The legalities of the Klitschko candidacy – ECHR next stop?January 17, 2014
Way, way back on 1st July 2013 I wrote about the Rule of P and Article 103 of the Constitution of Ukraine being a necessary consideration that required confronting soonest by Mr Klitschko and his legal team.
This was long before Mr Klitschko announced his presidential bid officially, and long before Tax Code amendments were used to add further difficulties to his challenge.
In fact I wrote it long before it became fashionable to think about somebody using a long existing law with an elastic – until defined – word such as “residency” to scupper any presidential ambitions he may have then held.
Since then that definition of “resident” would seem to have been dealt with by subsequent amendments to various laws.
It was to be expected albeit probably for politically nefarious purposes now – but an issue within the constitution that sooner or later needed to be defined.
Perhaps the RADA will eventually get around to defining what a “jury” is and then allow every Ukrainian their constitutional right for a trial by jury so far deprived of them by every president and parliament since the constitution was adopted.
Anyway, yesterday, Mr Klitschko rightly pointed out that those aforementioned laws defining “resident” have been amended to act as additional hurdles to his candidacy – which of course they have as I predicted long ago.
The Central Election Commission quite wisely and quite rightly referred the new laws to the courts, as despite Mr Klitschko officially announcing his presidential bid prior to legal changes being signed into law, he has not yet registered as a candidate for the presidential elections with the CEC as far as I can tell.
Thus the laws are seemingly in place prior to his official candidacy registration by way of bureaucratic requirements, despite public proclamations.
Though the laws have been amended after he officially stated he would run but seemingly prior to any official registration, the question of retrospectively applying the laws is raised – should they be ignored as he announced his candidacy prior to the new laws taking effect, or should they be robustly observed as they were the law prior to the formalities of bureaucracy?
Subjective and emotive questions to one degree or another depending upon the point of view of the reader.
If there is a current upside, Mr Klitschko has a point relating to the fact he is currently an MP and thus must have met the criteria to run for that position – including the “residency test” previously. The only difference between MP and presidential candidacy requirement being 21 years or older and the previous 5 years resident in Ukraine for an MP, and 35 years of age and the previous 10 years resident in Ukraine for president.
That said, he met the MP criteria when “resident” had a far more elastic interpretation than it does now after legal amendment – somewhat muting that line of arguement for some.
Further I very much doubt the CEC even bothered to consider “residency” in great detail when allowing his candidacy previously – the stakes were not that high that anybody was paying attention to a party leader on a party list nomination whose party popularity and political future was then unknown – Such nit-picking and far more exacting scrutiny occurs for those candidates involved in the first past the post electoral seats where the CEC and regional subordinates are subjected to intense political pressures from all sides to do things “this way” – or “that”.
Thus, now starting to predictably lose court battles in Ukraine relating to the new legal definitions of “resident”, Mr Klitschko has stated matters may progress to the European Court of Human Rights – Quite right, but will it do him any good as far as the 2015 elections are concerned?
I closed my 1st July 2013 entry with a paragraph dedicated to timeliness and he need to deal with Article 103 of the Constitution immediately.
When I wrote it there were 22 months before the March 2015 elections. There are now only 14 months.
As yet, Mr Klitschko has not been prevented from running for president – thus there has been no possible breach of his human rights to rule upon – yet.
Any such breach will come down to whether the ECHR considers that the legal amendments were deliberately done to prevent his running specifically – or not. There is little wrong with the actual law or the subsequent defining of “resident” for constitutional clarity going forward.
The question is therefore if/when this law will be applied to Mr Klitschko. The later it happens, the later he will appeal to the ECHR – and the ECHR is not the court you want to be approaching for swift legal rulings. Even expedited cases take a year or more for any initial hearing to occur in Strasbourg – longer to actually get a full hearing and legal outcome.
It also has to be noted that even if there is an ECHR hearing and ruling that miraculously occurs within record ECHR time frames, it can be appealed, and thereafter Ukraine would still need to implement any such ruling if the ECHR ruled against Ukraine.
The ECHR may be the court of last resort – but it is also the most glacial of entities with a very long waiting list of cases.
Again I return to the matter timeliness I raised 8 months ago. Presidential election dates were already known, Ukrainian court rulings easily predictable, and the speed at which the ECHR works is clear to all.
Lastly, for the purposes of this entry, Ukraine would not be the first nation to stall or fail to implement an ECHR ruling – many don’t or take considerable time in getting around to doing so – the UK has more than 20 such outstanding and unimplemented ECHR rulings, some of which are years old – including those of an electoral nature. The UK is not the only sinner in this regard either.
Thus, all I anticipated almost 8 months ago when the situation in Ukraine was markedly different than it is today, still holds true – and the ECHR, I fear, will come far too late to help Mr Klitschko if the March 2015 electoral date is to remain immovable.
(Later, possibly some thoughts on a few very worrying laws submitted to the RADA today that point toward a possible Belorussian future!)