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24 October, 2011  ▪  Alina Pastukhova

Court Raiders

Unable to replace the Chief Justice of Ukraine directly, the government is now seeking alternative methods

Thetermofthe Chief Judge of Ukraine,VasylOnopenko, thelastnon-Party of Regionspersonleftamongthoseinpower, appointedin2006, expired on 29 September. Now, a team led by Mr. Yanukovych has the chance to put someone loyal to them into the seat. They have already prepared their list of variants.

Still, the Party of Regions will have a hard time taking over this body as Mr. Onopenko has decided to apply for a second term. According to The Ukrainian Week’s sources at the Supreme Court, he enjoys the support of most Supreme Court justices and can expect a positive outcome.

This clearly is not what the Presidential Administration hopes for. According to information obtained by The Ukrainian Week, the Party of Regions is working on a new strategy to take over the Supreme Court. Members of the Parliamentary Justice Committee claim the government is blackmailing the judges by promising them a return of the powers the Supreme Court had before the judiciary reform, if they support a candidate loyal to those in power. Yet, this pressure on the justices might only improve Mr. Onopenko’s chances, says Yuriy Karmazin, Deputy Chair of the Committee.

A SEAT FOR A HOMEBOY

The opposition-oriented Chief Justice (Vasyl Onopenko is claimed to be close to BYT, the block of oppositionist Yulia Tymoshenko, as he had represented this bloc in parliament before his appointment to the Supreme Court) has long been a thorn in the side of the President. It was largely because of Mr. Onopenko that the judiciary reform cut the Supreme Court’s powers. And an attempt was made to get rid of the Chief Justice before his term in office expired. In March, 19 Supreme Court justices put a motion of no-confidence forward against Mr. Onopenko on the premise that he arguably politicized the authority. But the attempt to remove the Chief Justice failed as only 17 out of 46 Supreme Court members supported the motion.  

At the end of September, the obstacles the government faced in lobbying its loyal candidate to replace Mr. Onopenko became obvious. The Kyiv District Administrative Court banned the Supreme Court from holding the plenum planned for 30 September where the new chief judge would be elected. The decision was based on the appeal filed by Mykola Pinchuk, one of the Supreme Court justices, to recognize the inactivity of the Supreme Court. Mr. Pinchuk accused the latter of having failed to notify him of its plans to hold the plenum on 30 September. Also, Mr. Pinchuk wants the court to deem the ban put on him in taking part in the motion of no-confidence against Mr. Onopenko illegitimate. Along with his colleague Ihor Samsin, Chairman of the High Qualification Committee, Mr. Pinchuk, also member of the Committee, was barred from participating in Supreme Court plenums.

MPs that are members of the Parliamentary Judiciary Committee and are not in the Party of Regions claim the district court’s ruling is politically motivated because of the obstacles the government is facing in appointing its loyal candidate as Chief Justice. “How can you ban a plenum which is mandatory by law?” clamors Yuriy Karmazin, BYT member. “How can any court ban the convention of a collegial authority? If that’s their logic, someone can ban sessions of the parliament or the Cabinet of Ministers!” Mr. Karmazin, supported by his colleagues, believes the government is using this scheme to cover up its interests.

“The High Qualification Committee for Judges initiated the appeal and the ruling. This authority was established after the judiciary reform,” says Sviatoslav Oliynyk, an independent MP and member of the Parliamentary Judiciary Committee. “Clearly, the High Qualification Committee is oriented toward the current government and the Presidential Administration. They could not have made this decision without having coordinated it with the Parliamentary Judiciary Committee first.”

The legislation requires the Supreme Court to choose its Chief Justice from the justices within it. Currently, one of Mr. Onopenko’s key opponents is Ihor Samsin, supposedly close to Andriy Portnov, the spin doctor behind the judiciary reform. Another candidate is Viktor Kryvenko, one-time Chair of the Administrative Trial Chamber at the Supreme Court. The talks of Mr. Kryvenko as a potential successor to Mr. Onopenko surfaced back in March. Another likely competitor will by judge Mykola Korotkevych, former Chairman of the Criminal Case Chamber at the Supreme Court.  

The District Administrative Court has banned holding the plenum until it reviews the case. However, the law requires the Supreme Court to convene the plenum within a month after the Chief Justice’s term in office expires. The government has until 30 October to campaign among the Supreme Court justices. They will then be forced to hold the plenum regardless of how successful the government’s campaign turns out to be.

It looks like the first convincing argument is already in place. Back in March, the parliament came up with a bill to streamline the operation of the Supreme Court of Ukraine, which offers a new procedure for removing Supreme Court justices from office. The bill essentially divides them into two categories. The first one includes 20 people being involved in the proceedings; the second is 29 people who will not. The latter have been barred from participating in reviews of cases. They can only analyze court practices and offer proposals on improving legislation. The High Qualification Committee is in charge of deciding how judges are divided into these categories. What’s more, it can do so even if a person in question is absent.

Currently, the bill is in its second reading in parliament. According to Mr. Karmazin, it could come up on the parliament’s agenda in the next few days.

In addition to the bill, which will be inconvenient for the judges, the government has yet another leverage it can use to exert pressure on the Supreme Court. Back in 2010, the Cabinet of Ministers came up with an idea to move the Supreme Court out of its office at Pylypa Orlyka Street and give it away to the High Specialized Court for Civil Cases, set up as a result of the judiciary reform. Both courts ended up in the High Administrative Court that deemed the government’s decision illegal this summer. The issue of moving the Supreme Court to a different office is still unresolved. The government can bring it up once again anytime to spoil life for the Supreme Court justices.

GIVING THE FLOOR TO KIVALOV

In addition to appointing a loyal judge as Chief Justice, those in power keep in mind another option that could be even worse for Supreme Court judges. The government could end up appointing a candidate suitable for the position but with no actual work experience within the Supreme Court.

To implement this scenario, they could use the law which allows Constitutional Court judges to be elected as chief judge of the Supreme Court. This scenario surfaced back in spring when the government tried to fire Mr. Onopenko. At that point, the government offered PR’s Serhiy Kivalov, now Chairman of the Parliamentary Judiciary Committee, and Andriy Portnov, a representative of the Presidential Administration, to replace Mr. Onopenko.

At the end of September, those in power finally got a chance to implement their plan. Pavlo Tkachuk, appointed earlier under the quota of the Verkhovna Rada as judge of the Constitutional Court, stepped down as his term in office expired. Now, the parliamentary majority can appoint a successor loyal to the government who will be another candidate for the seat of the Supreme Court’s chief judge.

Mr. Portnov is no longer being mentioned as one of the candidates today, while Mr. Kivalov remains one of the most likely contenders put forward by the government, although he denies any plans to head the Supreme Court.

According to the sources of The Ukrainian Week, the list of candidates to replace Mr. Onopenko features several Constitutional Court judges close to the Donetsk clan currently in power and the Deputy Prosecutor General, in addition to Mr. Kivalov.

Bill No9151 sponsored by PR’s Iryna Berezhna might also make it easier for the government to bring someone with no experience in the Supreme Court to the institution. The bill suggests that the current number of Supreme Court judges, i.e. 48 members, should be fixed in the law and this could be the loophole needed by the government.  

The Presidential Administration will decide who, out of the list of potential chief judges at the Supreme Court, will be the single candidate from the government closer to the set deadline for the plenum. But if all these efforts and complex maneuvers by the Party of Regions fail and the inconvenient Mr. Onopenko wins his seat back, the Supreme Court will likely have to get ready for new cuts to its authority. 


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