine because of their political persuasion, religion, ethnicity, social origin, wealth or language. As such it could serve to de-escalate tensions that currently exist in Ukraine. It may even help President Putin sleep at night in the knowledge that Russian speaking Ukrainians are protected from ‘extremists and neo-Nazis’ of the Far Right.[9]
Dispensing justice through an international court for crimes against humanity is not something new to Ukraine. The steppes of Ukraine are filled with the bodies of millions[10] of civilians and military of Ukrainian, Russian and German descent that died in World War II. These chilling statistics do not take into account the many more Ukrainians who were deported to Germany under the Nazi Forced Labour Program and died in German concentration camps or during Allied heavy bombing campaigns. In Nuremberg in the late 1940’s, in the forerunner of the current International Criminal Court those responsible for the killing frenzy in Ukraine during World War II were prosecuted.
Ukraine is now facing an election on 25 May 2014. The election needs to run fairly without exploitation and impartially. Currently, there are 23 candidates standing for President. Renat Kuzmin, the former First Deputy Attorney General of Ukraine who supervised the prosecution of Yulia Tymoshenko, is one of the candidates. His chances to win are minimal. One queries his motives. Is he seeking immunity up until 25 May 2014?
If a referendum is to be held in Ukraine the referendum should be held after informed debate and with proper choice to be made, eg choice between federal or unitary state properly explained and debated before the referendum is finally held. Claims with respect to the legality of the referendum processes should be decided by an independent Judiciary.
Election scrutiny and referendums require an independent Judiciary to ensure that the principles of justice and impartiality are adhered to such activities.
Furthermore, if any legislation is to be passed in Ukraine informed debate and due process are needed to allow the government, elected representatives and the citizens of Ukraine understand what is being proposed and what may require amendment before a Bill is passed. This does not occur in Ukraine.
For example, on 16 January 2014 the Verhovna Rada of Ukraine passed eleven Bills (Black Thursday Enactments) allegedly with various breaches of the standing rules and regulations of the Verhovna Rada with respect to their enactment and without any meaningful debate.[11] At the time, the Black Thursday Enactments were heavily criticised, in respect to various breaches of human rights as expressly set out in the Constitution of Ukraine. Shortly thereafter, on 28 January 2014 nine of the eleven Black Thursday Enactments were repealed during extraordinary session of the Verhovna Rada again without any adequate debate.[12]
If the process to enact new legislation is not being followed, an independent Judiciary should decide whether due process has been followed. Sadly, given the events before and after Maidan, the Judiciary and the Legislature of Ukraine need to develop standards of established principles of due process as outlined by the European Union.
Fortunately however, Ukraine has signed the European Union (EU) Association Agreement. Phase one of the EU Association Agreement deals with the requirements to enter the EU such as electoral rights, human rights and the establishment of the rule of law. But the processes outlined in the EU Association Agreement will take time to implement.
How the Ukrainian people will finally find faith in their own government, administration and elected representatives let alone the Judiciary is the subject of another day, provided Ukraine can survive as a sovereign country.
Survival starts by stopping the aggression in the regions of Ukraine. This can only be done by involving the international community and international observers under the auspices of the Organization for Security and Co-operation in Europe (OSCE).[13] Any investigation and prosecution of any acts capable of being crimes of aggression or crimes against humanity should be under the jurisdiction of the International Criminal Court.
If after Maidan Justice is meant to have any meaning in Ukraine – ‘Justice’ should not be seen to be a tool of the government of the day. That would be a travesty for those who died at Maidan or in the regions of Ukraine in these troubled times. Justice needs to apply to all citizens of Ukraine equally and impartially. It may even help President Putin sleep at night.
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[1] The court actions were initiated by Ruslana Lyzhychko, the Ukrainian singer who won the Eurovision Song Contest in 2004, and Anatoliy Grytsenko, a deputy of the Verhovna Rada of Ukraine and former Minister of Defence of Ukraine.
[2] Many of her former government were indicted and imprisoned, including Yuriy Lutsenko, a former Minister of Internal Affairs of Ukraine; Valeriy Ivaschenko, a former Interim Minister of Defence of Ukraine; Heorhiy Filipchuk, a former Minister of Environment Protection of Ukraine; Anatoliy Makarenko, a former Head of the State Customs Service of Ukraine.
[3] “Tymoshenko is Europe’s Version of Aung San Suu Kyi” by Geoffrey Robertson at http://www.theaustralian.com.au/national-affairs/opinion/, 25 February 2014.
[4] Act of Ukraine “On Restoration of the Trust to the Judiciary of Ukraine” dated 8 April 2014 No. 1188-VII.
[5] “HRW: New Ukraine Law Threatens Judicial Independence” by Taylor Gillan at http://www.jurist.org/paperchase/, 10 April 2014.
[6] Adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Currently, 122 countries are States Parties to the Rome Statute. The International Criminal Court is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. See also “Volodymyr Vasylenko: “Government Bodies were First and Foremost Responsible for a Civilized Regulation and Solution of the Conflict” by Hanna Trehub at http://ukranianweek.com/society/, 4 March 2014.
[7] http://zakon4.rada.gov.ua/laws/show/790-18.
[8] http://www.skynews.com.au/news/world/europe/2014/04/25.
[9] “Germany Co-opts Putin’s Anti-Ukraine Propaganda to Support International Observers and Joining the EU (At Last, a Sign of Life)” by Paul Roderick Gregory at http://www.forbes.com/sites/, 19 March 2014.
[10] Statistics vary as to the number of deaths of Ukrainian military and civilians and excluding other nationalities that died in Ukraine during World War II, ranging from 5,375,000 as per Paul R. Magocsi – History of Ukraine to 6,850,000 as per V. E. Korol – http://top.rbc.ru/society/08/05/2011/588498.shtml.
[11] http://en.interfax.com.ua/news/general/186207.html
[12] http://www.rada.gov.ua/en/news/News/News/87272.html
[13] http://www.osce.org/ukrainemonitoring/117622
