28.07.2010 | Halya Coynash

The President’s Justice System


Early on 27 July the media made our day with the news that “Yanukovych will oversee every violation of journalists’ rights”. The words would seem to have hypnotized everybody and sped triumphantly through the Internet without a scrap of commentary.

Yet the circumstances – reporting the latest meeting between the President and Minister of Internal Affairs – might have sent warning signals. After all, at the end of March the media just as joyfully reported the President’s words to that same Minister Mohylyov calling plans to “shut the part of the MIA structure which deals with human rights ill-considered” and saying that measures must be broadened to protect human rights, not the opposite.

The Department on Monitoring Human Rights in the Police was closed, measures aimed at protecting human rights effectively stopped, yet meetings continue where the same Minister informs the same President “about implementation of the Head of State’s instructions regarding the safeguarding of human rights in the police”. The Deputy Head of the President’s Administration, Anna Herman assures a TV audience that the President has done everything to get the Department reinstated, while the government’s choice of “human rights activist” and now member of the MIA Collegiate, Edward Bagirov, states, also on air, that “nobody abolished the Department on Monitoring Human Rights, this structure is working.”

They understand perfectly that repetition is not just the mother of learning, but a potent tool in brainwashing.

We are now assured that Viktor Yanukovych “will hold all investigations of violations of journalists’ rights under his supervision.”  There is no explanation of why the President did not wish to discuss this with representatives of Reporters without Borders on 20 July, although the very next day he interrupted his holiday to put on an official reception for the Patriarch of the Russian Orthodox Church, Kyrill.

Nor do we learn what exactly is understood by Presidential supervision when journalist Serhiy Andrushko, who was physically assaulted by the President’s guard, cannot get a criminal investigation initiated for obstruction in carrying out his professional duties, and the management of the State Security Division refuse to even name the guard responsible, let alone dismiss him.

Then later on Tuesday the President pleased only his comrades by signing the Law on the Judicial System and Status of Judges. He signed a number of other laws, including the highly controversial law on the local elections, but for the moment I will concentrate on the law which, according to the President’s website, “defines the legal principles for the organization of the judiciary and exercising of justice in Ukraine. The said website is always reminiscent of toothpaste advertisements which fairly dazzle you with sparklingly white and clean teeth. The Law supposedly “introduces transparent procedure for the appointment of judges to office for the first time”. That the motives of the law’s authors are entirely transparent is not in doubt however this has nothing in common with transparent procedure for the appointment, dismissal and disciplinary proceedings against judges.

A lot has been written about this law, including an article whose title says it all: New Law on the Judicial System: hasty, low quality justice from intelligent but dependent judges.  It is worth noting that the draft law (at first two separate bills) was drawn up over a long period of time and several versions have been scrutinized by the Council of Europe’s Venice Commission. Judicial reform needs to finally get to grips with combating systemic corruption within the judicial system. Regrettably no politicians, regardless of their factions, have been in any hurry to part with the possibility of bringing pressure to bear on judges.

It would be nice to believe in a dramatic upsurge in civic thinking and sense of responsibility among members of the ruling coalition, as well as by the President who tabled the original bill in May. Credulity is, unfortunately, overstrained.

To begin with, almost all serious concerns expressed over this law relate to those changes introduced by the new regime. The most significant dangers are outlined in the Appeal to the President to veto the law and send it back with proposals. Some of the new provisions are in breach of the Constitution and European standards. They jeopardize the independence of judges and access for all citizens to fair court proceedings.

Instead of awaiting the opinion of the Venice Commission, the ruling coalition on 7 July simply went and passed a Law which even the internal Central Legal Department concluded fails to comply with the Constitution and Verkhovna Rada Regulations, and clashes with other legal acts.

In their extraordinary wish to carry out such “judicial reform” at breakneck pace, the National Deputies also managed to ignore doubts regarding some elements of this law expressed on a number of occasions not only by Ukrainian specialists, but by the Co-Rapporteurs of the Parliamentary Assembly of the Council of Europe [PACE] and some members of the Council of Europe’s Venice Commission.  The PACE Co-Rapporteurs pointed to a “number of potentially politically motivated provisions” and expressed concern over the President’s recent appointment of Valery Khoroshkovsky, Head of the Security Service [SBU] and media owner to the High Council of Justice especially given the “potential conflicts of interest as it is the State Security Service that is responsible for investigating any allegations against judges in Ukraine”;

Nor did the coalition members pay attention to the lack of the Opinion promised from the Venice Commission. This is particularly perplexing given the meeting in Strasbourg on April 27, 2010 between President Yanukovych and the Head of the Venice Commission.  The President’s website informed that the President had “initiated the meeting to discuss the process of judicial reform in Ukraine and in consideration of the need for the Commission to carry out an expert assessment of our draft judicial reform”.

The National Deputies weren’t prepared to wait. And it turned out that the Venice Commission only received the first reading version, although new changes were added after this.  Forced by the authorities’ lack of communication with the public, we wrote to the Venice Commission and received a response from the Head of the Commission stating that “these comments, due to lack of sufficient time, were quite preliminary indeed. They also do not relate to the final version of the law as adopted and do not relate to the law on the abuse of the right to appeal”.

By then it was clear that all speed constraints had been removed. Still, within a mere five days 130 civic organizations and concerned individuals signed our appeal, including many from Canada, the USA and Australia. 

They are all aware of the vital importance for Ukraine’s development and economic prosperity of an independent and impartial court.  It was precisely this that the President spoke of during the meeting on 27 April with the Head of the Venice Commission, noting quite correctly that “it’s impossible to attract foreign investment without an effective and efficient judiciary”.

Those were the fine words we have been hearing and reading in quantity. Yet on 27 July, the Guarantor of the Constitution signed a law which runs counter both to the Constitution and European standards and which must have dire consequences for the country. If he or his press service really believes that it’s enough to add a touch of verbal gloss to dubious and unconstitutional provisions, and everybody will believe that this is “judicial reform”, they should think again.

Investors do not need politicized puppet judges nor a regime which so brazenly tries to con people, paying no attention to the demands and interests of the public. Over just a few months the human rights situation has deteriorated dramatically, at least two disastrous laws have been passed (the one signed on 27 July and the Law on Personal Data Protection) while others are in the pipeline.

There is no point in deluding ourselves. The present regime cares about the interests of democratic Ukraine solely at the level of words. It’s time we began noticing and commenting on deception and informing as many people as possible, both in Ukraine and abroad, about a staggeringly deep chasm between words and actions before it’s too late.

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