UKRAINE’S CONSTITUTIONAL COURT UNDER PRESSURE

On May 21, the Constitutional Court of Ukraine (CC) closed proceedings related to President Viktor Yushchenko’s April 2 decree to disband parliament. This was a pure formality, as Yushchenko had on April 26 invalidated his own decree by issuing another decree disbanding parliament and rescheduling an early parliamentary election for June 24. The CC launched proceedings on the April 26 decree on May 14.

No matter in whose favor the CC may deliver its verdict, the opposing side will hardly recognize it. This is because the CC has lost credibility, become incapacitated by political pressure, dismissals, and resignations of its judges, and discredited by allegations of corruption. In this situation, no legal ruling can solve the political crisis caused by Yushchenko’s decision to disband parliament. The ultimate solution can apparently be only political, reached between Prime Minister Viktor Yanukovych and Yushchenko.

As early as April 9, parliament issued a statement accusing Yushchenko of “putting unprecedented pressure” on CC judges. The following day, Yushchenko’s representative at the CC, Volodymyr Shapoval, said that any verdict regarding Yushchenko’s April 2 decree would be purely political. Shapoval made his comments even before the CC officially started looking into Yushchenko’s decree, which happened on April 11.

From the very beginning, both sides to the conflict apparently agreed on one point: the CC would not rule in Yushchenko’s favor. His team and the media backing Yushchenko were convinced that the majority of the CC’s 18 judges sympathized with the Yanukovych camp and were “corrupt.” Yanukovych’s side has insisted that Yushchenko’s decision to disband parliament had been unconstitutional.

In this situation, the strategy of Yushchenko’s team has been to incapacitate the CC, while Yanukovych’s camp has been at pains to maintain the status quo. On April 16, the Security Service (SBU), which is loyal to Yushchenko, accused CC judge Syuzanna Stanik of corruption, saying that some property had been handed over to her close relative, apparently in return for certain services. Stanik flatly denied this, and her husband alleged, in an interview to Channel 5 on April 24, that he had been offered a “big sum of money” himself in return for influencing his wife.

On April 18, representatives of Yulia Tymoshenko Bloc, allied with Yushchenko, tried to physically prevent CC judges from entering the court, and the judges managed to reach their workplace only thanks to intervention from riot police. Since then, crowds of Yanukovych supporters have being watching the entrances to the court, which prompted their rivals to accuse them of putting psychological pressure on the judges.

On May 1 Yushchenko issued a decree dismissing Stanik. He also dismissed two other CC judges, Valery Pshenychny and Volodymyr Ivashchenko, “for breaching the oath” of office on April 30 and May 10 respectively. The CC issued a statement on May 10, complaining of pressure. It expressed concern over the dismissal of the three judges, as well as over a bill registered in parliament — dominated by Yanukovych supporters — providing for the dismissal of five CC judges who are perceived to be backing Yushchenko.

On May 15-17 two courts located in Yanukovych’s Donbas stronghold invalidated the dismissals of the three judges by the president. Yushchenko’s secretariat has lodged appeals. But one of the three, Pshenychny, became acting chief judge of the CC on May 17, when CC Chief Judge Ivan Dombrovsky finally resigned. (He had tendered his resignation for the first time immediately after Yushchenko’s April 2 parliament dissolution decree, complaining of pressure, but not specifying who was pressuring him.)

This angered Yushchenko’s secretariat. Yushchenko’s legal adviser, Ihor Pukshyn, said in a commentary issued on April 17, “The CC does not exist as an institution in Ukraine.” Pukshyn said there was no quorum on the court after the dismissal of three judges. Furthermore, he said, four CC judges were on sick leave. One of those four, Dmytro Lylak, resigned from the CC on May 21. Ukraine’s mainstream media have interpreted this as the beginning of an exodus of pro-Yushchenko’s judges from the CC.

On May 18, the head of Yushchenko’s secretariat, Viktor Baloha, declared, “After the appointment of Pshenychny as acting chief judge of the CC, no ruling of this court can be legitimate.” On the same day, Yushchenko’s Our Ukraine party issued a statement urging the Prosecutor-General’s Office to launch criminal proceedings against the judges who had been dismissed by Yushchenko. Pshenychny complained to journalists on May 21 that state guards, acting on instructions from Yushchenko’s secretariat, had tried to prevent him from entering the CC building.

Also on May 21, Yushchenko turned to a district court in Kyiv suggesting that the CC should be banned from ruling on legal cases. This may be the beginning of the end of the current Ukrainian Constitutional Court.

(Interfax-Ukraine, April 4, May 10; UNIAN, April 10; Channel 5, April 18, 24, May 18; Itar-Tass, May 18; Ukrayinska pravda, May 10, 17, 21)