Wednesday, October 19, 2011

Reformist jurist removed from the bench

Ukraine Jurist, Vasyl Onopenko, has retired from Ukraine's Supreme Court, hsi appointment not renewed. report Kyiv Post

Onopenko was a modern jurist who understood the inner workings and faults of Ukraine's judicial system. He also understood how it should work. he was also a member of Parliament elected as part of Yulia Tymsohenko's bloc but he stresses that on being appointed to the Supreme Court he would not not be partisan ion his judgements.

Last year Onopenko had reported that he and his family had been the subject of a number of threats which he took seriously.

In June 2007, at the height of controversial legal challenges facing Ukraine arising from Victor Yushchenko's dismissal of Ukraine's previous parliament, Onopenko gave an interview reported by Zerkalo nedeli (24 (653) 23 — 29 June 2007)

This interview highlights a number of flaws in the Judicial process and in particular the level of political interference in Ukraine. The interview was in response to the judicial and constitutional crisis that Ukraine was facing at the time, but it is still of relevance today.


Copy of Interview

The VIII Congress of Ukrainian judges is to be held on 26 June 2007. It will be an extraordinary congress, both in form and in essence. The judges planned it for the autumn, yet in the early summer it became evident that a delay would be damaging, if not ruinous, for the judiciary, society and the state at large. What urged the traditionally conservative and apolitical judicial community to take this decisive step? What threats does the Ukrainian judiciary face? What are the implications of its further degeneration for a layman and the nation in general? ZN asked Vasyl ONOPENKO, Chief Justice of the Supreme Court of Ukraine, to comment on these and some other pressing issues as well as lasting challenges in the judiciary.

— It is for the first time in the history of independent Ukraine that the judiciary is so deeply involved in a political conflict, which threatens to undercut the legal fundamentals of court operation. And, as far as I can remember, it is for the first time that judges have decided against keeping aloof from the processes affecting the administration of justice in the country. Your Honour, what are the motives behind the latest events?

— For a long time, public policy in respect to the judiciary has been unreasoned and inconsistent; justice has been administered in the interests of a single person or a powerful group. The nation still lacks basic prerequisites for unprejudiced and fair courts. We have not got a homogeneous judiciary system, which sometimes leads to internecine wars amongst several court subsystems. Nor have we got a uniform court practice, which breeds lawlessness. The structure of the judiciary is ineffective; it cannot ensure all citizens’ equal access to justice. The court procedures are too complicated and cumbersome; interference with court operations and political pressures on judges have intensified. At the same time, judges have assessed the situation from the inside, identified negative trends and risks that have emerged of late, and analysed their root causes.

It is important to note that the judges have come to redefine their own legal and social status, to realize the need for protecting court independence and judge autonomy guaranteed by the Constitution, and for establishing the equality among the legislative, executive and judicial branches. My colleagues want to function and feel as true judges; they are getting increasingly resistant to arbitrariness and, faced with the need to defend themselves, they better appreciate their responsibility for proper court protection of their compatriots’ rights.

All of us – from the president, a minister, an MP to a person in the street – should learn to live in a country where the court represents the deciding judicial power. For the court to make legitimate and fair decisions, we should work together to create the necessary conditions rather than interpret court decisions or evaluate them subjectively.

I spoke about it in the Verkhovna Rada in February, yet parliamentarians were so engrossed in political battles that very few heard my message, alas. We had hoped for an adequate reaction from other institutions of public administration. Instead, they responded with bringing a more cynical, systematic and undisguised pressure to bear on courts and judges, with attempts to undermine the integrity of the court system, politicize the courts and turn them from watchdogs of justice into instruments for pursuing political, corporate and private agendas. The current political crisis has exacerbated the destructive processes in the Ukrainian judiciary and generated serious new risks.

— Does it mean the courts had a chance to give up their traditional role of servicing those in power? Could they become an obstacle to illegitimate satisfaction of political and business interests, given the “change in image” of two district courts – Pechersky and Shevchenkivsky – in the capital city?..

— Indeed, over the last six months, chief judges in half the district courts in Kyiv have been replaced, which had a positive impact on the courts’ operation. It pertains to the Pechenrsky and Shevchenkivsky District Courts, notorious for corruption and unlawful judgements in the past. Chief judges are being replaced in oblast courts as well. It is a precondition for reforming the administration of courts, for putting the entire court system in order. Frankly speaking, we are confronting a lot of problems on the way; decisions are hard as they affect people’s professional reputation and future career.

HR policy is a soft spot of the judiciary, a cause of numerous troubles, including corruption, delays in case processing and hearing, and low quality of court decisions.

— Before discussing what is going on in the courts, could we look at what is being done to the courts? Among the most recent developments around the courts that come to mind is the President’s sharp criticism of the court ruling on the Kyiv Oblast governor’s reinstatement in office and your riposte to it. As a result of this and many other similar episodes, unconstitutional resolutions and laws have been passed, which are disastrous to the judiciary. Judiciary responsibilities are being misappropriated or handed over to institutions unfit and unauthorized to exercise them. I do not remember anything like this in the history of Ukraine’s independence…

— I started my career as a judge back in 1976. Since then, I have seen different approaches to courts and ways of treating them. In some periods of our history the powers that be viewed courts as an adjunct to the party or executive authorities, in others (e.g. in the 1990s) – as a nonentity that could be totally disregarded. It was at that time that the judges’ professionalism deteriorated dramatically, and the status of justices in the higher courts fell. Yet today’s pressure on the judiciary and impertinent interference with the courts is unprecedented. These wicked phenomena have transcended all acceptable bounds. Whereas in the past only individual officials interfered with the court’s activities, today this practice has become common for various institutions. Intrusion into court matters has become a policy of sorts for some bodies of state power.

The Presidential Secretariat would prepare and submit for issuance by the head of state ordinances vis-à-vis judges that are not consistent with the effective legislation, for instance ordinances on appointing acting chief judges. High-ranking officials in the Cabinet of Ministers would send letters to courts demanding that courts update them on the progress of cases to which the government or individual ministers are parties, in fact requiring preferential treatment for the government as a litigant. MPs, trampling on the principles of the division of power, would usurp the competencies of the judiciary and pass resolutions instructing courts how to rule in specific cases. Furthermore, in defiance of the Constitution and the Constitutional Court decision, Parliament would pass a resolution authorizing the High Council of Justice to appoint judges to administrative positions in courts.

The High Council of Justice, in turn, would flout the legal principles of its activities and take over powers of extra-procedural control of the administration of justice. In some cases, the High Council of Justice would make decisions on recommending to dismiss a judge within days, giving no opportunity for the concerned judge to provide explanations; in other cases – it would put off the decision for months or even years. Isn’t it an attempt to do away with “disagreeable” judges in the former case and to shield the “convenient” ones in the latter?

— How would you explain these massive attacks against the judiciary?

— A fierce political struggle is underway in the country alongside a fight for property (land, industrial assets, etc). The belligerent parties respect no rules but they want to look more or less civilized to the outside world, and they try to win courts on their side or, at least, to neutralize them.

Those who planned to politicize or “privatize” courts failed to understand the responsible stance of judges, their self-regulating bodies and leaders of the judiciary. The judicial community refused to tolerate the dictate. Do you know what the starting point was in combating the mafia in Sicily? When two famous and esteemed Sicilian judges had been killed, Palermo citizens said “Basta!” and took to the streets protesting against mafia.

Of course, Ukrainian judges could not organize the street rallies but they have their own recourses, in particular their self-regulating bodies – Judges’ Council of Ukraine, oblast councils of judges, conferences, congresses – who demonstrated resolute disagreement with the authorities’ attitude to the judiciary. A telling illustration is the conference of the judges of the Pechersky district in Kyiv held on 11 June as a forced reaction to systemic abuse of authority by some MPs, and members of the High Council of Justice directed against the judges of Pechersky District Court. In their conference resolution, the judges indicated that the concerned officials strove to establish illegitimate control over the administration of justice and secure politically motivated court decisions, thus contributing to the devastation of the judicial system in the country.

Look at the resolutions, statements and appeals made by the Judges’ Council of Ukraine over the last six months, or at the joint statement by the Presidia of the Supreme Court and Judges’ Council of Ukraine dated 21 May 2007, which analyses the worrying situation in Ukrainian courts. This statement is addressed to all those who still dream of going at war with the judiciary.

— The Chief Justice of the Supreme Court, as well as chief judges of other courts are in a predicament (are they not?) when MPs approach them, for example. On the one hand, MPs are entitled to make enquiries, and on the other, they have no right to intervene in a specific case under consideration in courts…

— Communicating with high-ranking officials I always underscore that no outside influence should be exerted on courts and judges. You are right in that MPs in Ukraine are entitled to file enquiries with any state body of power, public servant or official, including chief judges. The enquiries, though, cannot cover all conceivable matters – only those pertaining to their parliamentary activities. The MP’s right does not apply to individual court cases. In 1999, the Constitutional Court passed a relevant ruling precluding MPs from making enquiries or recommendations to courts, chief judges or judges with respect to specific court cases.

A lot of MPs, though, tend to disrespect the law and CC ruling; therefore, the Supreme Court Plenum, in its resolution of 13 June 2007 entitled “On the Independence of the Judiciary”, explicated to courts that MPs’ enquiries on specific cases are inadmissible and should not be considered. Moreover, under certain circumstances such enquiries should be considered interference into the court’s activities, punishable under the law.

Analysis of the MPs’ enquiries to courts about specific cases revealed a remarkable trend: there is a handful of MPs who regularly resort to this tool, most of them workers of the judiciary in the past. They write enquiries about commercial, corporate and land-related disputes, etc. Unless they cease this practice now that the Plenum resolution is in effect, we will publicize the information about their enquiries.

— We are all part of the society in which we live. People say one cannot be independent of the environment. Have you, number four in the YTB party list, managed to become independent of your political environment, of the bloc leaders’ interests?

— I am glad you asked this question, since the mass media keep speculating on it. According to the law, MPs are elected as part of party lists. Being the leader of the Ukrainian Social-Democratic Party, a constituent of the Yuliya Tymoshenko Bloc, I was twice elected to Parliament, where I worked as a head of the Legal Policy Committee and, later, a member of the Justice Committee.

When I was elected the Chief Justice of the Supreme Court, I made a clear statement that my party allegiance would not apply within the walls of the Supreme Court. The only authority for me now is that of the law. Courts are non-partisan by definition. So no one should have any doubts whatsoever: I will never give priority to any party interests.

If somebody hoped to have Onopenko as their man at the helm of the Supreme Court, they grossly misjudged me. People can have “their” doctors or lawyers but not judges. Judges work for the common good; to them, the interests of justice are above those of any political force.

— The situation in the judicial system has aggravated since 16 May 2007, when the Constitutional Court passed a ruling deeming unconstitutional the provision of the law which vests the President with the authority to appoint judges to administrative positions in courts. The coalition seems especially concerned. Although the legitimacy of the Verkhovna Rada remains uncertain, they have adopted four resolutions on this issue: first, on a provisional procedure for appointing judges to administrative positions by the High Council of Justice, then a statement on transferring these competencies to the Judges’ Council; later still they decided to set up an ad hoc investigation commission, and finally, on 15 June passed a law on granting this right to the High Council of Justice again. The impression is this topic worries them a lot. What are the legal implications of the above decisions?

— In fact, there is only one legal implication of the CC ruling – the President is no longer entitled to appoint and dismiss chief judges. Nothing else has changed: the appointment and dismissal procedures, as well as relevant decision-makers have remained the same. According to the law, the ultimate links in the above mechanism are the Judges’ Council of Ukraine and the Chief Justice of the Supreme Court.

The Constitutional Court recommended that Parliament adopt the necessary legislative amendments. As per Article 92 of the Constitution, the judicial system, procedures and judges’ status are regulated exclusively by laws. So in order to implement the CC recommendation, Parliament should pass a relevant law that would comply with the Constitution.

What did MPs do? On 30 May, they passed a resolution (not a law) on a provisional procedure for appointing judges to administrative positions by the High Council of Justice. This resolution, supposing it was passed in a legitimate way, is unconstitutional in and of itself; it is legally void and cannot have any legal implications. If we follow this logic, we will end up using regulations (sometimes also referred to as “secondary legislation”) to establish criminal responsibility, to change territorial borders and constitutional order, to abolish human rights and to set up election procedures. In other words, we will continue falling into the trap of unlawfulness.

— Eventually, after the judges’ protests, MPs realized that they, as their chairman put it, passed a resolution “falling a bit short of being a proper legislative act”…

— I wish they had – on 15 June, in spite of the disapproval by the judiciary community and legal professionals, MPs voted for the law cloning their previous resolution. Amazingly, the entire process – from the moment of putting the draft law on the agenda to passing the law – took them 10 minutes!

I understand that someone wishes to lay their hands on appointing chief judges. I also know whose hands these are and how they can manipulate courts and judges. But the newly-passed law is in direct conflict with Articles 8, 19 and 131 of the Constitution that do not refer appointment of judges to administrative positions in general courts and their dismissal from such positions to the competencies of the High Council of Justice. The Constitutional Court asserted this fact in a series of its previous rulings, in particular the 2001 ruling on the appointment of judges reading that, according to Article 131 of the Constitution, the High Council of Justice is not even entitled to nominate candidates for administrative positions in general courts; nor is it authorized to propose appointing and dismissing chief judges to the competent decision-makers.

Empowering the High Council of Justice to appoint and dismiss chief judges would be at variance with the constitutional principle of judges’ independence and court autonomy and would promote further interference into the court management and the administration of justice.

The new law stipulates that the High Council of Justice appoints chief judges and their deputies on the recommendation of one of its members, which means that the appointment of court presidents and their deputies will be conditional on the will of prosecution representatives (since the Prosecutor General and his two deputies are members of the High Council of Justice). How can the courts be independent? In the same vein, a practicing lawyer who is a HCJ member on voluntary basis can initiate the appointment of a chief judge. Tomorrow this lawyer will represent a litigant in the court procedure! The same applies to the Minister of Justice and his first deputy, MPs who are HCJ members. It all makes chief judges and courts totally dependent on the prosecution, the bar, and executive and legislative branches of power.

Some courts have already suspended the Verkhovna Rada resolutions of 30 May and 1 June, as well as the HCJ decision to revise its Rules of Procedure with respect to appointing chief judges.

— In your opinion, who is the decision-making authority over the appointment of judges to administrative positions?

— According to the pertinent legislation currently in effect the only institution authorized, under the circumstances, to appoint and dismiss judges and their deputies is the Judges’ Council of Ukraine. It is laid down in Article 130 of the Constitution and in a number of provisions of the law on the judiciary.

Thanks to the unswerving stance of the Judges’ Council of Ukraine and its Head Petro Pylypchuk, the judges’ opinion was made public at once. On 31 May 2007, the Judges’ Council convened and passed a legally justified resolution. In the order established by law, the Chief Justice of the Supreme Court nominates candidates for approval by the Judges’ Council of Ukraine, which makes a final decision. Candidates are discussed very carefully. We meet with each of them in person, analyse their performance over the last few years. It is part of our responsibilities in terms of pursuing proper HR policy. As of today, the Judges’ Council has appointed over 200 chief judges and their deputies.

— It is no secret that top administrative positions in the courts have been, and still are, a matter of bargaining. Do you know how such positions are obtained today? What can be done to put an end to this evil tradition?

— Rumours have been circulating for quite a while that top positions in courts are often put up for sale. I think some of them are not unfounded. We can counteract this evil by joining efforts. Something has already been done towards this end but the process of judge appointment is multi-staged, which makes it difficult to identify the source of corruption. It is often unclear whence the candidate emerged in the first place, who selected him or her and by what criteria. On the other hand, when a person applies for the position of judge, passes a qualification exam, has the reputation of being a decent and consummate professional, there is no guarantee that he or she will be appointed to the sought position after all.

The ideal option, of course, is to hold a real competition for the position, with all candidates having equal rights and opportunities. Unfortunately, that is not the case at the moment. We should hurry to introduce this practice, and to amend the law accordingly.

— Courts are among the most reviled institutions in this country. Something should be done straight away to start building up public trust in courts (I wanted to say “restore” but there is nothing to restore, in fact). One of the immediate steps, as I see it, should be acting promptly, transparently and effectively to get rid of the judges who broke their oath by engaging in corrupt practices and passage of deliberately unlawful judgements. These judges should be brought to account, as soon as possible. When a local court makes decisions affecting the future of the nation, when different courts make contrary decisions in one and the same case, and the blatant injustice is left unaddressed – it leads to complete licence and, hence, disrepute of the court as an institution.

— Two factors contribute to forming a negative public opinion of courts. First, it is abuse of power by some judges. The break of oath, malpractice, bribe-taking, making of deliberately unjust decisions, misuse of status – all of it has an adverse impact of the public sentiment about courts.

Courts are slow; their decisions are often delayed due to the judges’ workload (up to 200-300 cases per judge). At the same time I know of a civil case that has been under consideration for 10 (sic!) years because of the judge’s intentional inactivity. This kind of a delay should be punishable, and the judge should be dismissed. Sometimes a litigating party would cause the delay, taking advantage of gaps in legislative regulation of the court procedure, which is also harmful for the courts’ reputation.

Every case of law violation by a judge should be thoroughly investigated and promptly dealt with. The existing mechanism of bringing judges to account is inefficient. On the one hand, the guilty judge can easily evade responsibility with the help of personal connections and bureaucratic ruses; on the other – revenge can be taken on a judge who has not violated the law but passed a judgement unfavourable to one of the parties.

Second, the poor reputation of courts and judges sometimes results from manipulations with public opinion. Judges are often attacked by politicians or other interested persons prior to their making a decision in order to force them into obedience. In this case, the mechanisms should be in place for protecting courts and judges, and the persons guilty of exerting unlawful pressure on the court should be penalized.

Greater transparency and public education about court activities could help change people’s attitude to the courts. They know too little about a real situation in the judiciary, problems that courts face and operations of a specific court.

— Mykola Shelest, representative of the judicial community in the High Council of Justice, said recently that by assuming responsibility for the appointment of chief judges this body has opted for an unconstitutional course towards interfering into courts’ activities and bringing pressure to bear on judges. According to him, the underlying reason is the formation, over the last two months, of a majority in the High Council of Justice favouring one political force…

— This statement testifies that the High Council of Justice poses a real threat to justice and society. Other judges have insisted that this body and its individual members are prejudiced and involved in political persecution. Conceived as a body seeking to improve professional skills and competencies of Ukrainian judges, the High Council of Justice is gradually transforming into an inquisition-like institution bullying and browbeating them. This situation should be remedied as the High Council of Justice has a significant role to play in shaping the judicial community, in establishing judges’ responsibility for violating the law and breaking their oath.


How can what you describe lead to the ideal Ukrainian judiciary?

There have to be fewer courts of different levels because it would more understandable for the people where to appeal to defend their rights. People are lost in the numerous court instances, and their cases are wondering from one court to another. Very often a case might reach the highest court and it would turn out that previously it was held in the wrong court (for example, the case was held in the economic court but should have been held in the administrative court). The specialization of the courts is necessary but it has to be done in those parts of judicial system and according to those jurisdictions that would contribute to a more qualitative public justice. The most important thing for the judicial system is its availability to provide accessible, fair, unbiased justice and court decisions. Those are the key characteristics of European standards.

What are the reasons for and the consequences of the present Constitutional Court’s condition?

Undoubtedly the constitutional court’s system and justice on the whole have been damaged and the Constitution Court’s authority has been undermined. The main weakness of the present Constitutional Court is in the principles and approaches of its formation. We can remember that during the first round of the court’s formation the judges were divided between the President and the parliament. And during the last round of the court’s formation that tendency took on a vivid political nature. So by doing that they put a delayed-action mine into the fundamentals of the constitutional jurisdiction. And this mine exploded when every side of the political body that took part in the judges’ appointing demanded a court decision favorable to them.

As a result the Constitutional Court and its judges are being blamed for that. But it all has happened through the politicians’ fault. Fist of all, they couldn’t solve the political conflict in the proper (political) way and, secondly, their actions have made it impossible for this body of power to work. However, people will forget all this and blame judges who could not resist pressure and interference

What is the way out of this situation? Could it be worthwhile to use the past idea – to create a constitution chamber of the Supreme Court?

Indeed, it is just a question of expediency. There could be several options for a way out. The main point here is that there has to be no political influence on the judges’ activity. Those experienced professionals who have a good scientific background should become Constitutional Court judges because their activity mostly includes systematic analysis of legislation and the development of scientifically tenable positions in difficult legal questions. Those are the minimal conditions that could still correct the current situation with the Constitutional Court.

Considering the present situation are you still optimistic about the future of the juridical branch of power?

I am an optimist in general. Besides, there are real reasons for being optimistic today. We have no choice but to create a fair court. Otherwise the country will shiver with political fever forever. The juridical power should be independent and should act on the principals defined by the Constitution in order to carry out its primary legal and social functions.

Do you think that holding a Congress of judges would change the situation in juridical sphere?

This Congress of judges is an extraordinary measure which has emerged from the present situation. When the state bodies of power which should provide the independence of the juridical branch of power guaranteed by the Constitution do not cope with this task the judges should defend themselves, their status and the court as a body of justice. This is necessary for the court to be able to defend the rights and freedoms of citizens. And we will do that.

I had thought you were quite a tolerant person. But it looks like you are changing in this post, you are becoming stricter, you are starting to say things that you don’t really want to say. Am I right?

I have always been following some principles in my life. I am not a conflict person, I always try to reach the agreements and compromises. However, if I am sure that I am right then I would stand for my point of view firmly. I have accepted the highest post in juridical system not because I want some preferences. I have everything for the well-being of my family. But every person should have his or her life’s work. And perhaps this post is mine.

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