Venice Commission’s recommendations for judges’ independence rejected

The Venice Commission in its Opinion on the Draft Law on Amendments to the Law on the Judiciary and the Status of Judges states that judges who are still working their first five years, before indefinite tenure, “cannot be appointed to deal with major cases with strong political implications.” .

Members of the opposition believe that this is directly linked with the trial of former Prime Minister Yulia Tymoshenko. The ruling Party of the Regions denies this and does not plan to act on the Venice Commission’s recommendation.

The Venice Commission’s Opinion highlights the dangers to judge independence and sees a major problem in the fact that there are two categories of judges – those in their first five years, and those with indefinite tenure. ““During this first temporary appointment, judges have less room for independence from the political power, both executive and legislative. It should be ensured that judges in these temporary positions cannot be appointed to deal with major cases with strong political implications.” (para. 49). 

Kommersant-Ukraine reports that the Venice Commission’s Press Service focused attention on this point, adding a comment which did not get into the official Opinion. “The judge who is trying the former Prime Minister was in fact still temporary”.

The President’s Adviser and head of the Central Department on Constitutional-Legal Modernization, Marina Stavnyjchuk, told Kommersant:

“Perhaps the experts wanted to draw attention to the fact that judges appointed by the President, during their first years of practice, find it difficult to run such complex (“not simple”) cases. I’ve heard political interpretations of that recommendation and therefore want to say that the political situation in Ukraine was not discussed at all during the Commission’s meeting.

Ms Stavnyjchuk said that she doubted that the Commission’s recommendation would be taken into consideration. She said that in Ukraine there is a system of automatic distribution of cases between judges and therefore no criteria for determining the complexity of a case. “Furthermore, the Constitution and laws do not restrict judges’ powers on the basis of their experience of work as judges”.

Serhiy Sobolyev, deputy head of the BYUT-Batkivshchyna Party, on the contrary, is convinced that the Commission’s recommendations are directly linked with the trial of Yulia Tymoshenko. “In the Venice Commission they were shocked to learn that judges without experience were examining the question of liability of the Prime Minister and government”, he says. The judge in Tymoshenko’s case, Rodion Kireyev, was only appointed judge in 2009.

The head of the Parliamentary Commission on Justice Matters, Serhiy Kivalov confirmed the prediction that the Venice Commission’s recommendations would not be acted on. Kivalov used the same arguments – about automatic distribution of cases, all judges having equal procedural rights and also said that at the Venice Commission’s meeting, neither Tymoshenko nor Kireyev were mentioned.