Why Ukraine should refrain from pursuing the Chairman of the Constitutional Court

On 18 June, the International Commission of Jurists (ICJ) expressed concern over the attempt to subject the Chairman of the Constitutional Court of Ukraine (CCU) to prosecution after the interrogation of the Constitutional Court Justices and the seizure of documents from the CCU earlier this year.

It is reported that on 16 June, the Chairman of the Security Service of Ukraine Valentyn Nalyvaichenko had presented the evidence of a criminal offense by the CCU Chairman Yurii Baulin.

The documents allegedly show that he had exceeded official authority in violation of paragraph 2 of Article 364 of the Criminal Code of Ukraine, which led to the usurpation of power by former President Viktor Yanukovych.

The charges relate to the Constitutional Court decision dated 30 September, 2010 No. 20- рп/2010, which abolished the amendments to the Constitution of Ukraine in 2004.

Thus, the opening of criminal proceedings is entirely based on the decision of the Constitutional Court on constitutional law.

"This is typical of the judicial function – to decide on issues on which public opinion may diverge. The persecution of judges in connection with such decisions undermines the independence of the judiciary and erodes the rule of law", – said Wilder Tayler, Secretary General of ICJ. – "At all times, especially during the transition period like, for instance, now in Ukraine, it is important that the executive refrains from any interference in the independent work of the judiciary."

ICJ also notes that attempts to subject the Chairman of the Constitutional Court to prosecution is contrary to norms of international law and to standards of judicial independence, including the United Nations Basic Principles relating to the independence of the judiciary.

"Amendments to laws or the Constitution should be made as a result of proper constitutional processes in the legislature and in the courts, and not by persecuting judges. Criminal proceedings and prosecution opened against judges of the Constitutional Court should be stopped, and the government should ensure that the Court can work without threats or interference, "- said Tayler.

Shortly after the change of government in early 2014, the ICJ expressed concern over the dismissal of the Constitutional Court Justices by the Parliament and appealed to the authorities calling to guarantee the judges with tenure and non-interference in the work of the judiciary.

Earlier this year, the Security Service of Ukraine (SSU) questioned the Constitutional Court Justices who had participated in the examination of the said case.

According to the SSU, at least 10 Constitutional Court Justices have been questioned. Moreover, in May 2015 the Security Service seized documents in the Constitutional Court.

These investigations and persecutions of the Constitutional Court Justices are taking place at the exact time when the CCU is deliberating on a number of extremely important issues, including the constitutionality of the law "On government cleansing", the law "On condemnation of Communist and National Socialist (Nazi) totalitarian regimes in Ukraine and ban on their symbols’ promotion", and the law “On all-Ukrainian referendum".

ICJ reminds that Article 1 of the UN Basic Principles relating to the independence of the judiciary states that the government and other institutions should respect and support the independence of the judiciary.

In addition, the Principles provide that the judicial authorities should make decisions on matters submitted for their consideration impartially, based on facts and according to the law, without any restrictions or improper influence, inducements, pressures, threats or interference, direct or indirect, from any quarter and for any reason (Article 2).

Recommendation No. R(94)12 of the “Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges” specifies these principles and provides that "Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary".

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