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Viche 2009 23

23, 2009

Themis as arbiter. Judicial control after an electoral process

That nearer to the fifth anniversary of Area and new presidential elections, more expressly a historical trial in Supreme Court, the decision of which brought us over in third times on election districts, appears in memory. It enabled to settle a sharp social conflict and avoid serious collisions between the supporters of two candidates. 

Presumably, that is why such frisky and professional was a discussion about the role of judicial control after the future by an electoral process, organized the release of newspaper Voice of Ukraine. At the round table a problem was discussed by the doctor of legal sciences, professor, permanent representative of Verkhovna Rada in Constitutional Court Anatoliy SelIvanov, folk deputy of Ukraine Yuriy MIroshnIchenko. 

As known, till recently spores in relation to legal relationships, related to the electoral process, were examined in the order of the civil legal proceeding.  After going into effect procedure of appeal of decisions, actions or inactivity of participants of electoral process, tested substantial changes Code of the administrative legal proceeding of Ukraine (farther CASHDESK) taking into account character of electoral disputes, necessity, them operative decision and influence of this factor on stabilizing of political situation in the state. In accordance with CASHDESK of justice in matters, related to the electoral process, carried out the Higher administrative court of Ukraine (farther VASU), appellate administrative, circuitous administrative and, on occasion, by the county courts of general jurisdiction as administrative courts. 

In Law On elections of President of Ukraine next to material there are many norms especially of judicial in accordance with which courts together with election committees are called to carry out such right. Unlike election committees the feature of judicial control is a tie-up of him with complaints and points of claim. Thus he is carried out not in general terms, foreseen the administrative legal proceeding, but in brief 5 days and 2 days. It means that a court can not independently put a question about violation of the right to vote of citizens, even if it knew him about it under certain circumstances. Feature in public legal disputes consists in that a court can not come forward the active participant of process, but he is the arbiter of sociallegal direction. Court in interests of society (social aspect) and in interests of subject of electoral process (legal aspect) provides the decision of disputes, conflicts which arise up during an electoral process, a professor established.

The substantial lack of operating normative base is a presence in the financial electoral legislation of row of norms of judicial character, which touch realization of the administrative legal proceeding. Thus positions of some normative acts conflict with judicial norms CASHDESK. Investigation of such inconsistency was become by presentation of points of claim plaintiffs to the courts of different instances with violation of rules of subject and territorial cognizance.

As an electoral process already began and all attention tied down in the Kievan appeal administrative court (farther KAAS), Iryna SaprikIna, vice-chairman and judge of this court, told, that zakonotvorci at one time had mixed up in one court that, as seem, mixing up is impossible, first and second an instance. From now on during elections our court is the first (from the certain category of businesses) and second instances, and also appellate in relation to businesses, jurisdiction the circuit administrative courts of the first instance and county courts as administrative from the certain category of businesses. 

A court is consider over 60 businesses already, part from which is appealed in VASU, where judges mark that in KAAS is correctly used an electoral legislation and decision is accepted correct. Thus there was  a new legal collision: in the case of transmission for consideration of the Kievan appeal administrative court of appeal of actions or inactivity of CVK so not certainly legislatively, what order so goes the world must be examined in. A department judicial controls a process only, however in any case can hinder him or create grounds for raising a question in relation to legitimity of novoobranogo President. Exactly herein a task a court consists as an effective instrument of control after legality.

To prepare to judicial wars-2010? Folk deputy of Ukraine Yuriy MIROSHNICHENKO: There indeed is a row of collisions and inconsistencies. And task parliament which passed in the first reading an Act About making alteration in Law On elections of President of Ukraine, to take into account problem questions during preparation of document to the second reading. At the terms of this hustings the role of courts conducts again. And the question of legitimity of select President will be examined and Ukrainian society, and international observers, and political forces, through the prism of objectivity and justice of decisions which will accept courts. 

Our principle equality of sides Flamed up a frisky discussion, which Olena Evtushenko, judge of the Appeal court of city of Kyiv, is during, disagreed with determination, that a court comes forward the defender of rights for citizens: A court is a not defender, and he protects nobody. Accede to the term of mister of professor, that a court is an arbiter, he decides spores and awards judgment in accordance with a current legislation. Otherwise principle of equality of sides will be broken in a process. Judge also stopped for the problem of cognizance: A legislation talks expressly: if a person appealed to the court with violation of rules of cognizance, a statement is returned it that went it to the proper law. Although by such method limited a right for a citizen to protect the rights. In fact before a judge was similarly at the level of law obliged to send a statement in a competent court. On a question of editor-in-chief of magazine Viche Svitlana Pisarenko about the possible reiteration of experience of 2004 and about ability of parliament to barrier from it a country by bringing in the legislation of the proper changes answered And. SelIvanov: The subjects of electoral process, especially so-called technical candidates, can take advantage of the right on an appeal on any stage of electoral process. There is probability of judicial wars, and a most danger is herein covered, when a country will be pulled in in endless judicial spores. At that rate the type of kvazikontrolyu will have judicial control. That member of parliament presently try to repair a legislation about an electoral process, but not forget that KSU must say the word also. Y. MIROSHNICHENKO