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December 13, 2004

Svitlana Kravchenko and John Bonine: Kiev’s Independence Square lives up to its name

Register- Guard Guest Viewpoint:

Ukraine might yet taste justice

December 10, 2004 
By Svitlana Kravchenko and John Bonine

Maidan Nezalezhnosti is the name of a public square in the center of Kiev. For two weeks, hundreds of thousands of Ukrainians have been demonstrating there against election fraud.

Until recently, the official name of this public space – Independence Square – had only a formal meaning. The truth is that Ukraine never had to fight for its independence. Independence fell at Ukraine’s feet in 1991, as the Soviet Union collapsed.

But in the past two weeks, a new kind of independence has been created in Ukraine. It not political independence from another country. It is an independence of mind and spirit.

Flocking to Independence Square to protest an election that they see as stolen, students, teachers, business owners and workers have proclaimed themselves independent of the corruption and passivity that for the past decade has plagued most of the countries formerly in the Soviet Union. The corruption breeds the passivity – a feeling that no matter how much an individual might strive to make independent decisions, important results will be dictated by the corruption instead.

 After visiting America years ago, one of us returned to teaching classes in Ukraine and asked a law student, “What is your opinion on this law?” He looked concerned and nervous. He was used to being told what to think, not to express his own views.

 “My opinion?” he asked. “Will it affect my grade?”

 In 1994, one of us created a nonprofit law organization, Ecopravo-Lviv, to help build the rule of law in Ukraine. The goal was to help citizens enforce environmental laws. We have had a few successes, but the courts often have been deaf. We know why. Even courts that try to follow the law learn where the real power lies.

 In a current case, Ecopravo-Lviv is trying to protect the Danube Delta Biosphere Reserve against a destructive canal planned by the Ukraine minister of transport. A judge in Odessa ruled against the reserve last summer. Afterward, Ecopravo-Lviv’s lawyer went to the judge’s office to get a copy of a document for an appeal.

 She found the judge in tears. The judge collected herself and explained that she had admired the solid legal arguments, but could not decide in our favor because, “Everybody except the president of Ukraine telephoned me.”

 Such telephone calls are prohibited in properly functioning legal systems. But during the Soviet era, “telephone law” was traditional. A Communist Party leader would call a judge and dictate a ruling. After the fall of communism, not much really changed – except it is a rich oligarch or the government officials serving him.

 In another high-profile case, a panel of judges told one of Ecopravo-Lviv’s lawyers this fall that the court’s decision would be postponed until after the presidential election. You can guess why judges might want to know whether the same old interests will be in power before they even think of ruling against the government.

 The decision of the Supreme Court of Ukraine last Friday to overturn the Nov. 21 election results as fraudulent could herald a new era for the rule of law in Ukraine. In acting, regardless of political pressures, to protect the voting rights of citizens, the Supreme Court has signaled that lower courts should start acting as independent guardians of the rule of law.

 During the Supreme Court arguments, which were televised in Ukraine and which we could watch through the Internet here in Oregon, the attorneys for the government often seemed ill-prepared. They had doubtless become lazy in their courtroom skills, knowing that decisions often were made for improper reasons, including bribes and political pressure.

 Perhaps after this independent decision of the nation’s highest court, other courts will take heed. Maybe the government lawyers will now spend less time trying to reach the courts through the back door and the telephone and have to spend more time studying their law books and learning to form good legal arguments. Perhaps that will become the pathway to success in court. If so, the rule of law will have finally arrived, after more than 10 years of our trying to build it.

 After people stood for two weeks in subfreezing weather in the streets to demand that their right to a fair vote be respected, the Supreme Court of Ukraine has shown the courage to uphold those demands.

 It has helped put real meaning in the name: Independence Square.

 Svitlana Kravchenko and John Bonine teach law at the University of Oregon. Kravchenko is also on the faculty of Lviv National University and president of Ecopravo-Lviv in Ukraine.

Read the full story in the Eugene Register-Guard

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