A plenum this week is set to bring the prodigal son of Ukraine’s judiciary – the Supreme Court - back into the fold. That would certainly seem the intention of a law hurriedly passed by the ruling majority in Ukraine’s parliament on 20 October. The methods used and superficial link with a Venice Commission Opinion published just days before are becoming all too familiar in today’s Ukraine.
There are no heroes in this story, no battle between defenders and enemies of an independent judiciary. However up till now the Supreme Court has remained firmly out of the sphere of influence of the present regime, unlike the High Council of Justice, Specialized High Courts and others.
Concern was therefore inevitable when the judicial reforms passed without awaiting the Venice Commission assessment in July 2010 seriously increased the powers of the High Council of Justice and reduced those of the Supreme Court. In October the Parliamentary Assembly of the Council of Europe stated that “these new provisions are controversial and have led to allegations that they were inspired by political power games and revenge, as the chairperson of the Supreme Court is widely considered to be close to former Prime Minister, Yulia Timoshenko”. The Venice Commission’s assessment was equally damning.
The government promised amendments in response to the Venice Commission’s criticism of the reduction of the Supreme Court’s powers. Draft Amendments to the Law on the Judicial System and Status of Judges were sent to the Venice Commission this summer and the Commission’s Opinion was made public in the first half of October this year.
On the subject of the Supreme Court, the Commission is basically positive. While expressing some ongoing concerns, it notes with approval that ”the new draft appears to have at least partially reversed the earlier decision to effectively deprive the Supreme Court of much of its jurisdiction and would appear to restore it to its position as the highest judicial body in the system of courts”.
A temporary aberration pointed out by the European specialists and rectified by Ukraine’s legislators? It sounds wonderful, but last week’s blitzkrieg law, on the heels of some previous events, makes it difficult to suspend disbelief.
All the events are one way or another connected with the Head of the Supreme Court, Vasyl Onopenko, whose term in office expired on 29 September this year. Vasyl Onopenko was one of the most vocal critics of last year’s judicial reforms, focusing mainly but not solely on the sharp reduction in Supreme Court powers.
In early 2011 a criminal investigation on rather strange grounds was initiated against one of his daughters, with Onopenko’s own home being searched. Meanwhile the husband of his other daughter, Yevhen Korniychuk, former Deputy Justice Minister in Yulia Tymoshenko’s government was arrested and taken into custody on the day that his wife gave birth to their third child.
It is worth noting that Korniychuk’s case is one of four analyzed and perceived as of concern in the Danish Helsinki Committee’s Second Legal Monitoring Report., together with the prosecutions of Yulia Tymoshenko, Yury Lutsenko and former Acting Defence Minister, Valery Ivashchenko. The other three remain imprisoned however Korniychuk was released on a signed undertaking in February. The criminal investigation against Iryna Onopenko was also terminated shortly after a meeting between the Head of the Supreme Court and President Yanukovych.
By this stage any confidence in an independent judicial branch of power is dwindling rapidly. However one event does stand out. A large majority of Supreme Court judges rejected a vote of no confidence in Vasyl Onopenko in March 2011.
Vasyl Onopenko was considered by many analysts to have a good chance of being re-elected for another term in office in September this year.
The election did not take place on schedule due to a court ban, apparently in response to a suit lodged by another prospective candidate. This scenario is, incidentally, remarkably similar to that which prevented the democratically elected Rector of Donetsk National University, who had the support of colleagues but not the Minister of Education, from taking up office at the end of last year.
Law №9151 from 20 October makes it possible for the candidate who has filed the law suit, Ihor Samsin, to stand for office, and through an increase in the number of judges, considerably weakens Onopenko’s chances of re-election. Some of the changes which were not in the draft Law presented to the Venice Commission, including the introduction of five Deputy Heads of the Court, mean that even if Onopenko is re-elected, his actual influence will be reduced.
Moreover, Roman Kuybida, Deputy Head of the Centre for Political and Legal Reform, points out that the new Law has not in fact reinstated the powers of the Supreme Court removed in July 2010.
The Verkhovna Rada passed another pearl on Thursday evening, allowing judges to decide which court rulings are to be inserted in the “Single Register of Court Rulings” – and which are to be modestly concealed from the Ukrainian public.
Such discretionary powers remove any chance of public scrutiny of the judiciary. Orchestrated elections and other efforts to ensure that the highest judicial body in the country is subordinate to those in power make any hopes for the development of rule of law in Ukraine equally illusory.