These innovations made large cuts in the authority of the Supreme Court of Ukraine (SCU) and rendered the judiciary effectively dependent on the executive branch. However, the Party of Regions has decided to restore some of the powers to the SCU and even sponsored a bill to this effect. The government is now trying to introduce mechanisms it intends to use to install a loyal person at the top of the judiciary when the current chief justice of the SCU steps down in September 2011 as his term expires, experts say. In these conditions, it will not do Bankova Street any harm to slightly expand the SCU’s powers. Moreover, forced to revise a number of aspects of the judicial reform following criticism from the Venice Commission, Viktor Yanukovych & Co. will turn these efforts into another attempt to convince the international community that they are upholding democratic principles.
Battlefor the top
Most experts say that the main cause behind curtailing the SCU’s authority is Chief Justice Vasyl Onopenko. Before being appointed chief justice, Onopenko headed the Ukrainian Social Democratic Party which is a member of the Yulia Tymoshenko Bloc.
In any case, this was not enough for the Party of Regions, and they tried to oust Mr. Onopenko as “an enemy within.” MPs and political experts say that the real candidates for this office will emerge from the government team, such as Party of Regions MP Serhii Kivalov. Deputy Chief of the Presidential Administration Andrii Portnov is also said to be hoping to put his man in this strategic seat.
Rumors of Mr. Onopenko’s imminent resignation began circulating last summer, but the plan was not set in motion until late December. The Prosecutor General’s Office opened a criminal case against Onopenko's son-in-law Yevhen Korniichuk, and the Pechersk District Court issued a warrant for his arrest. In early February, proceedings were opened against Mr. Onopenko’s daughter Iryna as well, on charges of fraud; she had allegedly failed to pay off a 300,000-dollar bank loan. The chief justice called both investigations an attempt to force his resignation.
After meeting with the president in February, he seemed to have struck a deal: the case against his daughter was closed and his son-in-law was released on his own recognizance. Mr. Onopenko himself suddenly made a roundabout turn: after persistent and damaging criticism of the judicial reform, he suddenly said he supported the changes.
Eventually the issue of resignation resurfaced. An attempt was made to kick him out of office with the help of the plenum of SCU justices, but it failed. Needing at least 25 positive votes, the proposal received only 17 of 49. Now the government must wait for Mr. Onopenko’s term to expire in September.
Meanwhile, there is no 100-percent guarantee that his successor will be loyal to the Party of Regions. Under current legislation, the chief justice can only be elected from the pool of current SCU justices. The resignation vote showed that the Party of Regions is not in full control of this institution. The VR Committee for Justice says that the Supreme Court justices may opt to re-elect their chief for a second term. Thus, the Party of Regions will attempt to modify the law to thwart such an outcome.
Playing with judicial powers
The bluff intended to persuade the international community that conditions for an independent judiciary were being set in place kicked off on 11 March when the Constitutional Court delivered its decision on a petition from 53 BYuT MPs who challenged parts of the Law “On the Higher Council of Justice” as unconstitutional. These norms rendered the judiciary dependent on the Supreme Council of Justice, but the Constitutional Court ruling reflected the court’s long tradition of Seeing Eye to eye with the government.
This decision stripped the Supreme Council of Justice of the right to demand and obtain copies of cases that are still on trial from judges. This norm, which has been in effect since May 2010, was introduced by MP Valeriy Pysarenko who is said to be close to Andrii Portnov, the mastermind behind the 2010 judicial reform. The Constitutional Court ruled that it interfered with the administration of justice.
However, the Supreme Council of Justice was allowed to keep all the other powers that were challenged by the MPs. The Constitutional Court upheld the regulation that acts ruled by the Supreme Council of Justice can only be appealed by the Supreme Administrative Court. Another norm left intact gives the Supreme Council of Justice the right to decide whether judges are guilty of violating their oath of office if, among other things, they depart from moral and ethical rules of conduct. This norm came under scathing criticism from the Venice Commission which said that vague criteria of this kind would lead using the law as a “political weapon against judges.”
The Party of Regions seems to be promising to restore part of the SCU’s authority. In January 2011, the Verkhovna Rada registered bill No. 7447 “On Amending Certain Legislative Acts of Ukraine Concerning the Operation of the Supreme Court of Ukraine” sponsored by Party of Regions MP Dmytro Prytyka. It was quickly adopted in the first reading by 238 votes. The bill restores the SCU chambers and permits revision of cassation court decisions not only in cases when substantive law is misapplied but also when certain procedural norms are violated. The Plenum of the Supreme Court will also have the authority to publish summaries of judicial practice and non-binding interpretations of law based on the revision of cassation court rulings.
However, the bill cuts the number of SCU justices from 49 to as few as 20. Competitive selection will be carried out by “an independent body which will consist of judges elected by judges and will meet European standards— the Higher Judicial Qualifications Commission of Ukraine.” It appears that the government plans to employ this mechanism to retain only those SCU justices who are loyal to the party and to get rid of the rest.
“This bill proposes forcing the rotation of justices in the SCU. It cannot be called progressive from the standpoint of an independent judiciary. Restoring the Supreme Court’s powers is the position of the Venice Commission. That is why anti-judiciary forces are sponsoring bills that seem to aimed at restoring some of these powers, while in fact they disguise the idea of changing the composition of the Supreme Court,” explains MP Sviatoslav Oliinyk.
The bill does not sit well with everyone in the Verkhovna Rada, including some majority MPs. Parliamentary sources say that the Communist Party will not support the bill in the second reading, because it does not want the judiciary to be fully dependent on the executive branch and hence the Party of Regions, which will be its rival in the looming parliamentary election. However, the Party of Regions is finding an increasing number of allies in other political forces and will be able to find the required 226 votes even without the Communists.