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Coalition bypasses Venice Commission and passes Law on Judiciary

Halya Coynash

Despite serious doubts expressed not only in Ukraine, but from the Council of Europe’s Co-Rapporteurs on Ukraine and Venice Commission, the Verkhovna Rada on Thursday, 8 July 2010, passed by 260 votes the Law “On the Judicial System and Status of Judges.  The document was passed without making changes to the Verkhovna Rada Regulations, restricting the right of parliament to appoint judges.

As reported on 5 July, the Venice Commission had agreed to consider the Law submitted by President Yanukovych in accelerated regime, and the Vice President of the Commission, Thomas Markert had already indicated that there were significant doubts. He said that the system of judge self-government seemed too complicated, the influence of the Verkhovna Rada too great, and added that the reduced role of the Supreme Court wa a “problem area”

The law envisages the creation of two extra high courts - the High Civil Court and High Criminal Court - and reduces the number of Supreme Court judges.

The main area of concern for many is the sharply increased authority of the High Council of Justice which is responsible for nominating and dismissing judges.
This concern has been highlighted since the appointment by the President of Valery Khoroshkovsky, Head of the Security Service, media owner and a person without the legally required legal background as member of this High Council of Justice. 

Accusations of conflict of interest have already been strongly registered by TV Channel TVi, which together with another of the three channels still giving more or less independent news coverage, lost a court case brought by Khoroshkovsy’s Inter Media Group on 8 June.

Cause for concern was reiterated in the report of the Co-Rapporteurs on Ukraine to the Council of Europe

In its report entitled Threats inherent in proposal judicial reform could outweigh achievements the Centre for Political – Legal Reform found some positive things to say about the law, but a very significant number of minuses.

“the new draft law endangers the independence of judges in is wide scope for the use of protection for some judges and reprisals against others”

“The scope of powers of the High Qualifying Commission of Judges arouses doubts as to its ability to achieve these efficiently even if it functions on a permanent, non-voluntary, basis. ….. according to the new draft, the members of the High Qualifying Commission will themselves carry out the check (including with the help of disciplinary inspectors), present accusations and punish judges. This could mean that the High Qualifying Commission of Judges will be overloaded, and that the disciplinary procedure will not be adversarial. This makes it possible to assume that the High Qualifying Commission given certain manipulation with selection of its members could be used to select “needed” judges and reprisals over “inconvenient” judges”

Peter Byrne at Kyiv Post notes that addressing the Strategic Partnership Commission in Kyiv on July 2, U.S. Secretary of State Hilary Clinton said she was encouraged by the Ukrainian government’s commitment to reaching European standards and eagerness to work with the Venice Commission on judicial reform.

The undue haste in passing a law which has aroused serious concern at such high level, which introduces major changes (not at present envisaged in the Constitution), to the status of the Supreme Court and the High Court of Justice, and which is presently awaiting a full assessment by the Venice Commission must be a cause for concern. They also raise questions of an increasingly rhetorical nature regarding the new regime’s commitment to democratic standards regarding a free and independent judiciary.

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