Supreme Court brought to heel
The election took place on 23 December 2011, almost three months late, of a new Head of Ukraine’s Supreme Court. Petro Pylypchuk, former Head of the Council of Judges, was elected, some suggest, as a compromise – and temporary – measure. It had become clear recently that Vasyl Onopenko, the former Head, had not put forward his candidacy.
The events of the last weeks appeared to confirm that all efforts were underway to ensure the removal of Vasyl Onopenko from the post of Head of the Supreme Court, Mr Onopenko’s tenure had expired in September, but up till then he had been expected to stand for re-election with a very strong likelihood of receiving majority support from his fellow judges. He was widely known to be unacceptable to the President’s Administration. This was commented upon in the Parliamentary Assembly of the Council of Europe’s October 2010 report in connection with concern, shared by the Venice Commission, over drastically reduced powers for the Supreme Court. The PACE report 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”
Although the Supreme Court’s role remains reduced, some powers have since been reinstated. Throughout 2011 there were a number of events and developments which many commentators interpreted as aimed at ousting Onopenko. No attempts have been made to publicly refute allegations, although they are of the most serious nature.
Yevhen Korniychuk, former Deputy Justice Minister in Yulia Tymoshenko’s government and Vasyl Onopenko’s son-in-law was arrested on 22 December 2010 on the day that his wife gave birth to their third child. The arrest was condemned by a number of lawyers within Ukraine, and Korniychuk’s case was one of four identified as of particular concern in the Danish Helsinki Committee’s Second Legal Monitoring Report.
Mr Korniychuk was released in February on a signed undertaking not to leave Kyiv. The release came after a meeting between the President and Vasyl Onopenko, then Head of the Supreme Court and Korniychuk’s father-in-law. At the same time, a rather strange criminal investigation initiated against Onopenko’s elder daughter, which was deemed by the investigators to require a search of Onopenko’s home, was terminated.
On 30 November this year the Prosecutor General’s Office reduced the charges against Yevhen Korniychuk. Then on 9 December the Pechersky District Court in Kyiv amnestied him. The same court which in late December 2010 had first refused to remand Korniychuk in custody, but then “changed its mind” and remanded him for two months, now found that his three underage children and lack of any criminal record, as well, obviously, as the change in the criminal charges, allowed it to apply the amnesty. The court also rejected the application to demand compensation for losses to the State supposedly inflicted by Korniychuk.
The 9 December court ruling came a day after the District Administrative Court in Kyiv revoked its own ban imposed in September on holding the election for new Head of the Supreme Court. It also coincided with public statements from Vasyl Onopenko indicating that he would probably not stand for office.
The three other politicians whose cases were analyzed by the Danish Helsinki Committee: Yulia Tymoshenko, Yury Lutsenko and Valery Ivashchenko have received quite different treatment from the same Pechersky District Court, and are all still in custody. Yulia Tymoshenko’s 7-year prison sentence, issued by Judge Kireyev of the same Pechersky District Court, ban on holding public office and 1.5 billion UAH fine, was upheld by the Court of Appeal on 23 December and has now come into effect.
Other means of persuasion
As mentioned, the District Administrative Court in Kyiv back in September this year placed a ban on holding the election for a new Head of the Supreme Court. This was supposedly on the application of a potential candidate. A law passed by parliament on 20 October opened the way for this candidate – Ihor Samsin, Head of the High Qualification Commission of Judges - to take part in the election. Political analysts suggest that Samsin was the candidate favoured by the President’s Administration. There was, however, rebellion among the judges’ corps of the Supreme Court. According to Serhiy Vysotsky, the President’s Administration then tried to push for the election of the Head of the Constitutional Court, . Anatoly Holovin. This also aroused the judges’ resistance. Petro Pylypchuk is widely admired by his colleagues who seemingly had no problem voting for him. He is not, however, seen as a strict administrator, and Vysotsky suggests that there are fears with the Supreme Court that the first Deputy Head, Romanyuk, supported by the President’s Administration, may have considerable power.
In fact, however, the election of Petro Pylypchuk, can only be a temporary measure since he cannot serve beyond October next year when he reaches 65. It remains to be seen whether the Supreme Court’s judges will continue to demonstrate independence.
The means of persuasion applied over recent months, most notoriously, public statements by the Prosecutor General of possible criminal charges against a number of Supreme Court judges, have shown the types of pressure they may be under. And, most worrying, the no-holds-barred approach used by those whose main aim is a malleable judiciary.