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09KYIV428, POLITICAL INFLUENCE IN UKRAINE’S MURKY JUDICIAL

March 6, 2009

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09KYIV428 2009-03-06 16:27 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

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 
------- 
 
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

Wikileaks

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