Venice Commission baffled as to the logic of changes made to Ukraine’s judicial system

Secretary of the Council of Europe’s Venice Commission, Tomas Markert, spoke of the Commission’s bemusement as to the logic of the changes being made during a meeting at the Supreme Court, Dzerkalo Tyzhnya [Weekly Mirror] reports.

Mr Markert stressed that in all European countries there are supreme courts vested with high powers in order to ensure standardization of court practice, to pass precedent rulings and provide a model legal position for courts at all levels. Why the Supreme Court in Ukraine had been stripped of such powers, what logic had been behind the legislative changes was not easy to grasp, he said. It was not for nothing that in its opinion, the Venice Commission had stressed the need to rectify the situation, return the highest court body the powers enshrined in Ukraine’s Constitution.

According to the Court’s official website, the Acting Head of the Supreme Court, Anatoly Yarema thanked the European experts for their cooperation with the Supreme Court, and pointed out that the Venice Commission had made an extremely significant contribution to the formation of Ukraine’s law.

Asked by the members of the Venice Commission to describe the situation in detail, the Supreme Court judges present at the meeting said that in practice they were being totally pushed out of the judicial system of the country. This was in procedural terms though the adoption of the relevant amendments to legislation, and physically through unlawfully transferring Supreme Court premises to the High Specialized Court and depriving judges and staff of the Supreme Court of the necessary conditions of work. They said it would be hard to imagine a more shameful situation.

They pointed out that the deliberate destruction of the Supreme Court was taking place after the publishing of the Venice Commission opinion which the Ukrainian authorities had promised both the Commission and the Ukrainian public to take into consideration. In a supposedly legal fashion they were not only pushing out judges and staff of the Supreme Court, but were making it impossible to examine hundreds of cases which had reached the Court before the passing of the Law on the Judicial System and Status of Judges.

In fact, the Venice Commission was informed at the meeting that a draft law had been registered in parliament on transferring those cases from the Supreme Court to appellate courts. Yet in many of these cases, proceedings had already commenced, court examination was underway, and for those people held in custody procrastination in reviewing their cases was unacceptable.

The Supreme Court judges stressed that Ukrainian lawyers, legal experts and analysts had called on the initiators of the judicial reform to not adopt any laws concerning the justice system without the assessment of the appropriate European institutions, in particular, the Venice Commission. Unfortunately their calls had not been heeded.

Anatoly Yarema stressed that they were still not paying heed to judges, despite the fact that from the Supreme Court alone, the President’s Administration had received 28 pages of proposals regarding comprehensive improvement of the Law on the Judicial System and Status of Judges. The government, however, was in no hurry to rectify the mistakes and the Ministry of Justice was planning to introduce amendments in August 2011. How is the court system to function until then? The judges are convinced that the “improvements”, however much they delay amendments, will not work.

At the end of the meeting, Tomas Markert said that he and his colleagues shared the concern of the Supreme Court judges and would endeavour to pass this on to all members of the Venice Commission and representatives of other European partners which view Ukraine as a worthy partner. They would do all in their power so that the country with a fledgling democracy in its development did not lose achievements already gained.

During the 84th Session of the Venice Commission during the second half of October, Tomas Markert stated that his colleagues had two views regarding the amendments to Ukraine’s judicial system. “The Venice Commission’s conclusions were divided. He said that in their final assessment they had found a number of negative changes. “One of these is that virtually all powers have been taken from the Supreme Court and its status has been lowered to such a level that it can not even function normally.” He added that particular provisions of the Law regarding the powers of the High Council of Justice also caused concern. “Some powers of the High Council of Justice, for example, inspection of court rulings before their adoption and a number of others raise many questions.”

At the same time, he said, the Commission had “noted certain progress” in reform of Ukrainian judicial legislation. “Several Venice Commission recommendations were taken into consideration. Automatic distribution of cases between judges, for example, has been improved.”

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