07/08/2005 | Копілефтер

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1. "ELECTION OF THE PRESIDENT OF UKRAINE 2004:
THEORIES AND PRACTICE"
Judicial Supervision of the Election Process
Yushchenko v. CEC: The Historic Decision of the Supreme Court of Ukraine

Comments by Judge Bohdan A. Futey (1)
Conference on the 2004 Presidential Election
The Central Election Commission of Ukraine
Kyiv, Ukraine, June 9-10 2005
The Action Ukraine Report (AUR), Number 517
Washington, D.C., Thursday, July 7, 2005

I. Yushchenko v. CEC

The most visible election dispute in Ukraine took place during
the 2004 presidential elections. Despite the allegations of widespread
fraud, (2) the Central Election Commission (CEC), on November 24, 2004,
nevertheless voted to declare Mr. Viktor Yanukovych, the Prime Minister,
the winner of the run-off election against Mr. Yushchenko, the opposition
candidate. On November 25, 2004, Mr. Yushchenko's representatives
immediately filed a complaint with the Supreme Court of Ukraine.

The complaint alleged that the final vote tallies in forty
territorial districts, twenty percent of all districts, were falsified. The
complaint also focused on voter list irregularities, improper use of
absentee ballots, certification of precinct voting where the number of votes
exceeded the number of registered voters (e.g., over 100% voter turn-out
in Mykolayiv oblast), and multiple voting.

In an initial display of authority, the Supreme Court prevented
the CEC from officially certifying the final vote count until the Supreme
Court issued a decision addressing Mr. Yushchenko's allegations of fraud.
Over the span of five days, the Supreme Court heard oral arguments in the
matter of Yushchenko v. CEC. For the first time in the history of Ukraine,
the fate of a nation rested solely upon a decision of the Supreme Court.
The executive and legislative branches found themselves helpless as they
waited for the Court's decision to come down. On December 3, 2004, after
deliberating for approximately seven hours, the Supreme Court issued its
historic decision.

The Supreme Court began by overturning the CEC's November 24,
2004, vote count. The decision to overturn the vote count was based, in
part, on the CEC's failure to consider the complaints filed by Mr.
Yushchenko. Further, the Supreme Court concluded that, in accordance
with provisions of the "Law on the Election of the President" and the
Constitution of Ukraine, the CEC should not be permitted to officially
certify the vote because complaints before lower courts were not yet
resolved.

Therefore, the November 21st run-off election was for all
practical purposes "invalid." The Supreme Court then determined that the
appropriate remedy to redress the violations was to order the CEC to
conduct a "repeat second round" of voting in every precinct in Ukraine.
The Supreme Court also ordered that the additional round of voting would
need to take place within three weeks and would be limited to the two
candidates who initially advanced to the run-off.

The Supreme Court of Ukraine in Yushchenko v. CEC seized upon
the unique opportunity to shape the law and the legal system in the same
manner that the United States Supreme Court did in Marbury v. Madison
two hundred years ago. (3)

II. Adjudication of Election Disputes

A. Jurisdiction and Venue

Important issues regarding jurisdiction and venue to this day
remain unresolved. Jurisdiction concerns a court's authority to review the
subject matter of a dispute whereas venue defines the geographic limits of
where the adjudication must take place. The concern stems from cases
being heard in seemingly improper venues - - outside of the geographic
area in which the alleged acts took place.

For example, in 1998, the election of the mayor of the City of
Odesa was challenged in the City of Kirovohrad, which is in a different
oblast. The Kirovohrad Court invalidated the election. Likewise, a court
in the city of Lviv invalidated the June 2003 election of the mayor in the
City of Mukachevo; again, a city in a different oblast. It appears that
someone in these instances selected a forum which would most likely
produce favorable results. Establishing concrete jurisdictional and venue
rules will eliminate forum-shopping issues which presented concerns and
problems in the past.

B. Ex Parte Communications

It is worthy to note that in order to ensure the principle of
independence, judges must refrain not only from conduct that is improper but
also from any conduct that could create an appearance of impropriety. In
this regard, ex parte communications must be avoided. Ex parte is defined
as "[o]n one side only; by or for one party; done for, in behalf of, or on
the application of, one party only." (4)

The Supreme Court and other lower courts currently have visiting
hours where parties can individually meet with the judges. To prevent an
appearance of impropriety, these ex parte meetings should cease
immediately and all communications between the court and the parties
should be conducted in an open forum with both parties present.

C. Number of Election Disputes

During Parliamentary elections of 1998 and 2002, the Law on
Elections of deputies allowed candidates to challenge the election procedure
and election results. As a result, the courts were overloaded with
disputes. In 1998, the Courts of Ukraine of all levels reviewed 162
disputes by participants in the election process, while in 2002 the courts
reviewed more than 500 disputes. (5)

In contrast, according to a recent study in the year 2000, 163
cases growing out of contested elections had come before the United States
Senate as of that date. That report also indicates that there have been 603
contests brought to the House for consideration. Presidential elections
have not been immune to recount and contest requests either. At the
presidential level, major disputes took place in 1801, 1825, 1876, and 2000.

D. Public Opinion

Failure to properly address election issues will further shake
public confidence in the judiciary. Lower courts have received negative
ratings - - a negative rating of 68% according to a survey conducted in
autumn 2001. In the fall of 2002, only 21% approved the practice of lower
court judges. In addition:

For all four court levels, a majority of respondents feel that
outside interests have some or a great deal of influence on decision-making:
Constitutional Court (52%), Supreme Court (56%), appellate courts (55%),
and local courts (73%). Local courts were rated the lowest, as a plurality
say that this level of the judicial system is influenced a great deal by
outside interests and only 2% say that they are not influenced at all. (6)
The public confidence in the judiciary will pummel further if there is any
uncertainty surrounding the adjudication of election disputes.

E. Administrative Procedural Code

In February 2002, the Verkhovna Rada adopted the Law on the
Judiciary, which contemplated the creation of specialized courts. In 2004,
an Administrative Specialized Court was created by statute, its jurisdiction
includes adjudication of election disputes. This specialized court system
is still in its formative stage and is not yet fully operational.

It also bears mention that the new Administrative Procedure Code,
currently pending before the Parliament after an initial veto by President
Yushchenko, will prove to be a valuable resource for both the judiciary and
election law practitioners as it consolidates several substantive laws into
a single document. The code explicitly references the rule of law and the
case law of the European Court of Human Rights as the sources of law for
administrative courts.

The code also enumerates the possible petitioners, as well as
respondents, in an election dispute and imposes specific filing deadlines
for bringing suit. In addition, the code clarifies the jurisdiction at the
trial court and appellate levels and empowers the courts to determine what
remedial measures, if any, should be undertaken.

III. Strengthening Judicial Independence

a. Monetary Funding

Establishing a viable court system cannot proceed without
overcoming several economic hurdles. Obvious concerns relate to financial
matters: that adequate budgetary means for administering justice are
provided. In other words, to strengthen their independence, the courts must
receive proper funding under a separate budgetary authority and judges must
receive adequate salaries. Judges in Ukraine are under-compensated: (1)
lower court judges are paid $100 to $200 per month; (2) appellate judges
receive several hundred dollars per month; and (3) Supreme Court justices
receive approximately $1000 per month. (7)

b. Miscellaneous Concerns

The courts must ensure that their decisions are promptly
published and made available to the public. The lack of published written
opinions undermines public confidence in the judiciary, causes confusion in
legal circles, and prevents transparency in the decision-making process.
These negative side-effects were visible during the various elections which
preceded the 2004 Ukrainian presidential elections.

In addition, Judges must not allow themselves to be drawn into
political contests between the executive and legislative branches of
government. The court should resist any temptation to involve itself in the
ongoing political struggles. Judges should be aware of the danger of
becoming entangled in politics. In this regard, they must refrain from
making pronouncements concerning political cases that are, or may come,
before them.

Such occurrences, which threaten the impartiality of the
judiciary and erode public confidence in the system, must be eliminated.
For this purpose, a strong bar association must be established and be
well organized to oppose, expose, and prevent coercion of the judiciary.

Lawyers and bar associations have an obligation to speak out
against improper intrusion into the province of the judiciary and, likewise,
improper judicial conduct. In this respect, it is also important to adopt
an effective and substantive Code of Judicial Conduct.

IV. Concluding Thoughts

The importance of resolving electoral issues stems from the fact
that the right to vote in a democratic society is one of the most precious
of all individual rights. The United States Supreme Court has endorsed
this proposition: "No right is more precious in a free country than that of
having a choice in the election of those who make the laws under which
as good citizens they must live." (8) Voters' trust and confidence are of
great significance.

If citizens cannot be assured of a fair and honest election
process, they will have no faith in other components of the political
process. Social stability rests on the individual's confidence in the
electoral process to function correctly in every respect. It is the
responsibility of the judiciary to ensure that the adjudication process is
implemented in a proper way.

While significant strides were made in the previous year which
have not gone unnoticed, the time has come to turn rhetoric into reality.
The recognition and application of standard procedures in adjudicating
election disputes will be a step in the right direction to make the
electoral process more fair and efficient, for it will help prevent frequent
reversals and improve the public perception of the process.

It is not enough, however, that compliance occur on paper, it
must also be evident in performance and execution. With all the past
criticisms leveled against the judiciary, it is also true that judges will
not be respected until they respect themselves. As was set forth in my
testimony before the Verkhovna Rada on March 16, 2005, implementation
of judicial and legal reforms will not be a simple endeavor. Nevertheless,
these tasks must be undertaken for the Rule of Law to prevail in Ukraine.

Once again, I appreciate the opportunity to address this
conference and I thank you for your time. -30-
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FOOTNOTES:
1 Judge of the United States Court of Federal Claims appointed by President
Ronald Reagan in May 1987. Judge Futey has been active in various Rule of
Law and Democratization Programs in Ukraine since 1991. He served as an
advisor to the Working Group on Ukraine's Constitution, adopted June 28,
1996. Judge Futey also serves as an advisor to the International Foundation
for Election Systems (IFES) and to the International Republican Institute
(IRI). In addition, Judge Futey observed most of the Parliamentary and
Presidential elections in Ukraine.
2 IRI Preliminary Statement (Nov. 22, 2004).
3 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)
(establishing the doctrine of judicial review).
4 Black's Law Dictionary 517 (5 ed. 1979).
5 Speech by Mykhailo Ryabets, Head of the Central Election Commission
of Ukraine, Munich, February 15, 2002.
6 International Foundation For Election Systems, Attitudes and
Expectations: Public Opinion in Ukraine 2002, at 20 (2003).
7 Ivan Lozowy, Ukraine: "Underpaid, Underqualified, and Under the Gun"
A Profession Without Honor, Transitions Online (May 27, 2004).
8 Westberry v. Sanders, 376 U.S. 1 (1964).
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[The Action Ukraine Report (AUR) Monitoring Service]
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2. THE ROLE OF COURTS IN DEMOCRATIC ELECTIONS: "PROTECTING
THE VOTE: JUDICIAL SUPERVISION OF THE ELECTORAL PROCESS -
THE UNITED STATES PERSPECTIVE"
With comments on the 2004 presidential election in Ukraine

Comments by Judge Bohdan A. Futey (1)
13th Annual International Judicial Conference
Kyiv, Ukraine, May 25-27, 2005
The Action Ukraine Report (AUR), Number 517
Washington, D.C., Thursday, July 7, 2005

It is an honor and privilege to participate in this extremely
important conference dealing with election dispute resolution, judicial
authority and independence. My comments will concentrate on the
experience of my own country, the United States of America, its
Constitution and statutes, the electoral process, and the adjudication of
election disputes by its courts. I would like to comment on actual cases
decided by our courts and, where pertinent, reference Ukrainian statutory
and case law.

In the aftermath of the Orange revolution, the recent transition
of power in Ukraine has brought with it a much needed emphasis on
political and economic reform. While these areas certainly warrant
attention, it is imperative that legal and judicial reform receive the same
level of scrutiny, particularly in the area of adjudication of election
disputes.

The importance of resolving electoral issues stems from the fact
that the right to vote in a democratic society is one of the most precious
of all individual rights.

The United States Supreme Court has endorsed this proposition:
"No right is more precious in a free country than that of having a choice in
the election of those who make the laws under which as good citizens they
must live." (2) Voters' trust and confidence are of great significance.

If citizens cannot be assured of a fair and honest election
process, they will have no faith in other components of the political
process. Social stability rests on the individual's confidence in the
electoral process to function correctly in every respect. It is the
responsibility of the judiciary to ensure that the adjudication process is
implemented in a proper way.

This proposition, however, begs the question: How exactly does
the judiciary accomplish this end without overstepping its boundary, i.e.,
without usurping the "will of the people" or the authority entrusted to the
other branches of government?

Authority for contesting elections and recounts at the federal
level is provided by the Constitution and the Federal Contested Elections
Act of 1969 (Act). A contested election is a formal charge that the
declared winner of the election is not entitled to be the winner. Contests
have been filed based upon allegations of irregularities or fraud in the
election and seek to set aside results of elections. A recount involves a
challenge to the validity of a vote count. In a recount, the challenger
requests a second count of all or part of an election based on allegations
that errors or mismanagement took place in the counting of ballots.

Article I, section 5, clause 1 of the Constitution provides that
"Each House shall be the Judge of the Elections, Returns and Qualifications
of its own Members." Thus, each House is not only "Judge" but also the
final arbiter, and its decisions are not reviewable in any court. The
Supreme Court has consistently held that the question of title to a seat in
Congress is "a non-justiciable" question.3

The Act provides the mechanism for challenging House elections.
For example, the Act requires: (1) a contestant to file a notice of
intention to contest the election; (2) the contestant to serve the notice
upon the contestee; and (3) the contestee to file an answer upon the
contestant. The Act also permits the contestee to raise a number of
defenses to the notice of contest, such as lack of standing of the
contestant or failure of the notice to state grounds sufficient to change
the result of the election. The Act further permits the contestant and
contestee to conduct discovery and provides the power to subpoena
witnesses.

Once received by the House, election contests are referred to
the House Administration Committee, which hears and investigates
challenges. The Committee then reports their findings to the House which
has established basic standards to evaluate the validity of contests. For
example, a contestant must demonstrate that the allegations, if true, would
alter the result of the election. (4) These allegations must be supported
with adequate evidence. (5) In addition, the fact that an election count
was close, in and of itself, is an insufficient ground upon which to
overturn the results. (6)

States have the power, however, to enact mechanisms for contests
and recounts.7 Although most laws governing elections of Representatives in
Congress are state laws, the courts of a State have no direct power to judge
the elections, returns and qualifications of House members. Where the
highest court of a State has interpreted the state law, however, the House
has concluded that it should generally be guided by this interpretation, but
does not consider itself bound by such interpretation. (8)

Next, before examining instances where the court has assumed
jurisdiction, it is equally important to recognize instances where the
judiciary should refrain from rendering a decision. The areas of foreign
policy, the operation of the military establishment and, most importantly
for our purposes, political questions, are insulated from oversight by the
judiciary. (9) The political question doctrine is a delicate subject area.
On the one hand, courts interpret the Constitution to ascertain basic
standards and undertake to decide certain questions if political branches
are in disagreement. On the other hand, courts have avoided adjudication
of issues considered to be political questions.

An example of a court exercising jurisdiction is illustrated in
Powell v. McCormack.(10) In Powell, the House of Representative (House)
refused to admit a reelected member based on his conduct and character.
The Court examined whether the Constitution gave the legislature the power
to make such a decision.

The Court indicated that the legislature had the power to
consider a member's age, citizenship, and residency. The Constitution,
however, did not grant the legislature the power to consider a member's
conduct and character. The Court concluded that the political question
doctrine did not bar judicial review over the legislature's action.

Powell's continuing validity was affirmed in U.S. Term Limits,
Inc. v. Thornton,(11) by the Court in its holding that the qualifications
set out in the Constitution are exclusive and may not be added to by either
Congress or the States. An amendment to the Arkansas Constitution denying
ballot access to congressional candidates who have already served three
terms in the House or two terms in the Senate was invalid as conflicting
with the qualifications for office set forth in Article I of the
Constitution, specifying age, duration of U.S. citizenship, and state
inhabitancy requirements.

Conversely, federal courts have held disputes arising from
congressional ballot-counting and seating of candidates as non-justiciable.
In 1984, McIntyre v. McCloskey (12) involved the closest election in the
history of the House of Representatives. On election night, a count showed
McCloskey the winner by seventy-two votes. After a correction of the
returns from one county, the count showed McIntyre ahead by thirty-four
votes.

As a result, both candidates sought a ballot recount in fifteen
counties under state law procedures. Pursuant to Indiana law, state courts
appointed commissioners to supervise and report ballot recounts, as well
as instruct them on how to resolve certain disputes.

Meanwhile, the House determined it would not seat either
candidate and directed the Committee on House Administration to investigate.

McCloskey removed the proceedings to federal court, asserting
that federal law occupied the field so that only federal principles could be
used to determine which ballots to count in a federal election. The federal
district court agreed and ultimately dismissed the proceeding.

Between the time of the district court's decision and McIntyre's
appeal, the House recounted the votes and seated McCloskey. The House
determined that McCloskey won by four votes. On appeal from the district
court's decision, the United States Court of Appeals for the Seventh Circuit
determined that, pursuant to Article 1, Section 5, Clause 1 of the
Constitution, the House was the final judge and arbiter of this dispute, and
its decisions concerning which ballots to count and which candidate won
was not reviewable in any court.

In 1998, the Constitutional Court of Ukraine likewise recognized
the political question doctrine's viability. In "Re Law on Election of
Deputies to the Verkhovna Rada of Ukraine," the Constitutional Court in
considering the law on election of deputies declined to review the
constitutionality of the provision requiring the political parties and
electoral blocs to receive a minimum of four percent of the popular vote in
order to be elected to the Parliament. Specifically, the court reasoned
that the issue presented a political question which belonged to the
jurisdiction of the Parliament itself, and not the court. (13)

This is not to say, however, that election disputes are
categorically immune from judicial review. When election disputes are
properly presented to a tribunal for resolution, American jurisprudence has
developed an exacting standard of proof, one which takes into account the
practical reality that elections are not flawless, but nevertheless
recognizes that redress may in appropriate circumstances be necessary.

The standard was succinctly articulated by the United States
Court of Appeals for the Third Circuit (Third Circuit) in Marks v. Stinson.
(14) In that case, William Stinson and Bruce Marks sought a vacant seat in
the Pennsylvania State Senate. In a close race, a large turnout of absentee
votes won the election for Stinson.

Notably, Stinson engaged in a fraudulent campaign that deceived
minority voters, persuading them that state law permitted them to use
absentee ballots to vote from their homes, thereby eliminating their need
to vote at the polls. Stinson's aids also engaged in document forgery and
collusion with the County Board of Elections, which ultimately counted
ballots and reported results.

Marks, along with eight named voters, filed suit in state court.
After proceedings were held-up in state court, Marks filed suit in federal
district court to enjoin Stinson from being awarded the Senate seat. The
district court, finding voter fraud, entered a preliminary injunction and
directed the Board of Elections to certify Marks as the winner. On appeal,
the Third Circuit affirmed the district court's order granting a preliminary
injunction, preventing Stinson from exercising any authority in office. The
Third Circuit, however, vacated the district court's decision ordering Marks
be certified as the winner.

Specifically, the Third Circuit held that the district court
could not direct certification of a candidate unless it found, on the basis
of the evidence, that the designated candidate would have won but for the
wrongdoing. On remand, the district court determined that Marks would
have won but for the absence of Stinson's offenses, and certified Marks as
the election winner. Thus, the standard set by the courts for overturning
an election is that the fraudulent votes must affect the result or outcome
of the election.

According to a recent study in the year 2000, 163 cases growing
out of contested elections had come before the Senate as of that date. That
report also indicates that there have been 603 contests brought to the House
for consideration. Presidential elections have not been immune to recount
and contest requests either. At the presidential level, major disputes took
place in 1801, 1825, 1876, and 2000. All of these disputes required the
assistance of Congress or the Supreme Court to be resolved.

The most visible recent election dispute in the United States
occurred during the 2000 Presidential election. I will first address the
election process for President of the United States and then I will talk
specifically about the 2000 election. Contrary to what many people think,
the individual citizens of the United States of America do not cast votes
directly for the President. According to our Constitution, citizens of each
state vote for Electors, people who commit themselves to vote for a
particular candidate. (15)

The number of Electors in each state is equal to that state's
number of Senators and members of the House of Representatives
(Representatives) combined. (16) There are at this time 538 electoral votes
nationwide; 435 Representatives, 100 Senators, and 3 Electors for the
District of Columbia. (17) This body of Electors is collectively referred
to as the Electoral College. In order to win an election, therefore, a
candidate must secure a majority of the Electoral College votes, or 270
votes. If no candidate receives the required number of votes then the
election for President is determined by a vote of the House of
Representatives. (18)

The dispute over the 2000 election was resolved by the Supreme
Court. The election results were extremely close. On election night, Vice
President Albert Gore actually called then Governor George W. Bush and
conceded the loss of the election. Before delivering a concession speech,
however, Mr. Gore telephoned Mr. Bush again and retracted his concession
because he believed that his team had uncovered some irregularities with
the tabulation of the votes in the State of Florida. Florida has a large
population and therefore has 25 electoral votes. It became the deciding
State in the election.

On November 8, 2000, the day following the Presidential
election, the Florida Division of Elections reported that Mr. Bush had won
the State's popular vote, but by a margin of less than one-half of one
percent. As a result, under Florida voting law, an automatic machine
recount was conducted, the results of which still showed Mr. Bush winning,
but by a slightly narrower margin. Mr. Gore then sought manual recounts in
four of Florida's counties. What followed was a series of disputes in the
Florida State courts which were eventually resolved by the United States
Supreme Court.

Mr. Gore challenged the recount results, stating that the
machines counting the ballots did not detect valid votes for President.
Florida employs several different voting systems, and the decision of which
system to use in any particular county is left to government authorities on
the county level. A brief explanation of how votes were being cast in the
counties in question may be useful.

The voter used a stylus to punch a hole in the card next to the
candidates name. A machine counted those ballots by shooting a ray of light
through the ballot. A vote was recorded automatically when a ray of light
passes through the empty hole created by the punch. If the stylus did not
actually puncture the ballot, the machine would not detect the indentation
as a vote. These votes were called "undervotes."

Many of the "undervotes" consisted of a partially detached piece
of paper called a "chad" that the voting machines may or may not have
registered as a vote. In the cases in which the punch cards were merely
indented, but were not punctured all the way through, the machine would not
have picked up the vote, and it also made it very difficult to determine
during a manual recount whether it was an intended vote at all. Mr. Gore
petitioned in the Florida courts for manual recounts in certain counties in
order to count these votes that may not have been detected by the machines.

Ultimately, on December 8, 2000, the Supreme Court of Florida
held, among other things, that Mr. Gore had met his burden of proof in
challenging the recounts and ordered that manual recounts should be held in
one particular county and also stated that proper "relief would require a
counting of the legal votes contained within the undervotes in all counties
where the undervote has not been subjected to a manual tabulation." (19)
The Florida Supreme Court also determined that a "legal vote" was "one in
which there is a clear indication of the intent of the voter." (20)

This standard for what was a legal vote left much room for
interpretation on the part of individual counties. During a manual recount,
election workers actually examined each ballot by hand. An attempt was
made to discern whether a hole is punched next to the candidate's name.
It was difficult to determine the will of the voter in a hand count of punch
card ballots, since chads or punch holes sometimes were loosened
accidentally and did not reflect an actual vote.

On December 9, 2000, Mr. Bush filed an emergency application for
a stay of the mandate with the Supreme Court. The Supreme Court treated
the application as a petition for certiorari and granted it. Mr. Bush's
petition presented the following questions: "whether the Florida Supreme
Court established new standards for resolving Presidential election
contests, thereby violating Art. II, §1, cl. 2, of the Constitution and
failing to comply with 3 U.S.C. § 5, and whether the use of the standardless
manual recounts violate[d] the Equal Protection and Due Process Clauses"
(21) of the Constitution.

With respect to the equal protection question, the Supreme Court
found a violation of the Equal Protection Clause because under the
procedures outlined by the Florida Supreme Court, there was no guarantee
that every citizen could be assured that his or her vote had been examined
with equal attention as the votes of other citizens.

In a per curiam opinion issued on December 12, 2000, the Supreme
Court held that the Florida Supreme Court had ordered a statewide manual
recount of votes with minimal procedural safeguards. The Supreme Court
stated, "[W]hen a court orders a statewide remedy, there must be at least
some assurance that the rudimentary requirements of equal treatment and
fundamental fairness are satisfied." (22)

In coming to its conclusion, the Supreme Court emphasized the
different standards that were being used in different counties to determine
a legal vote. Some counties were using much less strict standards than
other counties, and some counties were changing the standard for
determining a legal vote in the middle of the recount.

The Supreme Court determined that, "the recount process, in its
features here described, is inconsistent with the minimum procedures
necessary to protect the fundamental right of each voter in the special
instance of a statewide recount . . . . The contest provision, as it is
mandated by the State Supreme Court, is not well calculated to sustain
the confidence that all citizens must have in the outcome of the elections.

The State has not shown that its procedures include the
necessary safeguards." (23) According to the Court, "[w]hen the state
legislature vests the right to vote for President in its people, the right
to vote as the legislature has prescribed is fundamental; and one source of
its fundamental nature lies in the equal weight accorded to each vote and
the equal dignity owed to each voter." (24)

Seven of the Supreme Court Justices agreed that without an
implementation of uniform standards for the manual recount there would be
a violation of the Equal Protection Clause. Two of the seven justices
believed there was enough time to perform a manual recount employing
uniform standards. The majority, however, held that there was not enough
time.

By a five to four vote, the Court stated that it was the clear
intent of the Florida legislature to comply with the provisions of 3 U.S.C.
§ 5. That statute, the Court held, requires that "any controversy or
contest that is designed to lead to a conclusive selection of electors be
completed by December 12," (25) and because the opinion of the Supreme
Court was issued on December 12, 2000, there was clearly no time to order
a recount.

Now, turning to Ukrainian elections, the most visible election
dispute in Ukraine took place during the 2004 presidential elections.
Despite the allegations of widespread fraud,26 the Central Election
Commission (CEC), on November 24, 2004, nevertheless voted to declare
Mr. Viktor Yanukovych, the Prime Minister, the winner of the run-off
election against Mr. Yushchenko, the opposition candidate.

On November 25, 2004, Mr. Yushchenko's representatives
immediately filed a complaint with the Supreme Court of Ukraine. The
complaint alleged that the final vote tallies in forty territorial
districts, twenty percent of all districts, were falsified. The complaint
also focused on voter list irregularities, improper use of absentee ballots,
certification of precinct voting where the number of votes exceeded the
number of registered voters (e.g., over 100% voter turn-out in Mykolayiv
oblast), and multiple voting.

In an initial display of authority, the Supreme Court prevented
the CEC from officially certifying the final vote count until the Supreme
Court issued a decision addressing Mr. Yushchenko's allegations of fraud.
Over the span of five days, the Supreme Court heard oral arguments in the
matter of Yushchenko v. CEC.

For the first time in the history of Ukraine, the fate of a
nation rested solely upon a decision of the Supreme Court. The executive
and legislative branches found themselves helpless as they waited for the
Court's decision to come down. On December 3, 2004, after deliberating for
approximately seven hours, the Supreme Court issued its historic decision.

The Supreme Court began by overturning the CEC's November 24,
2004, vote count. The decision to overturn the vote count was based, in
part, on the CEC's failure to consider the complaints filed by Mr.
Yushchenko. Further, the Supreme Court concluded that, in accordance
with provisions of the "Law on the Election of the President" and the
Constitution of Ukraine, the CEC should not be permitted to officially
certify the vote because complaints before lower courts were not yet
resolved.

Therefore, the November 21st run-off election was for all
practical purposes "invalid." The Supreme Court then determined that the
appropriate remedy to redress the violations was to order the CEC to conduct
a "repeat second round" of voting in every precinct in Ukraine. The Supreme
Court also ordered that the additional round of voting would need to take
place within three weeks and would be limited to the two candidates who
initially advanced to the run-off.

Although the Supreme Court of Ukraine should be saluted for
seizing upon the unique opportunity in Yushchenko v. CEC to shape the law
and the legal system in the same manner that the United States Supreme
Court did in Marbury v. Madison two hundred years ago,27 important issues
regarding venue and jurisdiction in election disputes remain unresolved.
Jurisdiction concerns a court's authority to review the subject matter of a
dispute whereas venue defines the geographic limits of where the
adjudication must take place.

During Parliamentary elections of 1998 and 2002, the Law on
Elections of deputies allowed candidates to challenge the election
procedure and election results. As a result, the courts were overloaded
with disputes. In 1998, the Courts of Ukraine of all levels reviewed 162
disputes by participants in the election process, while in 2002 the courts
reviewed more than 500 disputes.28

The courts' resolution of the enormous number of election
disputes was characterized by inconsistent rulings and failure to take
jurisdiction, as well as the improper taking of jurisdiction, among courts
of first instance, as well as reviewing courts, and contributed to confusion
among the courts, parties and the public. In fact, some cases were heard
in seemingly improper venues.

For example, in 1998, the election of the mayor of the City of
Odesa was challenged in the City of Kirovohrad, which is in a different
oblast. The Kirovohrad Court invalidated the election. Likewise, a court
in the city of Lviv invalidated the June 29, 2003 election of the mayor in
the City of Mukachevo; again, a city in a different oblast. It appears that
someone in these instances selected a forum that would most likely produce
the results he/she was seeking. Establishing concrete jurisdictional and
venue rules will eliminate forum-shopping issues which presented concerns
and problems in the past.

Lastly, in February 2002, the Verkhovna Rada adopted the Law on
the Judiciary, which contemplated the creation of specialized courts. In
2004, an Administrative Specialized Court was created by statute, its
jurisdiction includes adjudication of election disputes. This specialized
court system is still in its formative stage and is not yet fully
operational.

It also bears mention that the new Administrative Procedure
Code, currently pending before the Parliament after an initial veto by
President Yushchenko, will prove to be a valuable resource for both the
judiciary and election law practitioners as it consolidates several
substantive laws into a single document.

The code explicitly references the rule of law and the case law
of the European Court of Human Rights as the sources of law for
administrative courts. The code also enumerates the possible petitioners,
as well as respondents, in an election dispute and imposes specific filing
deadlines for bringing suit. In addition, the code clarifies the
jurisdiction at the trial court and appellate levels and empowers the courts
to determine what remedial measures, if any, should be undertaken.

While significant strides were made in the previous year which
have not gone unnoticed, the time has come to turn rhetoric into reality.
The recognition and application of standard procedures in adjudicating
election disputes will be a step in the right direction to make the
electoral process more fair and efficient, for it will help prevent frequent
reversals and improve the public perception of the process.

It is not enough, however, that compliance occur on paper, it
must also be evident in performance and execution. With all the past
criticisms leveled against the judiciary, it is also true that judges will
not be respected until they respect themselves. As was set forth in my
testimony before the Verkhovna Rada on March 16, 2005, implementation
of judicial and legal reforms will not be a simple endeavor. Nevertheless,
these tasks must be undertaken for the Rule of Law to prevail in Ukraine.

Once again, I appreciate the opportunity to address this
conference and I thank you for your time. -30-
------------------------------------------------------------------------------------------------------------
FOOTNOTES:
1 Judge of the United States Court of Federal Claims appointed by
President Ronald Reagan in May 1987. Judge Futey has been active in
various Rule of Law and Democratization Programs in Ukraine since 1991.
He served as an advisor to the Working Group on Ukraine's Constitution,
adopted June 28, 1996.
2 Westberry v. Sanders, 376 U.S. 1 (1964).
3 Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
4 See Hendon v. Clarke, H.R. Rep. No. 453, 98th Cong., 1st Sess. 4
(1983).
5 Paul v. Gammage, H.R. Rep. No. 243, 95th Cong., 1st Sess. 3 (1977).
6 Pierce v. Pursell, H.R. Rep. No. 245, 95th Cong., 1st Sess. 3 (1977).
7 U.S. Const. art. I, § 4.
8 H.R. Rep. No. 91-569, at 2 (1969), reprinted in 1969 U.S.C.C.A.N.
1456.
9 Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that the American
judiciary lacks jurisdiction to review political questions).
10 395 U.S. 486 (1969).
11 514 U.S. 779 (1995).
12 766 F.2d 1078 (7th Cir. 1985).
13 "Re Law on Election of National Deputies to the Verkhovna Rada of
Ukraine," Visnyk Konstytutsiinoho Sudu Ukrainy 2 (1998): 4.
14 19 F.3d 873 (3d Cir. 1994).
15 U.S. Const. art. II, § 1, cl. 2.
16 Id.
17 U.S. Const. amend. XXIII.
18 U.S. Const. amend. XII.
19 Gore v. Harris, 772 So. 2d 1243, 1246 (2000).
20 Id.
21 Bush v. Gore, 531 U.S. 98, 103 (2000).
22 Id. at 109.
23 Id.
24 Id. at 104.
25 Id. at 110.
26 International Republican Institute Preliminary Statement (Nov. 22,
2004).
27 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803)
(establishing the doctrine of judicial review).
28 Speech by Mykhailo Ryabets, Head of the Central Election Commission
of Ukraine, Munich, February 15, 2002.
-------------------------------------------------------------------------------------------------------
[The Action Ukraine Report (AUR) Monitoring Service]
===============================================================
3. JUDGES' OCCUPATIONAL HAZARD
IS INDIFFERENCE TO PEOPLE BEHIND BARS

Our courts are not independent, meaning there is no judicial branch
in this country. What we need is comprehensive judicial reform,
including judicial self-government. We're talking a new kind of judge.

Interview with Yuriy Vasylenko, Ex-Justice of the Appellate Court of Kyiv
Roundtable hosted by Larysa Ivshyna, Maryana Oliynuk, Natalia Trofimova
The Day Weekly Digest in English, #19
Kyiv, Ukraine, Tuesday, 7 June 2005

Yuriy Vasylenko, ex-justice of the Appellate Court of Kyiv, became a
household name in 2002, when he launched two criminal cases against
President Leonid Kuchma, thus creating a precedent in the post-Soviet
space. His decision cost him his career: he was fired. Many people came
out in his support, but did so furtively: "You have a point there, but I'm
saying this strictly off the record; I have a family, you see..."

Yuriy Vasylenko also has a family and two children - it's simply that this
judge is one of those rare individuals who live by the dictates of their
conscience and do their best to ensure that justice triumphs, political
opportunism notwithstanding.

"THERE IS NO JUDICIAL BRANCH IN THIS COUNTRY"

[The Day] What is your view of the new government?

Yu.V.: I see nothing new. Human rights are still being violated as they were
before. A legal system remains to be created. They say that we want to live
in a state ruled by law. However, I don't understand what the law has to do
with it. Every country has its legislation, and so do we, but I still can't
understand it. We still lack the separation of powers. Our courts were
scared by the new government at first and then began playing up to it.

This has nothing to do with the law. Without independent courts of law
there'll never be stability, not in the economy, politics, or society. And
with all that reshuffling with privatization, courts are taking and
switching sides, overruling an unlawful privatization claim and later coming
up with new evidence under the new government, referring to "newly
discovered circumstances" (a pet formula these days).

In other words, our courts are not independent, meaning there is no judicial
branch in this country.

[The Day] It would be naive to expect that with a new government in power,
we would instantly have a new judicial system. Yet there should at least be
some signs of a desire to move in the right direction. Have you noticed any
such signs?

Yu.V.: No, because there are none. The creation of a new judicial system was
envisaged by the constitution and the deadline was June 27, 2001 - in other
words, five years from the date that the Fundamental Law was enacted.
Attempts were made to carry out minor judicial reform that wasn't
anticipated by the constitution. Later, a judicial system bill was passed,
but it doesn't meet European standards.

I believe that the new government doesn't even have a concept of a judicial
system. There have been countless debates on the subject in the Verkhovna
Rada, to no avail. Our courts of law remain the same. You were right in
pointing out that they switched sides after the elections, and that they're
playing up to the new government.

KUCHMA'S "MINOR CASE"

[The Day] Initiating legal proceedings against a president was
unprecedented in the post-Soviet space. What did that mean to you
personally and to society?

Yu.V.: I didn't give a hoot about the public's response. I was concerned
about the legal aspect, what the law had to say on the subject. There are
precedents in world legal practice. Mr. Chirac still faces criminal charges
in South Korea; former prime ministers of Japan are under indictment, or
take the Berlusconi case. I think that such legal proceedings are much
easier there because their courts are truly independent; their
long-established judicial systems allow no meddling.

Take the example of the case where American policemen beat up a black
man. After the court acquitted the police officers, there were riots in Los
Angeles, accompanied by a surge in crime, including arson and looting. It
got so bad that the National Guard had to be called in, yet the court
rulings remained the same. Not in Ukraine.

Here everybody considered that in dealing with Katerynchuk's complaint after
the second round of the campaign, the Supreme Court committed blatant
violations of the law. But they said that the main thing was to uphold
justice. In other words, they had broken the law in the name of justice. In
the United States, our ill-famed law-can-be-twisted-whichever-way approach
doesn't work; they stick to the British law-is-law formula.

Getting back to your question, I realized that there would be retributions,
but I was sure then, as I am now, that I made the right decision, that I
acted in accordance with the law. I had citizens' grievances to consider -
and I might as well tell you that somehow all those complaints against
Kuchma ended up on my desk.

]The Day] Really? Why?

Yu.V.: I'm not sure: perhaps because no one else wanted to handle them. In
the first two cases I ruled to dismiss them. In another case I ruled that it
should be forwarded to the Verkhovna Rada for verification, and in another
case that the prosecutor's office should handle it. What led me to start
criminal proceedings in the third case? In 1999, the Constitutional Court
made a principled decision that stated that criminal responsibility begins
as soon as charges are laid.

Launching the criminal case at the very moment when I was examining it did
not mean criminal prosecution, because you can gather material and reach
the conclusion that a person is not guilty and that legal proceedings have
been started without justification. The principle of the president's
inviolability means that the head of state cannot be prosecuted, i.e.,
criminal proceedings can be initiated but he cannot be brought to court as a
defendant in a criminal case because certain procedures must be observed.

Therefore, even in this case I didn't act contrary to the constitution and
other laws in that particular case because the statements warranting
criminal proceedings were supplemented with evidence, Xeroxed copies
of accounts, US expert findings on Melnychenko's tapes, testimonies duly
received from Myroslava and Lesia Gongadze, also from Oleksandr
Yeliashkevych. In a word, there was evidence that had to be verified.

I couldn't send the case to the prosecutor's office and I couldn't verify
that evidence myself. I had to decide whether to dismiss the case (which I
couldn't because of the evidence) or forward it to the prosecutor's office
(which I couldn't do either, because there was that evidence), or initiate
criminal proceedings. The only option was the latter one: to open a case so
that it could be dealt with as a pre-trial inquest. I saw no alternative.

[The Day] That case sent a strong signal at the time, which was used by the
opposition. It would seem logical that you would be recruited by the former
opposition, the people who are currently in power in Ukraine. Have you been
offered any post by the new government?

Yu.V.: No. And you know what? I wouldn't want one.

[The Day] You mean you could have refused if you had been offered one?

Yu.V.: Absolutely.

[The Day] What about all those people who asked for your help in initiating
a criminal case against President Kuchma?

Yu.V.: They're all in important positions. Yulia Tymoshenko is our prime
minister; Turchynov heads the SBU; Moroz, Vinsky, and Omelchenko are
where they used to be, in parliament. Actually, I didn't expect any offers,
although I remember being told that from now on I would be showered with
lucrative offers. I would always say I didn't want any.

[The Day] Why?

Yu.V.: First because of my age; I'll be 65 this year.

[The Day] ...a proper age for a judge.

Yu.V.: Yes, I think that a judge becomes truly independent by this age;
also, s/he simply becomes wiser. But I still don't want it. Right now I'm
busy with human rights activity; I've wanted to do this for a long time. Do
you know how many violations the government is allowing right now? I, for
one, doubt that the actions undertaken in the Kolesnikov case are correct.
Why place him under arrest on charges of abuse of office? There are
alternative sanctions legally prescribed for such cases. He isn't a murderer
or rapist.

[The Day] Did you watch Rizak being arrested on television?

Yu.V.: I remember how the ailing heads of the Unified Power Systems of
Ukraine, were being escorted under guard, the accountant, Yulia
Tymoshenko's father-in-law. At the time I said that our courts were
fragrantly violating human rights, when you see people wearing masks
coming to take away a woman on a stretcher. At the time everybody,
especially our opposition, was outraged. Yet similar things are happening.

[The Day] You know what the most horrifying thing was about that video
footage from Uzhhorod? There were MPs trying to defend Rizak, but no
medical personnel, no one wearing a white gown, said," Leave him alone,
he's a patient."

On the other hand, if he wasn't sick but hospitalized nevertheless, someone
ought to have been held legally responsible for such professional falsehood.
Yet if he was in the hospital on lawful medical grounds and all this is
happening, what about the Hippocratic Oath and professional dignity?
What does this say about a society where fear still exists?

Yu.V.: Dragging a person off his hospital bed to a detention cell is an act
of sheer lawlessness. It's a flagrant violation, and it's glaringly contrary
to our criminal procedural code and the European human rights convention.
In this sense I don't understand Mr. Piskun, who was supposed to have
supervised the law enforcers, and Interior Minister Yuriy Lutsenko, who had
talked a lot about human rights violations under the previous regime.

[The Day] Probably the answer to this question can be found in a recent
interview with our speaker, who stated that all those who currently wield
power are baby birds from the Kuchma nest?

Yu.V.: I absolutely agree. If I were Viktor Yushchenko, I would apologize to
all those who were involved in the events of March 9, 2001, when officials,
among them the current president, who was then prime minister, branded
them as fascists. Those people were acting under the same slogans as
those used during the Orange Revolution.

[The Day] Your decision to start criminal proceedings against Kuchma gave
the opposition a fresh impetus. Then it came to power, and once again Judge
Vasylenko is defending the law, primarily in the human rights sphere. And
this judge holds no posts or official decorations. Have you received any
awards? Maybe you're a "Hero of Ukraine"?

Yu.V.: Are you kidding? How can I be a hero after acting on the right side
of the law?

[The Day] But this is what could be described as heroism in our country.

Yu.V.: No one seems to remember that I returned the largest number of
not-guilty verdicts under the Soviets, and that I had the largest number or
convicts released in Ukraine. This is what makes me proud, not my
decision in that "minor Kuchma case".

[The Day] ...A minor case that proved to have major repercussions.

Yu.V.: No repercussions I can think of.

[The Day] Really? Meaning that your principled stand was in vain?

Yu.V.: No. I forwarded the case to the General Prosecutor's Office for
verification; I wanted to make sure that the available evidence was
truthful, namely, whether or not Leonid Kuchma was involved in the abduction
of journalist Gongadze and the assault on MP Yeliashkevych; whether he had
some politicians illegally tailed, and whether he had received any bribes.
This case cannot be shelved; sooner or later a decision will have to be
made, even if the case is closed for lack of evidence.

[The Day] When do you think such a decision could be made?

Yu.V.: I don't know. I'm not sure about General Prosecutor Piskun's stand.
He and I haven't been able to understand each other from the outset. I've
never evaded any questions from journalists. Once a reporter asked me
how I felt about the tax militia starting 6,000 cases, with only 5,000
reaching the court (Mr. Piskun was then the head of the tax militia's
investigation department).

I said there could be several possibilities: (a) poorly-qualified tax
militia investigators, (b) bribe-giving and taking (with cases closed after
envelopes changed hands), (c) phone calls from upstairs about certain
businessman best left alone, (d) family relations.

Mr. Piskun was offended by my interview and wrote to me that I had
"maligned the entire State Tax Administration." I replied that I hadn't
maligned anyone but simply voiced my personal assumptions - all the
more so as they were based on concrete examples from my judicial
practice.

My second confrontation with Mr. Piskun took place after his secret
denunciation about me to Suzanna Stanyk, then Minister of Justice of
Ukraine. He wrote that I was involved in an unlawful judicial formation. In
reality, the 1990 Helsinki Watch group had organized a mock trial called
Feldman vs. the General Prosecutor's Office, with lawyers arguing the case
for Mr. Feldman (then in custody) and for the General Prosecutor's Office.

I was invited to preside over the trial. I was given a gavel, like in an
American court, and I called the courtroom to order. There was a mock jury,
too. Mr. Piskun, however, took the whole thing to heart and wrote his
denunciation. I didn't organize that mock trial; I simply played the role of
judge - like on that Russian TV show. But I was officially reprimanded for
having created an unlawful judicial body.

UKRAINIAN SOCIETY'S PATHOLOGY: FEAR

[The Day] Has it every occurred to you that everybody is perfectly aware of
what's going on, that they're simply acting according to different
principles and that a very complicated and unfair game is being played out?

Yu.V.: Colleagues keep telling me that I am a rara avis and will remain one.
But I can't act any differently. And they agree that I had a point. When we
gather in the conference room (three or four judges, depending on the case)
I always tell them no pressure will be tolerated from any quarter.

The judge handling the case may agree with me that there isn't enough
incriminating evidence, but then he goes to his superior. I ask him why, and
he replies that he wants to convince himself. In the end, he returns
red-faced and depressed after being reprimanded.

[The Day] You mean he leaves thinking one thing and returns with the
opinion of his superior?

Yu.V.: Precisely. I then ask him if he will move to dissent, and he says he
won't because he is on a housing improvement waiting list and that his
superior will have him struck from the list if he acts contrary to his will.

]The Day] This reminds me of a line from a song: "He knew the earth was
turning, but he had his family, too." How can this vicious circle be broken?

Yu.V.: The staffing policy principles within our judicial system must be
revised. Rumor has it that getting appointed as a judge costs a sizable sum
and the closer to Kyiv, the higher the stakes. This mentality is hard to
change.

[The Day] Are these the consequences of a thousand years of slavery?

Yu.V.: I guess the main reason is that we lack adequate laws on the judicial
system; also, whether we like it or not, our judges must have higher wages.
And we must get rid of the Supreme Judicial Council.

[The Day] Our president recently admitted that the new government is making
mistakes in its staffing policy, saying that "We need honest people capable
of doing their duty and caring about this nation, people who really love
fellow their neighbors, who are prepared to serve them in good faith. Where
can we find such people? This matter will take time." Indeed, where can we
find such individuals? We have posed this question to our experts. What's
your opinion?

Yu.V.: It's a real problem. I have mentioned that we have a sort of
"corporation" of judges. I would never have made my way up to the Supreme
Court. My post at the Appellate Court would never have become a reality had
they known me better, for I've always fought the presiding judges' stands
and championed independence.

[The Day] They say that Vasyl Stus was a man whose decency was incompatible
with his life. What kind of system do we have, in which the normal behavior
of a normal person is regarded as an exception from the rule? Have you been
told that you resemble Don Quixote, even physically? Have you been tilting
at windmills all your life?

Yu.V.: No, I've been told that I look like Viktor Ivanovich from the Bandit
St. Petersburg Russian TV series. A cabbie once told me, "Hey, you look
like the twin brother of Antibiotic [V.I.'s underworld alias]!" I told him I
was on the right side of the law, but he charged me half the fare anyway. Is
this pathology? There are certainly intellectual and decent judges,
including in the Appellate Court. But, they're scared to hand down fair
judgments because they have families and they want promotions.

[The Day] Perhaps the reason is that our society was treated to an overdose
of Stalinism at one time?

Yu.V.: Probably. Fear is what afflicts our society. People are scared of
everything. They don't seem afraid of losing their dignity. I ask someone,
"How could you send an innocent person to jail? You knew he was innocent,
didn't you?" And I hear in reply, "So what? He wasn't the first and he won't
be the last. We'll have a great many other cases like that one."

That's the attitude-complete indifference. I believe that our judges'
occupational hazard is being indifferent to all those people they're
throwing behind bars. They tell me, "Why should you feel so concerned
about all of them?" I do because I can't act differently. My last case
involved two young fellows, each of whom received 8-9 years. I did my best
to convince the judge that there was no conclusive evidence and was told,
"Just look at them, they're liars."

I asked about the victims and was told that they were also liars. I finally
said I'd move to dissent - which I would do more often than not while in
that court. So what? We're talking a new kind of judge.

I believe that one day we will have them; they're already appearing. What
we need is comprehensive judicial reform, including judicial
self-government. -30- [The Action Ukraine Report Monitoring Service]
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LINK: http://www.day.kiev.ua/138392
===============================================================
UKRAINE INFORMATION WEBSITE: http://www.ArtUkraine.com
===============================================================