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Judicial appointments and a constitutional review spell trouble for the rule of law.by Halya Coynash 2 August 2013
Viktor Yanukovych took Ukraine’s presidency in February 2010 affirming commitment to democracy and rule of law, and has continued to roll out the words on all state occasions ever since.
But instead, he kicked things off with a judicial overhaul in 2010 that gravely eroded judges’ already fragile independence. Wearied by Ukraine’s permanent state of chaos, Western observers were slow to react, but alarm bells became too loud to ignore later that year with the first arrests and subsequent trials of Yanukovych’s key political opponents and members of the former government.
There is a danger now that the pardoning of former Interior Minister Yuri Lutsenko and the focus on former prime minister and opposition leader Yulia Tymoshenko’s release will obscure deeper problems afflicting Ukraine’s judicial system. Some of these are highlighted by recent moves supposedly aimed at complying with an international commission’s recommendations on constitutional reform, as well as by the ongoing moves to secure loyalty from the main courts in the land.
IT’S WHO YOU KNOW
News of the appointment two weeks ago of a close ally of Yanukovych as head of the Constitutional Court was accompanied on many websites by close-ups of Judge Viacheslav Ovcharenko’s watch, valued at around $27,000. However the real focus of media attention – and cynicism - was the judge’s connection with the president and the fact that he had once been the head of the court that “lost” all record of Yanukovych’s two criminal convictions.
Ovcharenko is one of many judges, especially of higher courts, from the same Donetsk region as Yanukovych and his closest associates. The roles played by some of these courts give grounds for assuming that their selection reflects more than geographic loyalty.
The High Administrative Court has aroused serious concern this year over its interference with the electoral will of Ukrainian voters. In February it cancelled the election of two members of parliament whose victory had already been confirmed by the Central Election Commission. The opposition claimed the two, who ran as independents, had been punished for not aligning themselves with the Party of Regions once in parliament.
The next court ruling was more sinister and suggested close coordination among the prosecutor general, the ruling party, and the court. In early March two lawmakers were stripped of their seats supposedly for combining their parliamentary work with other professional activities, although that is what virtually every legislator in Ukraine does, many quite openly. One was an obscure Party of Regions member, the other Serhiy Vlasenko, Tymoshenko’s “defender” (an informal position in Ukrainian law for which he was not paid) and prominent opposition lawmaker. Vlasenko had also been facing some rather odd criminal charges that were dropped just before the court hearing over the application to strip him of his mandate, with some later reinstated. The obvious attempt to obscure the political motive behind Vlasenko’s ouster by throwing in a Party of Regions member fooled no one, and statements of concern poured in from western countries.
The same High Administrative Court has been responsible for other seriously questionable rulings against, for example, freedom of peaceful assembly.
Some rulings from this or other courts would seem to be in overt breach of the constitution, yet there is no longer any confidence that the Constitutional Court will see it that way. That court has handed down some strange judgements, some directly contradicting judgments issued by the same judges as little as 18 months earlier. Most recently it has given its imprimatur – in the name of “stability” – to the postponement of Kyiv mayoral and council elections, widely expected to oust the president’s protégé, until well after the presidential elections and considerably beyond the constitutionally stipulated terms of office. This and other judgments and/or refusals to consider sensitive constitutional submissions have all primarily suited the president and ruling party.
Another problematic appointment with constitutional implications has been that of Mykhailo Okhendovsky, also close to the president, as head of the Central Election Commission. This gives Yanukovych a clear advantage in the run-up to the presidential elections, but there might be more to it than that.
Under a law on referendums that came into force in November, the Central Election Commission has a major and largely unregulated role in administering referendums on any subject, including constitutional amendments. The law makes the central commission responsible for appointing local commissions to administer the referendums based on recommendations from local officials, who would be free to put forth friendly names.
There are other dangers. Any number of questions may be combined in one referendum, with no guidelines on how the questions should be framed. The scope for manipulation is enormous, as is the likelihood that people would have no real understanding of what they were voting for. Nor is there a minimum turnout requirement, yet this supposed demonstration of vox populi would be final.
An assessment of the law by the Venice Commission – a body of experts on constitutional and legal matters – was damning for all these reasons, although the commission’s greatest concern is that the law makes it possible to change the constitution without a two-thirds parliamentary majority – which the ruling party does not have. But there will likely be little hue and cry about this, as most national media sources, particularly television, are owned by people close to those in power.
In an ongoing review of possible changes to the constitution, Yanukovych established the Constitutional Assembly, an advisory group including representatives from think tanks and civic groups as well as experts from outside the government.
But reports from members of the commission suggest that setting up the group was a pro forma gesture and that the group’s real role was meant to confer legitimacy on whatever Yanukovych’s team decided.
“This is perhaps because it was largely created for broad discussion in order to imitate involvement by specialists in resolving issues of state significance and [reinforce] their sense of being a part of important changes,” Ihor Koliushko and Roman Kuybida from the Center for Political and Legal Reform write in the influential weekly Dzerkalo Tyzhnya.
They compare the group to a similar body established in 2010 during the judicial overhaul. The resulting law in that case, they write, “effectively emerged from the president’s administration but was presented as being from the Working Group on Judicial Reform.”
The bill thus far presented to the Venice Commission is about measures to enhance judges’ independence. Some problems with the draft, including the questionable marginalizing of the Constitutional Assembly, are picked up by the Venice Commission, while others unfortunately could not be.
Among other issues, the commission insists that the term “breach of oath” – as possible grounds for a judge’s removal from the bench – be clearly defined to avoid abuse. But a recent study has shown evidence of other methods of pressure on judges. Despite huge numbers of complaints about judges, no disciplinary proceedings at all have been taken against judges from specialized or higher courts. Other judges ostensibly faced penalties for missing official schedules for examining cases or other procedural infringements. Since these problems are caused by an unreasonable work load and underfunding, any decision to bring disciplinary proceedings is largely arbitrary, and there are plenty of examples where such penalties were directed at judges whose rulings had gone against the prosecutor’s position.
It is doubtless no accident that at a time when confidence in the law enforcement bodies is at an all time low, the acquittal rate has plummeted to near zero (0.2 percent of all verdicts in 2011; 0.17 percent in 2012). Human rights organizations have long warned that judges are under pressure to convict and fear possible difficulties if they don’t oblige. At the same time, those who hand down verdicts pleasing to Kyiv, including Rodion Kireyev, who sentenced Tymoshenko to seven years’ imprisonment, have a way of rising through the ranks.
But good luck to the public in finding that out. Laws passed or under consideration have reduced its access to information about court rulings, judges’ income, or information about them altogether.
The bill recently assessed by the Venice Commission purports to rectify failings in the 2010 judicial changes. On paper it does, including removing parliament’s role in appointing and dismissing judges. The bill gives the president authority to appoint, move, or dismiss judges on the basis of submissions from the High Council of Justice and the High Qualification Commission. It even proposes measures to ensure independence of those bodies.
The details of the bill, however, leave plenty of room for abuse. The draft proposes making the High Council, which consists of judges, court officials, and the prosecutor general, more “judge heavy.” Given that the judge members would be elected by judges’ associations, the change is meant to further insulate the council and commission from political pressure. But it’s hardly a guarantee. The associations contain, for example, a disproportionate number of judges from specialized courts, where there are no official criteria explaining how they are appointed and where – again – a significant number are either close to the president or hail from his Donetsk region.
The Venice Commission stresses the need for transparency. At present none is on offer, and if the two bodies with power over the hiring and firing of judges are elected by bodies that only nominally represent all judges, a significant increase in judges’ independence seems just as far off as ever.
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