Legal experts say new court law would deepen judicial problems

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July 15, 2010, 11:10 p.m. | Politics — by Peter Byrne

Ukrainian legal experts and human rights advocates joined opposition leaders this week to criticize the new law on the court system passed by parliament on July 6.

Ukrainian legal experts and human rights advocates joined opposition leaders this week to criticize the new law on the court system passed by parliament on July 6. Instead of strengthening judicial independence in the highly corrupt system, where rulings are often dispensed for bribes, critics say the changes would deepen judicial subservience to the executive branch of government.

The 151-page law – yet to be signed by President Viktor Yanukovych – would create two additional high courts, the High Civil Court and High Criminal Court, and reduce the number of Supreme Court justices from 96 to 20. The High Council of Justice, the pro-presidential 20-member council, will play a more influential role in nominating and dismissing the country’s 10,000 judges.

“The legislature has rubber-stamped another presidential initiative,” Yuriy Yakymenko, who directs political and legal programs for the Razumkov Center for Economic and Political Studies, a Kyiv-based think tank, said on July 14. “Majority coalition leaders completely disregarded negative appraisals of the new court law by the parliament’s own legal experts before flooring the bill.”

If signed into law, all issues involving the election and dismissal of judges elected for an indefinite term should be considered by the Higher Qualified Commission of Judges of Ukraine and the council.

[Note: The Higher Qualified Commission of Judges of Ukraine consists of 11 members. It is composed of two judges appointed by a congress of representatives of legal educational institutions and scientific establishments, as well as one judge each appointed by Ukraine’s justice minister, the Verkhovna Rada human rights commissioner and the head of the State Judicial Administration of Ukraine.

The High Council of Justice is a 20-member panel empowered under the Constitution with vetting candidates and disciplining judges for violating their oath. ]

The new law also foresees the strengthening of penalties for the non-fulfillment of court rulings and stricter penalties for contempt of court. In addition, it obliges judges to declare their expenses if they exceed the amount of their monthly salary.

The haste with which parliament considered the changes was politically motivated with the aim of subjugating Ukraine’s court system to a small number of people, said opposition leaders, who said they would ask the Constitutional Court to nix the bill.

Volodymyr Yavorskiy, executive director and chairman of the Ukrainian Helsinki Human Rights Union said the new court law would make judicial independence even more “illusory” than it is now.

“The new law expands the authority of the High Council of Justice to appoint and dismiss judges,” he said. “The council is a political organization. Most of its members are regarded as loyal to the president.”

The Helsinki Union’s chairman, Arkadiy Bushchenko, a lawyer in Kharkiv, was also critical, blaming the new law for complicating an already confusing situation. “The new law essentially creates four separate jurisdictions: civilian, criminal, administrative, and economic. Each is so far removed from one another that Ukraine will now have four different types of law and four different kinds of legal systems,” Bushchenko said.

In an open letter, Supreme Court Chairman Vasyl Onopenko on July 12 appealed to Yanukovych to veto the new court law, saying the changes would increase political pressure on the courts and impinge on the independence of judges.

“The new court law will negatively impact Ukraine’s image and move the country away from the path of democracy,” the letter says.

Olexiy Haran, director of the School of Political Analysis at the National University of Kyiv-Mohyla Academy, said he expects the president to sign the law. “Theoretically he could show his adherence to principle, because there are a number of clauses [in the law] that contradict the constitution,” Haran said.

The Supreme Court is currently the final appellate court in the system of courts of general jurisdiction in criminal and civil cases, while the High Economic Court and High Administration Court are the last stop for commercial disputes and cases involving government institutions.

Presenting the new law at an evening session attended by only 30 lawmakers, Justice Minister Oleksandr Lavrynovych said the court cannot please the entire court system and all legal eagles. “The new court law will bring justice closer to citizens,” he said.

Serhiy Kivalov, head of the parliament’s Judiciary Committee, said lawmakers worked closely with the presidential administration and international legal experts to draft the bill.

“Our new law on the court system more fully complies with European standards, thanks to close cooperation with experts from the Venice Commission. We now share the same goal: to build a European legal environment in Ukraine,” Kivalov said.

Thomas Markert, Venice Commission secretary, told the German information agency Deutsche Welle on July 4 that the latest version of the court law indeed reflected some recommendations by his commission, but it remained “too complicated” to analyze quickly. The Venice Commission will only be able to complete its review in October, he said.

Kyiv Post staff writer Peter Byrne can be reached at
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