10/29/2002 | Andriyko

Я намагався скомпілювати наведений тут проект та попередні думки з цього приводу. Ось що з того вийшло:

Mr. Wesley Pruden
Editor-in-Chief
The Washington Times
3600 New York Ave., N.E.,
Washington, DC 20002


Dear Sir,

Your newspaper published the article «Kuchma is likely to avoid a probe» where telephone interview of Mr Sviatoslav Piskun, the Prosecutor-General of Ukraine was used partly. Unfortunately, Mr Piskun, deliberately or not, misinterpreted certain facts as well as true meaning of Ukrainian laws. Guided by ancient principle of justice «Audiatur et altera pars» («Be other party heard»), this is my responsibility to make some comments to what Mr Piskun noticed.

First of all, as a judge, I never allied myself with any person, either official or not, legal entity, political party or some politicians, but law and justice. I did not care about any hidden causes of opposition members of the Parliament who moved for the criminal case to be initiated as against the President. Furthermore, I did not care who moved for this and who would be a respondent. The only thing I felt committed to follow was strict requirements of the law. According to the Code of Criminal Procedure of Ukraine, this is not discretion but obligation of the judge to consider such motions and to decide on them. Thus, I had only one alternative before me: either to initiate a case or not. I had no grounds to deny the case since there was at least one episode described that even should not have been proven, namely, the President has never signed series of laws promulgated by the Parliament and, by doing or, sooner, not doing this, violated the Constitution. Should I have stated in my resolution that he had signed them?

Mr Piskun said that the Supreme Court of Ukraine moved the case back to the Court of Appeals, saying it had been improperly initiated. This is obviously not true and I really have no idea why Mr Piskun came to such an opinion. Anyway, this false information cannot be left without the answer. The Supreme Court has never tried this case in the view of my resolution's conformity with the law. The judges even have not come to this issue while ordering to consider whether the General Prosecutor's Office (the «GPO») had the right to appeal against the resolution and granting the opportunity to comment on the GPO's appeal for members of the Parliament who moved for the case to be initiated. Unfortunately, all these preliminary procedural acts where omitted at the stage of filing the appeal by the GPO. Currently, my resolution on the initiation of the criminal case is not repealed, it is fully in effect and the case is not dismissed.

Mr Piskun also claimed that my resolution and the very case are illegal since the President «has not been charged with any crimes and cannot be charged under the Ukrainian Constitution, which grants him immunity from prosecution while he is in office». Almost the same statement, with reference to Article 105 of the Constitution of Ukraine, was made by Bohdan Futey, a well-known judge of the U.S. Federal Court of Claims. I agree with both gentlemen but only to the extent that the President does enjoy the immunity. Nevertheless, this immunity refers to the prosecution only but not to the jurisdiction of Ukrainian courts. I have not lodged any charges against the President nor did I start the prosecution. I just started the case that only has prosecution as an indefinite prospect.

Mr Futey stated himself that the immunity of the President with regard to criminal prosecution is the same as members of the Parliament enjoy. Why didn't he refer to the judgement passed by the Constitutional Court of Ukraine on 27 October 1997 (Case No. 1-15/99) then? In this case the Constitutional Court faced the issue of interpretation of the deputies' immunity from criminal prosecution. In particular, the answer was to be given when criminal prosecution starts. Finally, the Court was positive that criminal case comes in the stage of prosecution when charges are made and called out to the suspect but not when the case is initiated. Consequently, bare fact of opening the case does not mean that some person, even if it is the President, is criminally prosecuted. In other words the case is started by its initiation and prosecution is none but the next and very different stage of the proceedings. At the same time I met with much surprise the fact that the Prosecutor-General cannot see any distinction between these two stages. Therefore, I am quite sure that I had the right to initiate this case. Ukrainian judiciary had some precedents of cases being initiated against members of the Parliament but no charges were made in these cases.

Mr Piskun also said I withheld evidence from prosecutors. This statement is something really strange. All the facts referred to in my resolution have been covered by media for at least two years, so it is very hard to understand what kind of secret Mr Piskun meant. Finally, it is simply impossible that some other judge is treating the case in the Court of Appeals now while the case has not been sent back from the Supreme Court yet. Thus, no judge at all is in charge for the case by now.

I really did not want to enter any public disputes with regard to this, frankly speaking, extraordinary case and the only purpose of this letter is to give the audience a clear picture of what Ukrainian law says and where some officials do not want to hear these simple and clear words, blaming judges who just followed them.


Sincerely Yours,

Yuri O. Vasylenko
Judge of Kyiv City Court of Appeals