Petro Symonenko, leader of the Communist Party of Ukraine, will not be running in Ukraine’s presidential election. On 2 February, the Central Election Commission refused to register his candidacy, citing a July 2015 decree by the Ministry of Justice. According to this order, the party’s charter, name and symbols do not adhere to Ukraine’s “decommunisation laws”, which, among other things, ban the use of Nazi and Communist symbols.
This isn’t anything new: the ministry’s decree was published in 2015, when the Communist Party of Ukraine (KPU) was prevented from running in Ukraine’s local elections. The Ministry of Justice refused to notarise copies of the party’s application for the same reason – the party’s symbols, name and charter contradict the “decommunisation law”. And without these documents, the Election Commission could not register the party, nor its candidates for the elections.
The Communists tried (and failed) to appeal against this decision in a number of different courts, demanding an independent evaluation of their application. But the first instance court, the Kyiv city regional administration court, refused their appeal. The higher administrative court of Ukraine ended the matter, refusing the KPU’s cassation appeal in January 2016.
Today, this story is repeating itself: the authorities are not preventing Symonenko from running (he could run as an independent candidate), but the Communist Party, even though the party is legally allowed to operate in the country and has not been banned by the courts. Symonenko has already called the Election Commission’s decision “discrimination and refusal of rights not only for members of the party, but many people who sympathise and express their support for us.”
National television, radio and newspapers have paid little attention to the KPU’s court battles, limiting themselves to factual reports. But analysing the court documents shows a different side to the problem: this is a deeply political case, and judges have come under pressure from law enforcement.
A short history
In January 2019, the news that the Communist Party was holding its 54th Party Congress, and advancing Petro Symonenko as its presidential candidate, shocked many. Surely the KPU had been banned back in 2015? As it turned out, Ukraine’s Communists are still operating legally.
The KPU was first banned at the peak of perestroika, on 30 August 1991, as a consequence of the failed coup by a section of the Soviet ruling elite. It seemed that the end of Soviet power would bring an end to Ukraine’s Communists, too. Their ideology didn’t really fit in with building a new democratic state with a liberalised economy.
But only two years later, in 1993, the Presidium of the Supreme Council of Ukraine reneged on its 1991 decision, ruling that Ukrainian citizens who support communist ideas can create their own parties. And a few months later, a new “renewed” Communist Party was established via a congress held in Donetsk. Old cadres attempted to get the KPU completely rehabilitated – the party had previously been a member of the Communist Party of the Soviet Union (KPSS), but was, at least formally, considered an independent party. And in December 2001, ten years after the first ban, Ukraine’s Constitutional Court ruled that the renewed Communist party of Ukraine bore no relation to the KPSS, opening the gate for full rehabilitation.
In 2002, a congress was held to unify the “old” and “new” KPU, and Petro Symonenko was elected leader. Later, several other new communist parties were set up, but these groups never attracted a mass membership, although the KPU continued to lose supporters from one election to the next.
This stagnation could have run on eternally if it wasn’t for the events of 2014, when the post-Maidan authorities decided to ban the Communist Party once and for all.
Pressure on judges
In May 2014, Ukraine’s acting president Oleksandr Turchynov requested that the Ministry of Justice examine banning the KPU. The reason? The party’s complicity in separatism in eastern Ukraine and calls for overthrowing the new authorities in Kyiv. Less than a month later, Valentyn Nalivaichenko, director of the Security Service of Ukraine, stated that the documents necessary for banning the KPU and removing parliamentary immunity from its deputies, had been handed to the Ministry of Justice. And in July, the Ministry of Justice reported that it had filed a court case to ban the KPU.
Case 826/9751/14 made its way to judge Valeriy Kuzmenko at the Kyiv city regional administrative court. But it was never examined. On 18 February 2015, Kuzmenko recused himself and refused to examine the ministry’s suit. As stated in a decision by the court, the judge was subject to pressure from Ukrainian law enforcement. In particular, on 16-17 February, law enforcement officers searched Kuzmenko’s office, confiscating administrative case files and the judge’s computer. The search was conducted as part of a different criminal investigation, which Kuzmenko was examining.
On 17 February, judges at Kyiv city regional administrative court held a meeting, at which colleagues recommended Kuzmenko recuse himself in the KPU case given the pressure on him. Moreover, the remaining judges also refused to examine the case, and the suit was transferred to the Kyiv regional administrative court (which presides over Kyiv region, rather than the city court).
But the case wasn’t examined at this court either. KPU representatives appealed the case’s transfer, and for four years, courts of different instances have failed to start examining the case in earnest. It has simply sunk to the bottom of the bureaucratic pile.
Kyiv regional administrative court took one of the latest decisions on Case 826/9751/14 on 13 December 2018, transferring it to the appellate court. But at the Sixth Appellate Court, KPU representatives suddenly withdrew their appeal. And on 22 January 2019, the appellate court took another decision, returning the case to its initial stage.
When the Ministry of Justice realised that they couldn’t ban KPU on the basis of criminal accusations, they initiated a new court case based on articles of the “decommunisation law”, as its known in Ukraine.
In July 2015, the Kyiv city regional administration court opened a new case (826/15408/15) on the basis of the Ministry of Justice’s suit against the KPU. The case was, once again, assigned to the same judge, Valeriy Kuzmenko, who five months previously had refused to examine a case against KPU on accusations of separatism. But the judge’s position had changed, and Kuzmenko did not believe he was still under pressure.
This new suit took the Ministry of Justice’s July 2015 decree, and the legal conclusions of its expert commission, as its basis. Indeed, the conclusions of the expert commission – on the KPU’s charter, name and symbols – would play a key role in this case.
As it turned out, the majority of the members of the expert commission were, at that moment, employees of the Ministry of Justice. In effect, this meant that the ministry prepared its own legal conclusions and then presented them as the conclusions of an expert group, rather than the position of the ministry itself.
In the court decisions in this case, you can see repeated attempts of KPU representatives to force an independent analysis and reevaluation of the conclusions. But the court refused these appeals. What’s more, this new case was subject to written examination, despite the KPU’s appeal for a public examination – an opportunity to prove its position or present witness testimony.
In December 2015, the Kyiv city administrative court satisfied the Ministry of Justice’s administrative suit and banned the KPU from operating. This news spread quickly through the media. But these reports did not clarify which case was being discussed, and it was unclear whether this ban related to charges of separatism and treason.
While supporters of the ban cheered, the Communists filed an appeal at the court of first instance. And perhaps, as in the Election Commission’s refusal to register the KPU in the 2015 local elections, the Communists would have lost this case too. But everything changed in May 2017, when 46 Ukrainian MPs called on the Constitutional Court to recognise the “decommunisation law” as unconstitutional.
The Constitutional Court could have already examined this appeal if it wasn’t for a series of circumstances that complicated the “political” side of the decision. A few days after the KPU was banned in December 2015, the Council of Europe’s Venice Commission, which advises and makes recommendations on constitutional matters, made a series of recommendations to the “decommunisation law”. And although the Commission recognised the right of parliamentarians to introduce bans on totalitarian symbols and ideology, the Commission stated that several paragraphs of the decommunisation law were not formulated clearly enough and could be subject to a broader interpretation. This ambiguity concerned a possible ban on certain parties’ operating and participating in elections on the basis of their name, rather than the basis of anti-constitutional activity, as established by a court.
Amnesty International also joined the criticism of the KPU ban, calling on the authorities to withdraw the ban. “The banning of the Communist Party in Ukraine sets a very dangerous precedent. This move is propelling Ukraine backwards not forwards on its path to reform and greater respect for human rights,” said John Dalhuisen, Amnesty International’s Director of Europe and Central Asia. The organisation’s main claim was that the party could be banned or its members prosecuted on the basis of public demonstration of the party’s symbols, rather than any possible genuine offence.
As the court decisions on banning the KPU and refusing participation in elections show, this was precisely the risk that the Venice Commission indicated. The Constitutional Court of Ukraine will find it hard to ignore these circumstances.
Perhaps the sobering reaction of the Venice Commission changed the trajectory of the court case to ban the KPU. Eighteen months later, in September 2017, the Kyiv regional appellate administrative court paused the appeal against the ban until the Constitutional Court decided on the constitutionality of the “decommunisation law”. Thus, the first instance court decision is yet to come into force.
The Ministry of Justice has attempted to appeal the appellate court’s decision, but the Supreme Court’s Cassation Administrative Court has decided that the case cannot be examined until the constitutionality of the “decommunisation law” is decided on.
A paradoxical situation has emerged: the Ukrainian authorities continue to declare pro-EU policy, but in practice the recommendations and warnings of the Venice Commission are ignored. And the Communist Party, which is permitted to operate legally, is once again prevented from participating in elections.