Identifier
Created
Classification
Origin
09KYIV428
2009-03-06 16:27:00
CONFIDENTIAL
Embassy Kyiv
Cable title:  

POLITICAL INFLUENCE IN UKRAINE'S MURKY JUDICIAL

Tags:  PGOV UP 
pdf how-to read a cable
VZCZCXRO2459
PP RUEHDBU
DE RUEHKV #0428/01 0651627
ZNY CCCCC ZZH
P 061627Z MAR 09
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 7433
INFO RUCNCIS/CIS COLLECTIVE
RUEHZG/NATO EU COLLECTIVE
C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000428 

SIPDIS

E.O. 12958: DECL: 03/06/2019
TAGS: PGOV UP
SUBJECT: POLITICAL INFLUENCE IN UKRAINE'S MURKY JUDICIAL
SYSTEM

Classified By: Political Counselor Colin Cleary for reasons 1.4 (b,d).

Summary
-------

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000428

SIPDIS

E.O. 12958: DECL: 03/06/2019
TAGS: PGOV UP
SUBJECT: POLITICAL INFLUENCE IN UKRAINE'S MURKY JUDICIAL
SYSTEM

Classified By: Political Counselor Colin Cleary for reasons 1.4 (b,d).

Summary
--------------


1. (C) Ukrainians continue to view their judicial system as
corrupt and open to political influence. The courts remain
chronically underfunded, while judicial immunity and lifetime
appointments for judges insulate their decisions. PM
Tymoshenko is widely seen as controlling the Supreme Court,
while President Yushchenko is believed to hold sway over the
Constitutional Court. The Byzantine legal system, which
provides for overlapping jurisdiction among various economic,
administrative and criminal courts, has resulted in frequent
"verdict shopping" among plaintiffs. Legal reform legislation
that would increase the independence of the courts has
languished in the Rada since April 2007. End Summary.

Courts Susceptible to Political Pressure
--------------


2. (SBU) Yushchenko and Tymoshenko, according to an account
leaked to press, accused each other of controlling courts and
the legal system in a divisive NSDC meeting in early
February. Surveys conducted by the Razumkov Center, a
respected political think-tank, have consistently shown that
Ukrainians view their court system as corrupt and open to
political pressure.


3. (SBU) Tetyana Fuley, a legal expert and coordinator for
legal reform issues with Indiana University's Parliamentary
development project, told us that there was little
independence in the judiciary, and that politicians used the
courts as an instrument to get what they want. Volodymyr
Horbach, a co-founder of the Civic Constitution Committee, an
independent group of NGO's and think-tanks, similarly stated
that the courts were all about political pressure and
control.


4. (SBU) Ihor Kohut, political analyst and chairman of the
Agency for Legislative Initiatives, told us that there were
two main issues that prevented an independent judiciary. The
first was that the selection process for judges, especially
at the Constitutional Court, was open to political pressure.
One third of the Constitutional Court is appointed by the
President, one third by the Rada and another third are
submitted by the Congress of Judges--a judicial body.


5. (SBU) Generally, Judges for the Constitutional Court have
served previously in other courts. For most other courts,

nominees are put forth by Court Chairman of various courts
and then approved by the High Council of Justice. The High
Council of Justice is composed of approximately one third
judges, one third presidential appointees, and one third Rada
appointees. European standards state that judges should
comprise 50 percent plus one of the selection body. According
to Kohut, the heavy influence of the President and the Rada
on the selection of judges stifles judicial independence.
The selection process for judges is widely seen as based on
business and political connections rather than legal
qualifications.


6. (SBU) Kohut said the second issue was the courts' reliance
on financial support from the Rada. The funding, financing
and logistics support for courts -- except for the
Constitutional Court, the Supreme Court and some high
specialized courts -- falls under the State Judicial
Administration which answers to the Cabinet of Ministers.
The result was that courts were chronically underfunded, and
susceptible to political influence.


BYuT Controls the Pechersk and Supreme Courts
-------------- --------------


7. (C) Former Speaker of the Rada Arseniy Yatsenyuk, meeting
with us March 5, contended that the Tymoshenko bloc controls
a number of local and regional courts including the Pechersk
Court in Kyiv. Kyiv's Pechersk court has within its
geographic jurisdiction many of the government offices,
including the Presidential Secretariat. Many cases dealing
with government issues are petitioned to the Pechersk court.
Yatsenyuk added that Tymoshenko also controls the Supreme
Court.


8. (SBU) Most legal experts agree that the Supreme Court of
Ukraine has strong links to the Tymoshenko bloc. Horbach and
Fuley, in separate conversations, told us that the Chief
Justice of the court, Vasyl Onopenko, is a former member of
the BYuT faction and they believed that BYuT controlled the
court. Petro Martynenko, a former Constitutional Court

KYIV 00000428 002 OF 002


Judge, was initially reluctant to comment on the issue of
political influence on courts. On further prompting,
however, he told us that it was probably true that the
Supreme Court was under the Tymoshenko bloc's control.


9. (SBU) Fuley told Emboffs that it was clear that the
Supreme Court was tied to BYuT, because BYuT was blocking
legal reform laws that reduced the power of the Supreme
Court. The law on status of judges, and law on the
judiciary have languished since April 2007 after they passed
in the first reading. The laws, now combined in committee,
establish a judicial discipline commission and reduce the
number of Supreme Court Judges from 95 to 44. She stated
that Our Ukraine-People's Self Defense (OU-PSD) and the Party
of Regions were close to passing the laws last year. Fuley
told us that the law might be reviewed by the Rada Justice
Committee on March 18th. However, she saw little hope this
year for Regions and OU-PSD to work together to pass the
laws.


Yushchenko Petitions "His" Constitutional Court
--------------


10. (SBU) Yushchenko is believed to have more influence in
the Constitutional Court. In addition to the six judges
appointed by Yushchenko, one third of the court, two of the
judges appointed by the Congress of Judges have close ties to
the Victor Baloha, head of the Presidential Secretariat.


11. (SBU) Oleksandr Barabash, a lawyer who has presented
cases to the Constitutional Court and is a specialist in
election law told us that Yushchenko uses the court for
tactical purposes. Barabash stated that Yushchenko submits
petitions to the Constitutional Court on a regular basis to
paralyze decisions made by the Cabinet of Ministers, even
though the President knows that the petitions are without
merit.


Unclear Jurisdiction Allows Verdict Shopping
--------------


12. (SBU) Petro Martynenko told us that it was not always
easy to tell which judges belonged to which faction. Judges
are immune from prosecution and may not be detained or
arrested without the consent of parliament. During 2008 the
High Council of Justice asked the Rada to dismiss only eight
judges nationally for corruption. All eight were dismissed.
Court decisions are also opaque and often not publicized
making it difficult to see who benefits. Horbach noted that
the law allows a plaintiff to file a complaint from any
court. The lack of jurisdictional lines makes it easier for
plaintiffs to shop around to find a sympathetic court or
judge that they believe will issue a ruling in their favor.


Comment
--------------


13. (C) The Judicial system in Ukraine is clearly open to
political influence and corruption. Political parties and
rich plaintiffs have used their influence in the courts to
obtain favorable results, or as a delaying tactic to
forestall actions. Judges, with wide immunity, often owe
their jobs to political factions. Further judicial reform
is clearly needed, but will probably stay on the backburner
in this presidential election year.
TAYLOR