In a Kyiv Post interview, Supreme Court Chief Justice Vasyl Onopenko criticizes last year’s judicial reforms saying they disrupted the balance in the nation’s judiciary system.
Since Viktor Yanukovych took over as Ukraine’s president one year ago, he has systematically monopolized most levers of power in the country by putting loyalists in charge of all branches of government. The only major exception is one influential position in Ukraine’s judiciary branch. Vasyl Onopenko remains chief justice of Ukraine’s Supreme Court, a position he was elected to nearly five years ago when he was a political ally of current opposition leader and ex-Prime Minister Yulia Tymoshenko.
Last year, Yanukovych’s governing coalition tried to undercut the Supreme Court’s influence by adopting legislation that sharply cuts its authority. But the move drew strong protest from the Venice Commission, the Council of Europe’s advisory body on constitutional matters. The commission is pressuring Yanukovych’s governing coalition to return lost authority to the court. It remains to be seen if Yanukovych’s administration will do so.
Even if they do, however, Onopenko’s days at the court could be numbered. He claims to be facing increasing pressure to step down, citing criminal investigations into his one of his daughters and his son-in-law, Yevhen Korniychuk, a former deputy justice minister, arrested last year and still jailed on abuse of power charges for not holding a competitive bid in the selection of Magisters law firm to represent state-owned Naftogaz, the energy monopoly.
In a Kyiv Post interview, Onopenko questioned the fairness of investigations into his relatives and pledged not to quit. He criticized last year’s judicial reforms saying they disrupted the balance in the nation’s judiciary system and called for a face-to-face meeting with Yanukovych.
Read the Ukrainian-language version of Valeriy Onopenko’s interview with the Kyiv Post here
Kyiv Post: You are calling for a meeting with Yanukovych. Is a date set?
Vasyl Onopenko: I did initiate such a meeting to inform the president about the real situation in the justice sphere after last year’s judicial reform. But a meeting has not yet been scheduled.
KP: Do you consider the raid by prosecutors earlier this month at the Kyiv office of Magisters law firm, in which your son-in-law Yevhen Korniychuk once worked, as one of the investigations through which someone is trying to put pressure on you?
VO: I do not think so. I do not have and have never had any connection with this company. This company also had no relation to the Supreme Court of Ukraine. And Korniychuk left the firm long ago.
KP: You have said that criminal proceedings against your relatives are indirect pressure on you. What is the goal of those who resort to pressure you?
VO: There are two scenarios here: either to make me change my position as head of the Supreme Court, or to make me resign.
KP: Who do you think is behind such a plot?
BO: I don’t want to rush to judgment or speculation, but hope that a meeting with the president will help me clarify this.
KP: Political analysts say the pressure could be coming directly from deputy head of the presidential administration Andriy Portnov or the first deputy prosecutor general, Rinat Kuzmin. Do you see such an explanation as plausible? Both reportedly had conflicts with Korniychuk.
VO: As far as I am informed, there really were some personal conflicts between Korniychuk and these individuals. However, I am convinced that one cannot use official powers to resolve personal conflicts. This would be abuse of power. [Editor’s Note: Neither Kuzmin nor Portnov have responded to recent Kyiv Post interview requests. Both were not immediately available for comment when called for response to Onopenko’s comments.]
KP: Don’t you think that in the centralized power structure that exists in Ukraine today, such pressure could not be approved without permission from the top, from President Yanukovych?
BO: I find it hard to judge. I need to meet with the president, above all to discuss the state of the justice system and the negative consequences of judicial reform. It has been six months since it was adopted. Its effects are obvious. Courts as judicial bodies and judges have lost their independence. This is a direct threat to the judicial protection of human rights. As a result, the country and, therefore, the president as head of state, are losing credibility. Only those who aim to manually control the courts are benefiting.
KP: The president, by law, has formal influence over parliament and the Cabinet, but not on the judicial branch. Hypothetically speaking, why would you, therefore, seek to talk with the president on these matters?
VO: The president is the guarantor of the constitution and human rights. In fact, most of his powers extend to the executive branch, the police, which in the absence of an independent judiciary are becoming uncontrollable and therefore dangerous to society. At the same time, a president has certain powers to solve personnel and organizational issues of the judiciary. In addition, the president is a subject of legislative initiative and signs laws adopted by the parliament. So, altogether these powers give him an opportunity to influence the situation.
KP: Will you raise the issue of criminal cases against your relatives during your meeting with the president?
VO: This is not the main question of the meeting. The main thing I want is to inform the president of the problems that exist now in the judiciary branch. Recently, during the official opening of the court year in Strasbourg, in which I participated on the invitation of the president of the European Court of Human Rights Jean-Paul Costa, I met with the European parliament commissioner for human rights, judges of the European Court of human rights and with the management of the Venice Commission. They are very concerned with the reduction of the level of judicial protection of human rights and liberties in Ukraine.
When the current law on the judiciary was discussed, I was the only one among top state officials to strongly oppose it. I told the parliament not to adopt the bill. I also asked the president to veto it. Then the president told me: let it work for six months and let’s see the results. Today we see the results are mostly negative.
The Supreme Court has been denied the ability to perform its constitutional function. No one guarantees the unity of case law and equal application of laws in state courts. The Supreme Court, which previously did it, is now deprived of such powers. [Other] courts have gained status higher than the Supreme Court. For a case to get to the Supreme Court, you need permission from five judges of a high court to allow the Supreme Court to even review it. This does not exist anywhere in the world! It deprives citizens of access to the highest judicial body in the country and deprives the Supreme Court of the right to judge. If a high court does not allow the case to proceed to the Supreme Court, then citizens or legal entities have no other choice but to appeal to the European Court of Human Rights.
KP: Would you say that the Supreme Court of Ukraine may now be the last outpost of an independent judiciary in Ukraine?
VO: It’s true. The Supreme Court is the most competent, impartial and independent judicial body. It is the highest judicial instance that, according to the constitution, can make a final decision. But the current laws [adopted last year] prevent us from performing this role.
KP: But people in Ukraine’s business community say that you are one of the perpetrators of the system in which arbitration takes place outside the court and decisions and court rulings can be bought. What do you say to that?
VO: No one can blame me for this.
KP: Then why do businesses, including foreign businesses in Ukraine, have such little faith in its domestic courts?
VO: I am not standing behind every single court. Such cases are ruled in economic courts. And I have nothing to do with economic courts.
KP: But they name you?
VO: They can name whoever they want to. Even the sun has spots on its surface. But I have nothing to do with arbitration in economic courts. This is a provocative question that should not be even asked. This is not the first time I said that those who are not satisfied with my firm position [regarding the judiciary] say things like that.
KP: Maybe the Supreme Court’s authority was limited because you have a different view, because you are not part of the loyal team?
VO: That’s what many experts, politicians, and journalists say.
KP: If the situation regarding your family does not change even after you meet with the president, how will this story end? What might be your next steps?
VO: My term as Supreme Court chairman ends in September. Until then, I have no reason to leave. Of course, these investigations against my relatives do not, from a psychological standpoint, contribute to a good mood. When a criminal case is launched in what is a civil dispute (his daughter’s alleged failure to pay back a loan), it is frustrating. How will it end? By closing down the proceedings in the case, because this is a civil, not a criminal case.
KP: Have prosecutors already contacted your daughter?
VO: This is a question for the General Prosecutor’s Office. My daughter, Iryna, is an adult and independent person who makes her own decisions and actions and should be responsible for them.
KP: Did you talk to her after the criminal case against her was launched?
VO: After it was launched – no.
KP: Why not?
VO: As a parent, I do not want to complicate her situation. She is now suffering because of me. However, I am willing to help her resolve the civil dispute by paying off the loan.
KP: Back in December 2004, in the heat of the Orange Revolution, the Supreme Court played a big role in making a ruling that ordered a repeat vote in the disputed presidential election. You were not head of the court then. But if the justice system in Ukraine deteriorates further, could the court – now under your leadership – make any decisive decisions which could make a difference?
VO: First of all, as I’ve said, the Supreme Court has been, generally, deprived of the rights to make decisions as such. Secondly, even if the Supreme Court had this authority, I could not answer this question because decisions are made by all of the court’s judges. Thirdly, you posed a hypothetical question, the circumstances of which are not known. Fourthly, some of these questions you posed are not a subject to review for the Supreme Court, but for the Constitutional Court.
KP: What will you try to achieve during your meeting with the president?
VO: There will be a more global discussion about the situation in Ukraine, criminal prosecutions, including arrests of people. This is not about my relatives. It’s about the general situation. Cases regarding my younger daughter and the husband of my eldest daughter, Yevhen Korniychuk, are only specific examples of a general problem.
As a lawyer, I always held the position that arrest should be a last resort. As lawmaker, I introduced a bill according to which only those suspected in murder – that is people that may be dangerous to society – should be detained. But now in Ukraine we see the level of arrests to be the highest of all European countries.
KP: So you think you that Korniychuk should not have been arrested?
VO: Based on the circumstances known to me as a lawyer, I see no legal grounds for detaining and arresting Korniychuk. As far as my daughter goes, at issue is a common civil dispute. She was ready to solve, to pay off the debt, but suddenly the legal action started. It turns out that paying back the loan was not needed. They needed to make a criminal case out of a civil one in order to discredit and pressure me through my daughter. On Jan. 31, they filed a lawsuit. The following day, the General Prosecutor’s Office launched a criminal case.
KP: Don’t you see the fact that Kuzmin signed the decision to launch a criminal case against your daughter as a signal of direct pressure upon you?
VO: I’m so often asked about pressure on me through this case. Each time I answer I have fewer reasons to say no.
Kyiv Post staff writer Yuriy Onyshkiv can be reached at [email protected].
