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21 October, 2013  ▪  Oleksandr Mykhelson

Usurpation in the Name of Europe

Under the cover of European integration, the government has pushed lobbied initiatives through parliament

Last week, the Ukrainian government succeeded in steamrollering through parliament another pseudo-integration bill. It requires amending the Constitution and, if passed, will fundamentally change the rules of the game for the judiciary. The document with the appealing title “On Strengthening the Guarantees of the Independence of Judges” is, in fact, an attempt to “strengthen authoritarian dictatorship”. A report by the Razumkov Centre says that the bill, which was made public on 9 October, “clearly reflects a trend characteristic of Ukrainian law-making in the recent past, namely exploiting European standards to perpetuate and reinforce a non-democratic form of governance… European standards are being essentially adapted to fit Ukrainian realities.” The sponsors of the bill are trying to exploit the “blessing” from the Venice Commission, which indeed gave its general approval, but this is due to insufficient or incorrect understanding of the situation in Ukraine.

READ ALSO: Venice Commission recommends correcting five flaws in the draft law on the prosecution

The core of the proposed changes is as follows. Today, the President of Ukraine forms, reorganizes and disbands courts. He also appoints first-time judges for a five-year term. After that term expires, every judge is appointed to office indefinitely by the Verkhovna Rada unless he is voted down. If the bill in question is made into law, parliament, rather than the president, will form, reorganize and disband courts by passing a law in each individual case. However, MPs will no longer appoint judges – this power will be transferred to the president. As a “gift” to the judiciary, the bill raises, for judges, the minimum retirement age, qualifying age and duration of legal practice needed for appointment. The already appointed judges will keep their offices and those who have passed qualification exams will be automatically promoted. The other parts of the bill are concerned largely with monitoring judges’ performance. The president will also have an exclusive right to fire or transfer them between courts. Appointments will be made on mandatory submissions from the Higher Council of Justice (HCJ), while dismissals or transfers on that of the Higher Qualification Commission of Judges (HQCJ). Transfers to higher offices are promised to be competition-based, but it is unclear what it will all look like. Most importantly, who will influence whom between the president and the HCJ?

The proposed new principles of forming the HCJ are a nod to Europe. Europe has recommended that at least half of the HCJ members should be judges. Fittingly, the bill reserves 12 out of 20 the council’s seats for candidates approved by a congress of judges, which will also approve a “majority” of HQCJ members. Moreover, the Prosecutor General, who remains a member of the HCJ ex officio, must not vote on issues pertaining to the responsibility of judges. To Europe, these points to a desire to separate the Prosecutor’s Office from the judiciary, but in Ukraine the former influences the latter in other ways than voting, even that by the Prosecutor General.

READ ASLO: No Respect For Judges Without Self-respect 

The bill also permits the HCJ to operate with merely two-thirds of its official membership present. Thus, with deft manoeuvring, the most powerful player, the Presidential Administration, could leave at least half of the judges on the HCJ out of the game. Europe indeed welcomes the idea of removing any channels for parliament to influence the judiciary. This is not surprising, because from the European viewpoint, parliament is a purely political institution, while politics should not interfere with administration of justice.

Paradoxically, pro-European politicians and experts in Ukraine are forced to reiterate the dictum which their opponents like to use — it is inefficient to blindly and mechanically transfer European practices to Ukrainian realities. But there is more to this situation – it is not merely an attempt by the Ukrainian authorities to make good on their promises to the EU. Tellingly, the reforms of the Prosecutor’s Office and the Interior Ministry, promised to Europe a long time ago, are only slowly moving up the pipeline, while the bill in question was circulated back when it was a joke to speak of Viktor Yanukovych as the engine of European integration in Ukraine.

Having the power to appoint and dismiss judges is an important option, both politically and economically. Normally, (non-)appointment of a judge by parliament depends, above all, on the Verkhovna Rada Committee on Justice, which has been permanently chaired by Party of Regions member Serhiy Kivalov. This, of course, is a “gold mine”. (Naturally, we refer here only to the authority and clout that this venerable MP has.) At the same time, this is a headache for the Presidential Administration which volens nolens has to make deals with the parliamentary committee regarding potential judges. Incidentally, making deals with the Verkhovna Rada about a new Prosecutors General is no picnic, either. This office does not come up for grabs as often, but the stakes are higher. The new bill frees officials in the Presidential Administration from both problems. It removes the five-year limit on the mandate held by the Prosecutor General. The current norm at least hints at regular rotation — theoretically, the Prosecutor General must be re-appointed every five years through a procedure involving both the president and the Verkhovna Rada. Now this norm has been scrapped altogether. The president appoints, parliament approves, and the Prosecutor General can fulfil the will of the president until fired, again by the president. True, the Verkhovna Rada will also be able to dismiss him from office by a majority vote, but the head of state is likely to make up his mind faster if necessary.

READ ALSO: Judicial Takeover 

The bill was passed by parliament in a vote on 10 October, but amending the Constitution requires another one with at least 300 MPs committing. In other words, it now depends on the opposition whether the bill makes it through parliament.

 

IN PURSUIT OF EUROPEAN STANDARDS

The bill in question was sponsored by the government and appears to be just one move in its long-term strategy of passing lobbied decisions under the appealing disguise of “adaptation to European requirements and standards”. This process was launched a long time ago and can be expected to intensify if the Association Agreement is initiated and starts being implemented. The government minds that come up with these legal novelties seem to be following a well-known Ukrainian folk saying which says that you can turn the law whichever way you please. For example, one prominent initiative of this kind was the new redaction of the Law “On the Election of People’s Deputies of Ukraine” adopted on 17 November 2011. It introduced a mixed election system, removed the “against all” option for voters and barred blocs from participation. The pro-government working group which drafted the law launched an aggressive information campaign regarding approval from the Venice Commission. Eventually, only a handful of the commission’s recommendations were incorporated, but the Party of Regions declared at every corner that the law had passed expert evaluation in the Venice Commission and was found to conform to the European standards. In the 2012 parliamentary elections, it became an important tool for rigging election results and large-scale abuse in the way commissions were formed at various levels and votes were counted.

READ ALSO: Winning the Race at the Start 

Another salient example is the new Criminal Procedure Code (CPC) passed by the Verkhovna Rada on 13 April 2012. The justification offered was that Ukraine had commitments to conform to the recommendations and resolutions of the Council of Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the rulings of the European Court of Human Rights. However, the CPC actually incorporated a number of novelties that can be utilized in persecuting the opposition. For example, the code formalizes wiretapping and covert break-ins into apartments and houses.

On 3 July 2012, the Verkhovna Rada passed the scandalous Law “On the Foundations of the State Policy on Languages” which led to another onslaught on the Ukrainian language and opened more ways to forcefully Russify Ukrainians. This has been done in the form of voluntary-forceful shutting of Ukrainian-language classes in a number of regions, such as Odesa, and the introduction of Russian as the “second foreign language” studied in schools. Ukrainian-speaking citizens have become victims of linguistic discrimination in official and government institutions in many regions; mechanisms for protecting Ukrainian in the press, the services sector, etc. have been blocked. The sponsors of the law found a nice cover for their evil intentions, claiming that Ukrainian laws had to be made to conform to the European Charter for Regional or Minority Languages.

READ ALSO: Russification Redux?

On 20 November 2012, the Verkhovna Rada passed the Law“On the Single State Demographic Register and Documents Establishing Ukrainian Citizenship, Identity of a Person or His/Her Special Status”. This is one of the most “expensive” laws lobbied by YeDAPS, a company specializing in printing forms for documents. For example, under the law, “electronic” biometrical IDs are to be produced and a number of currently valid “paper” documents are to be replaced, in many cases without any real need. An explanatory note justifies this multibillion law (in terms of revenues generated for YeDAPS) as follows: “One of the key points of the Association Agreement between the EU and Ukraine is protection of personal data of physical persons and introduction of modern security levels for all identification documents issued by Ukraine.”


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