Creating a trustworthy judiciary
Rally demanding lustration of judges, March 27
Revolutions most often fail because only the faces in power change. This was the fate of the 2004 Orange Revolution, and a pressing imperative now is to ensure that the same thing does not happen again. The demands from the popular Maidan movement are for total lustration – a cleansing of all ranks of power. The first problem is, of course, the faces. Almost all now in power have been around for a long time, and they are unlikely to support measures which could touch them. There are numerous other issues – regarding criteria for lustration; the consequences; who makes the decisions; and major dangers inherent in such procedure – which will be addressed separately. The following concerns one specific law which may shortly be passed on lustration of judges.
It is appropriate that initial steps should address the judiciary which Viktor Yanukovych set about subordinating within months of being elected president in 2010. The politically motivated trials of Yulia Tymoshenko, Yury Lutsenko and others were only the most visible aspects of a much deeper malaise. Major legislative and staffing changes, the increased role of the High Council of Justice [HCJ] and of the prosecutor’s office resulted in most judges passing the rulings expected of them, as well as cases where judges lost their jobs for demonstrating independence.
During the three months of the EuroMaidan protests, a number of judges banned peaceful protests; remanded people in custody for 2 months and more without any legitimate grounds. It is worth noting that the High Council of Justice obtained the dismissal of the sole judge – Iryna Mamontova - who applied house arrest, rather than remand in custody with respect to young students against whom there was no evidence at all.
A revised “Law on reinstating trust in Ukraine’s judiciary”  was passed in its first reading on March 27. Attempts to get it passed in full failed. The draft law proposes to create a special commission which will have one year to carry out checks of general jurisdiction court judges in response to applications from individuals or legal entities. The checks will concern cases where a judge either alone, or as part of a panel of judges, passed rulings which:
1) Restricted the right to peaceful assembly from Nov 21 2013 till the draft law comes into force;
2) Remanded people in custody, upheld such orders or prolonged periods of detention; convicted or upheld convictions in cases where people have been declared political prisoners for actions linked with their political or civic activities;
3) Remanded people in custody, upheld such orders or prolonged periods of detention; convicted people who were participants in the protests from Nov 21 2013 to the day that the law comes into force;
(4) to (7) refer to punitive measures against protesters, including those taking part in the AutoMaidan car processions and other actions, using the Code of Administrative Offences. Such rulings handed down by first instance or appeal court rulings stripped drivers of their licence; imposed administrative penalties for supposedly disobeying the legitimate demands of a police officer or similar; or for infringing the procedure for holding meetings, rallies etc.
The final items include checks of court rulings which stripped five MPs elected at the Oct 2012 parliamentary elections of their parliamentary mandate; of court orders allowing phone tapping and other forms of surveillance against participants in the protests from Nov 21 2013 to Feb 21 2014.
The last (10) refers to violations found by the European Court of Human Rights, including of Articles 14 and 18 of the European Convention on Human Rights, where these involved actions or inaction of a judge which may indicate infringement of their oath.” With respect to the detention of both Lutsenko and Tymoshenko, the Court in Strasbourg found violation of Article 18, with the authorities found to have had motives other than those stated, or inadmissible, for their detention.
The special commission will contain 15 members – five selected by the Supreme Court; five by the Government Representative on Anti-Corruption Issues and five by the Verkhovna Rada. Only the Supreme Court’s five need to be retired judges; the other 10 members must simply have a higher legal education.
The special commission is attached to the High Council of Justice, and it has power only to report its findings regarding infringement (or not) of a judge’s oath to the HCJ. The latter then has three months to make a decision. Where there are indications that a criminal offence has been committed, the commission applies to the Prosecutor General’s Office for a check to be carried out.
The most crucial innovations come in the Final and Transitional Provisions. With the entry into force of the law:
1) All heads, their deputies and the secretaries of the court chambers of high specialized courts and of courts of appeal are dismissed from their administrative posts, as well as the heads of local courts and their deputies;
2) The powers of all members of the High Council of Justice and the High Qualification Commission of Judges are terminated. New members are appointed in accordance with current legislation.
It was the heads of the courts who played the key role in carrying out political orders and intimidating other judges into following suit. The draft law stresses that such dismissals pertain only to the judge’s administrative duties. Both Ukraine’s Constitution and legislation make it difficult to dismiss a judge and this point must not be ignored.
There are also restrictions on who can now become a member of the HCJ or Qualification Commission. A crucial point is that those on either body before the law came into force may not be members of it, unless they are members ex officio.
The HCJ under Yanukovych was given much greater power than that envisaged by the Constitution, and the power was used to intimidate and / or get rid of judges who did not provide the rulings expected of them. The need for new members seems undoubted, although unfortunately the new provisions for selecting members still fail to meet European standards.
The Centre for Political and Legal Reform which is participating in drawing up apoints to some areas which need addressing. Most damningly that in its present form, the law could result in judges applying to the European Court of Human Rights and winning the right to reinstatement as did Alexander Volkov, a Supreme Court judge dismissed in 2010.
The reasons are simple: European standards demand that most members of the HCJ should be judges chosen by other judges; the law does not establish a time bar for dismissing a judge for infringement of their oath; and appeals will be considered by a chamber of the High Administrative Court whose judges are also liable to checks under the law.
The Centre also points out that the special commission could be declared unconstitutional since five of its members will be formed by parliament which is not given this power under the Constitution.
These are not trivial considerations if they can result in the measures being found in breach of the European Convention. They are also of major importance and could defeat the purpose of any “lustration”, if the role of parliament leads to political influence on the makeup of both the commission and the HCJ.
Ukraine’s justice system was seriously eroded over the last four years, and it does seem inconceivable that the same people who just months ago were prepared to remand people in custody or gravely restrict their rights to order can be left to exercise justice further. On the other hand, “restoration” of trust may be too optimistic, given that many courts and individual judges provided the rulings required of them, or were guilty of corruption earlier too. Some of those currently holding political power were involved in politically commissioned court rulings under the presidency of Viktor Yushchenko. The “court ruling” from the Kyiv Court of Appeal in January 2010 which found Joseph Stalin and others guilty of Holodomor-Genocide in 1932-1933 was much less disastrous for individual lives, but it was no less politically commissioned than the politically motivated trials of Yanukovych’s opponents. The court in 2010 worked in close coordination with the Security Service, then and now under the leadership of Valentin Nalyvaichenko.
There are cogent reasons for removing any political influence on the judiciary and that is not achieved by draft law No. 4378-1.
The danger of disciplinary measures for “infringement of oath” has previously been criticized as giving scope for abuse by the Venice Commission, and was widely abused under Yanukovych. Even the criteria listed above for initiating an investigation could come under scrutiny, either in Ukraine or by the European Court of Human Rights. The “political prisoners” mentioned above were classified as such by a parliamentary majority, not the courts. The same quibble could be made about participants in the protests detained or even convicted of offences. The decision to waive all charges was effectively a political one, not made by the courts.
The process has to begin somewhere and it needs to start soon. It must however avoid any possible minefields, and looking consistently to the court in Strasbourg may be the way forward. It is clearly only a very small part of a much greater list of vital reforms to make it inconceivable that the degradation of the last four years could be repeated.