More than school interests

On December 13 Yaroslava Bolotina, a judge at the Odesa District Administrative Court, repealed her own ruling to stop the registration of participants in external testing in Ukraine. The court also satisfied the petition of a representative of Ukraine’s Ministry of Education and Science and a lawyer for the Ageyev and Fedur company that the case be transferred to the Kyiv District Administrative Court.

The Odesa District Administrative Court left for itself only the part of the lawsuit that demanded classifying as unlawful the actions that the Odesa Oblast Administration’s Education and Research Department had taken in compliance with Ukraine’s Ministry of Education and Science directives.

“The suit against the department will fall apart right at the first session because it was clear that the plaintiff needed classifying as unlawful the actions of the department, when the latter was following the ministry’s instructions, in order to have the case heard in an Odesa court. The court’s ruling in fact means the end of the Odesa schoolboy vs. the Ministry of Education litigation because Kyiv will be hearing the case in an absolutely lawful manner. The Odesa National Law Academy will be unable to exert influence on the court,” says Oleksandr Slavsky, a representative of the aforesaid law firm.

Iryna Zaliubovska, the schoolboy’s lawyer, believes the law is on the plaintiff’s side. “Overriding the [court] decision to stop the registration for external tests does not rule out a court ruling that will cancel the tests in the future,” she said.

As the court was in session, audio and video recording was forbidden for journalists. The lawyers claimed that cameras in the court room might “suppress the nervous system” of their underage client, Oleh Nichka, who is shunning journalists. Judge Yaroslava Bolotina has refused to comment on reversing her own decision. What added fuel to the fire was the fact that, The Day before the trial began, the Minister of Education and Science of Ukraine, Ivan Vakarchuk, had formally requested the Prosecutor General of Ukraine to institute criminal proceedings against Judge Yaroslava Bolotina, who is conducting the hearing of the case.

“As the judge was holding sessions and making procedural decisions, she was not legally authorized to do so because she had not been sworn in. Bolotina took the oath as late as on Dec. 11, 2008. This is why the court hearing was adjourned. Therefore, as Judge Bolotina had been performing the functions of a judge before she legally acquired these powers, she committed a crime under Article 365 of the Criminal Code of Ukraine (abuse of power or office),” says Oleksandr Slavsky, the plaintiff’s lawyer, commenting on the case.

It will be recalled that in October 2008 the Odesa District Administrative Court began hearing into the suit of the 11th-grader Oleh Nichka who argued that his right to gain higher education was violated. In his suit the schoolboy said that the requirement to select in advance the subjects to be tested in was unlawful. He also complained about the absence of jurisprudence on the list of subjects for external testing in 2009. The court immediately accepted the suit and ruled on November 25 to satisfy the claim, which essentially meant that the registration of participants for the 2009 external tests had to be stopped. (Nevertheless, it started on December 1, 2008.) The Ministry of Education called the suit a “criminal raid” on the education reform.

“Politicians used the schoolboy to hype themselves. For example, Iryna Zaliubovska, the plaintiff’s attorney, is an oblast councilor from the Party of Regions who co-authored several books written jointly with Serhii Kivalov, Rector of the Odesa Law Academy and Verkhovna Rada member representing the same party. Kivalov enjoys undeniable authority in the region’s courts, so the initiators of this trial considered it better to hold it in Odesa. Neither Kivalov nor the Party of Regions has so far confirmed their involvement. If the schoolboy had finally won, Kivalov would have done his best for this country to know its ‘heroes’,” says political scientist Dmytro Brzhestovsky.

It was decided that the lawsuit against the oblast education department will be heard on Feb. 2, 2009, at the Odesa District Administrative Court. It is not yet known exactly when the Kyiv District Administrative Court will hear Oleh Nichka’s lawsuit against the Ministry of Education and Science of Ukraine.