• Українська
  • Русский
  • English
Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

An Aspect Of The Surkis Vs. Omelchenko Case

3 July, 1999 - 00:00

As expected by most analysts, the Supreme Court suspended the Vyshgorod Court ruling, actually nullifying the Kyiv municipal elections' turnout. From now on Oleksandr Omelchenko is firmly reestablished in his mayor's seat until the case is resolved by the Supreme Court.

Actually, the situation is clear enough to sum up the entire campaign. The Verkhovna Rada's resolution, whatever its formulation, will only dot the i's and cross the t's, yet the crux of the matter can be ascertained now. However, I would rather dwell on a certain aspect, suspecting that it has drawn little, if any, public attention so far.

I have in mind what seems a purely theoretical problem: the legitimacy-law ratio. As far as I am concerned, the Surkis vs. Omelchenko case is most important, being an eloquent testimony to the inadequate status of the Ukrainian courts and judges and obsolete legal approaches being practiced. This inadequacy and obsolescence make it possible for the executive and affiliated groups to politically manipulate the judiciary. I have reasons to assume that no court of law, in any civilized country (especially those practicing the Anglo-Saxon legal tradition) would ever rule in favor of Mr. Surkis. And the point is not that the Vyshgorod Court failed to analyze exactly how any of Mr. Omelchenko's alleged transgressions affected the elections' outcome (although such analysis would have allowed the court to arrive at a different conclusion). The point is that a law court should regard the law as just the basis for its decisions. Such decisions should be made by the judge proceeding from the concept of the parties' legitimate rights and justice (in this particular case, I, being a biased member of the electorate, having never voted for Oleksandr Omelchenko and not intending to do so in the foreseeable future, do believe that justice is on his side). Also, in this case the functions to be discharged by the Ukrainian court (remaining actually unchanged since the Soviet period) boiled down to determining whether certain circumstances figuring in the case were in conformity with the spirit and letter of the law. These are two essentially different approaches. In the former (civilized) case, the judge possesses extensive rights and assumes a great deal of responsibility; his decision will be only his, and everybody knows this. In the latter (Soviet Ukrainian) case the judge does not seem to have as much freedom for taking his own “arbitrary” decision. In reality, however, the opposite is true. The judge is not responsible for his decision. The law is. And any law can be interpreted whichever way. In other words, this judge can use the law to carry out a political assignment, doing so faultlessly from the legal point of view, and coming out with a clear conscience.

This is by no means a problem resulting from inadequate legislation only. This is a simple and generally recognized problem which is, nevertheless, kept out of the limelight in Ukraine. There can be no perfect closed legislative systems — that ill-famed “legal framework” whose absence has been mourned by Ukrainian politicians for the past eight years. It cannot be found anywhere in the civilized world, nor should it exist anywhere. The “Omelchenko case” once again proves that Ukrainian judges are completely dependent on the executive. Yet this is not the only — or main — root of the problem. The current Ukrainian judicial system can be used by an expert to arrange for any wheelings, dealings, and outright crimes that will be eventually presented as perfectly legitimate actions. Therefore, we should listen to all those warning us that the coming presidential elections are very likely to be rigged.

As expected by most analysts, the Supreme Court suspended the Vyshgorod Court ruling, actually nullifying the Kyiv municipal elections' turnout. From now on Oleksandr Omelchenko is firmly reestablished in his mayor's seat until the case is resolved by the Supreme Court.

Actually, the situation is clear enough to sum up the entire campaign. The Verkhovna Rada's resolution, whatever its formulation, will only dot the i's and cross the t's, yet the crux of the matter can be ascertained now. However, I would rather dwell on a certain aspect, suspecting that it has drawn little, if any, public attention so far.

I have in mind what seems a purely theoretical problem: the legitimacy-law ratio. As far as I am concerned, the Surkis vs. Omelchenko case is most important, being an eloquent testimony to the inadequate status of the Ukrainian courts and judges and obsolete legal approaches being practiced. This inadequacy and obsolescence make it possible for the executive and affiliated groups to politically manipulate the judiciary. I have reasons to assume that no court of law, in any civilized country (especially those practicing the Anglo-Saxon legal tradition) would ever rule in favor of Mr. Surkis. And the point is not that the Vyshgorod Court failed to analyze exactly how any of Mr. Omelchenko's alleged transgressions affected the elections' outcome (although such analysis would have allowed the court to arrive at a different conclusion). The point is that a law court should regard the law as just the basis for its decisions. Such decisions should be made by the judge proceeding from the concept of the parties' legitimate rights and justice (in this particular case, I, being a biased member of the electorate, having never voted for Oleksandr Omelchenko and not intending to do so in the foreseeable future, do believe that justice is on his side). Also, in this case the functions to be discharged by the Ukrainian court (remaining actually unchanged since the Soviet period) boiled down to determining whether certain circumstances figuring in the case were in conformity with the spirit and letter of the law. These are two essentially different approaches. In the former (civilized) case, the judge possesses extensive rights and assumes a great deal of responsibility; his decision will be only his, and everybody knows this. In the latter (Soviet Ukrainian) case the judge does not seem to have as much freedom for taking his own “arbitrary” decision. In reality, however, the opposite is true. The judge is not responsible for his decision. The law is. And any law can be interpreted whichever way. In other words, this judge can use the law to carry out a political assignment, doing so faultlessly from the legal point of view, and coming out with a clear conscience.

This is by no means a problem resulting from inadequate legislation only. This is a simple and generally recognized problem which is, nevertheless, kept out of the limelight in Ukraine. There can be no perfect closed legislative systems — that ill-famed “legal framework” whose absence has been mourned by Ukrainian politicians for the past eight years. It cannot be found anywhere in the civilized world, nor should it exist anywhere. The “Omelchenko case” once again proves that Ukrainian judges are completely dependent on the executive. Yet this is not the only — or main — root of the problem. The current Ukrainian judicial system can be used by an expert to arrange for any wheelings, dealings, and outright crimes that will be eventually presented as perfectly legitimate actions. Therefore, we should listen to all those warning us that the coming presidential elections are very likely to be rigged.

Rubric: