Last year, a new law on the judiciary substantially reduced the powers of the Supreme Court and high-profile prosecutions of opposition leaders have raised the specter of political persecution. As recently highlighted by Ukrainian lawmaker Hryhoriy Omelchenko, the trend in Ukraine has been to collapse the judiciary into the executive branch and to remove the judiciary’s power. This suppression of the Supreme Court of Ukraine fails to respect the separation of powers. A hobbled judiciary cannot protect citizens’ rights.
Adopted on June 28, 1996, Ukraine’s constitution emphasizes the rule of law. All persons are subject to a universally applicable law. In order to uphold this value, a strong and independent judiciary must exist in a system of separate and co-equal powers. To lead that judiciary, the constitution sets the Supreme Court of Ukraine as the highest judicial body for courts of general jurisdiction.
Since 1996, the Constitutional requirements for the judiciary were enacted into law in 2001, and became effective in 2002. The latest major change to the judiciary, the Law of Ukraine On the Judiciary and the Status of Judges (No.2453-VI) was adopted by Ukraine’s parliament, the Verkhovna Rada, on July 7, 2010, and signed into law by the president on July 27, 2010. Although comments on the draft of this new law were submitted by numerous national and international experts, including the Venice Commission and the United States Agency for International Development’s Rule of Law Project, most of these comments were not incorporated into the law that was passed.
The law includes a number of positive provisions that aid judicial independence, including improvements to the selection process of judges, inclusion of the State Judiciary Administration within the judiciary itself, improvements to court financing, provisions for training judges, and a reduction of the number of justices of the Supreme Court. On the other hand, many provisions of the new law are problematic.
For example, the president of Ukraine can create and abolish courts of general jurisdiction, based on the recommendation of the justice minister following a proposal from the chief judge of the relevant high specialized court.
The constitution does not, however, give the president the power to liquidate courts, and allowing the executive to do so would place too much power in one person’s hands.
Another key area of concern is the decreasing role of the Supreme Court. Under the constitution, it is the highest judicial body within the courts of general jurisdiction. Pursuant to the new law, however, the high specialized courts decide whether to submit a case for further review to the Supreme Court. Its power essentially vanishes under this new law. It can no longer choose the cases it hears.
Furthermore, under the new law, a vote of no-confidence in the chief justice can be taken by a lower-than-normal quorum of the plenary session of the Supreme Court.
Normally, at least two-thirds of the members of a plenary session are required, but the new law allows a vote of no-confidence in the chief justice with only a majority of the plenary session present. This type of vote is sufficiently serious to warrant at least the presence of the normal quorum.
The selection process for judges outlined in the new law is also too political, since it involves the High Council of Justice. This involvement politicizes the selection process, since a majority of the council’s members belong to or are appointed by the executive or legislature.
For instance, the president appointed to the council the head of the Security Service of Ukraine, a close ally of the President with no legal background. Although that official has now resigned from the council, appointment of political allies harms the selection of qualified, non-partisan candidates for judicial office. In addition, selection of the chief justice by the plenum of the Supreme Court has recently become political, since the chief justice and other officials are not selected individually but by list, which implies an association reminiscent of a political party.
In October, the Rada passed a law to amend the law regarding the consideration of cases by the Supreme Court of Ukraine. Some argue that these amendments enlarge the powers of the Supreme Court by allowing that court to make new decisions instead of merely sending cases back to High Specialized Courts. The amendments, however, still do not allow the Supreme Court to independently decide which cases it reviews.
Given this tumultuous background, parliament deputy Omelchenko has come to the conclusion that President Viktor Yanukovych is conducting a “purposeful and systematic destruction” of Ukraine’s Supreme Court. The pogrom is being carried out by transferring the power of the Supreme Court to specialized courts, by harassing judges and their families with baseless criminal charges, and by setting up the High Council of Justice as an overwhelming force of disciplinary proceedings that can be used to pressure judges into compliance with the President.
The devaluation of the Supreme Court conflicts with the constitution. As noted above, the constitution guarantees to Ukrainians that one court – the Supreme Court – will be the highest court in the land. The recent judicial “reform,” however, has stripped the court of its power to hear final appeals in many cases.
The Supreme Court is also “subject to incredible pressure.” High-profile discharges for oath-breaking and bringing criminal charges against judges’ family members can only work to subdue and suppress the Supreme Court. The aim is clearly promotion of the political power of the President and his team at the expense of the judiciary.
When Ukraine’s constitution was first adopted in 1996, many, including the Venice Commission, commended Ukraine for enacting a document that guaranteed human rights. Now, however, Ukraine finds itself in the unenviable position of having its actions questioned and condemned by those same observers.
Currently, attempts to sign an association agreement with the European Union hinge on the release of former Prime Minister Yulia Tymoshenko, and the international community has grown gravely concerned with trials of political figures in Ukraine.
A strong, independent judiciary can assure both international observers and Ukrainians that people are tried for violations of the law, not for political disagreement. Hopefully, the commission to rewrite the constitution, headed by former President Leonid Kravchuk, will keep these comments in mind as it carries out its work.
Bohdan A. Futey is a judge on the United States Court of Federal Claims in Washington, D.C., appointed by President Ronald Reagan in May 1987. Futey has been active in various rule of law and democratization programs in Ukraine since 1991. He has been a consultant to the working group on Ukraine’s constitution and Ukraine’s parliament.
