The Daily Trouw interviews Oleksandr Volkov on rule of law in Ukraine

3 April 2014

“Each party tried to get the judges into their own pocket”

Translated by Victor Kuijpens for the Daily Trouw

It’s not every day that a judge takes someone to court. Ukrainian judges Oleksandr Volkov and Oleg Bachun turned to the European Court of Human Rights when they were removed from office by the Yanukovych government. The court acknowledged Volkov’s rights last year and this week the parliament will reappoint him as a judge.

But that is not the end of Volkov and Bachun’s mission. They are fighting for nothing less than the restoration of the rule of law in Ukraine. Trouw spoke with both judges during their visit to the Dutch foundation ‘Judges for Judges.’

Oleksandr Volkov will soon be admitted to the Ukrainian High Council of Justice, the very same council from which he was removed. According to Volkov this was because he was trying to reform the judiciary. “In new democracies, legal traditions such as the separation of powers have not yet been fully implemented. Some colleagues did not believe that I would dare to change that. But I did it anyway.”

“I noticed that politicians around President Yanukovych tried to undermine my position,” said Volkov. The High Council of Justice found a four-year-old case and decided that Volkov had made procedural errors and broken his oath as a judge. However, the court was biased, as the European court ruled last year. Volkov said “Thirteen of the sixteen members [of the High Council of Justice] were politicians, appointed by Parliament and the Minister of Justice. They had neither power nor the competence to assess legal proceedings.”

The chairman of the parliamentary committee that subsequently fired Volkov also sat on the council that provided the advice. At the chairman’s insistence, the committee followed his advice. Most MPs were absent and their voting cards were used by their colleagues. Volkov instantly lost his job. “There was much publicity; untruths were proclaimed in the press.”

Volkov’s colleague Bachun can actively contribute to the conversation. As the highest administrative judge in Kiev, he handled many cases to which the Ukrainian and Russian authorities were parties. For example, when former Prime Minister Yulia Tymoshenko sold government property in the Crimea to Russia. Bachun commented “The price offered was only a third of the actual value. That could not be in the interests of Ukraine. I therefore prevented the sale.”

That is also what happened with the construction of a large sanatorium for Russian President Putin next to a historic palace in Crimea. Bachun: “Building on such a special site requires the permission of the regional parliament. Because permission was lacking, I reversed that decision as well. This way I created political opponents.”

Lawyers from various political parties began to threaten Bachun with removal from his position. “Then their spin doctors began an witch hunt against me in the media. A legal journal published my picture with a ‘wanted’ sign underneath. I supposedly received my pedicures at work; I allegedly spent twenty thousand dollars on ‘questionable’ places in Turkey. There were hundred different articles about me, my wife and my family.”

Bachun tried to ignore the allegations, but the spin doctors spread a false statement that he had filed against a magazine. “They even made a website in my name and they organized a press conference on my behalf. Everyone was invited except me.”

In tandem with the character assassination of Bachun, the prosecution initiated a criminal investigation into all of his travels. “They dug up my whole life. They followed me on the street, tapped my phone and broke into my house. The pressure was immensely high, but I refused to resign. Then they prosecuted me for breaking my oath of office, as happened to Oleksander.”

The political processes against Volkov and Bachun illustrate the vulnerability of the rule of law in Ukraine. In Volkov’s case, the European Court of Human Rights has already concluded that “this case reveals serious, systemic problems in the functioning of the Ukrainian judiciary.”

With a conviction rate of ninety nine percent and a deceptive ‘separation of powers’, the lack of rule of law is a major obstacle to investments, the fight against corruption and the democratic process. Bachun: “In 22 years of independence I have seen the same thing under different regimes: Kuchma, Yanukovych and Yushchenko to a lesser extent. Each party was trying to get the judges into their pocket.”

Volkov and Bachun hope that this will change with the ruling of the court and the new government. The Council of Europe will ensure that Ukraine follows the ruling. Volkov is optimistic: “With the signing of the EU Association Agreement, Ukraine promised last month to adopt the political standards of Europe. There must be a genuine separation of powers and a truly independent judiciary.”

However, Volkov has some reservations. “A lot of mistakes are still being made at the moment, especially since the old parliament is still in session. “Bachun explains: “We are waiting for a political vetting, as happened in the nineties in Poland. Officials should have to answer for their actions. Then they hear whether they may retain their positions.”

Aren’t Volkov and Bachun afraid that the new rulers will replace judges and officials in the same way as before? Volkov: “They have no choice but to change. Lives have been sacrificed for a healthy, democratic state. The protesters on Maidan stood for a different life, for the European choice and a professional government. It’s the dream that we still support.”