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 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)

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.

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.

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.

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.

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.

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)

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.

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.

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.

3 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803) (establishing the doctrine of judicial review).

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).

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.

That sounds a lot like American elections in big liberal cities.

3 posted on 07/06/2005 7:46:37 PM PDT by Once-Ler (Beating a dead horse for NeoCon America)

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