Yanukovych’s Judicial Reform: Power & Policy

(Media Credit/Reuters)

By Peter Solomon Jr., Professor of Political Science, Law and Criminology, University of Toronto

Within a mere four months from the formation of a working group to adoption, the Yanukovych team produced in July 2010 a major law on the judiciary and the courts. Addressing long standing issues such as the system of judicial appointment and discipline and the power of the high courts, the law represented at one and the same time both an instrument for gaining and imposing power over the judiciary and an attempt to improve the administration of justice. In fact, the new law drew heavily on ideas developed at the National Commission for the Strengthening of Democracy (under former President Viktor Yushchenko), as well as experiments in judicial administration conducted with the help of international projects.

The last years of the Yushchenko presidency were marked by crippling conflicts over draft laws on the courts and bitter battles among warring political groups over such matters as who had the right to appoint chairs of courts and who would control courts of political importance, such as the Constitutional Court and the administrative courts.[1] Yanukovych’s victory meant that one political team was now in charge and in a position to impose its will. The recruitment of Andrei Portnov, a Bloc of Yulia Tymoshenko politician, to handle the judicial file for the president did provide some balance to longstanding Party of Regions politicians like Sergei Kivalov.

The most publicized change was the reduction of the Supreme Court of Ukraine from 80 to 20 members, and the elimination of much of its appellate jurisdiction in favour of a new high court of general jurisdiction for civil and criminal matters and the top economic and administrative courts. The idea of reducing the power of the Supreme Court over lower courts was central to the National Commission’s plan and approved by the Yushchenko group, but the Yanukovych team used this device to undermine the power of Vasilii Onopenko in particular, the chair of the Supreme Court and leader of judges not tied to the Party of Regions. In fact, the law took away from the Supreme Court so much of its jurisdiction that the Venice Commission complained and in early 2011 draft legislation promised to restore some. But it is clear that the judges associated with Yushchenko and Tymoshenko have lost their stronghold.

The reform also established a new system of appointing and disciplining judges with a focus on the High Qualification Commission (now a permanent body consisting of judges working full time and resembling what the National Commission proposed) and the Higher Council of Justice, still dominated by the Party of Regions but with more and more judge members to meet the requirements of the Venice Commission (this body got the right to appoint chairs). Initially, the Council facilitated the firing on pretexts of a number of judges who had acted against the Party of Regions (what amount to a purge), but in the long term the new system of appointment and discipline has the potential to work effectively, as long as partisan politics do not keep intruding.

One positive aspect of the new law is the commitment to providing special education, including practical training, to newly appointed or candidate judges, through the School of Judges that is being established on the basis of the former Academy of Judges (that organized mid career judicial training). While the law originally gave a special role to the institute in Odessa controlled by Rada Justice committee leader Sergei Kivalov, recent amendments eliminated this, and the responsibility for determining how and where judges will be trained is squarely in the hands of the new High Qualifications Commission (Igor Samsin) and the new head of the Judges School (former Supreme Court chairman Vasyl Maliarenko).

Finally, the new law calls for the professionalization of court management, putting the main responsibility for running the courts in the hands of the chief of staff (now called court manager), to be appointed by the State Court Administration (now subordinate to the judiciary), and taking it away from the court chairs. The chairs of courts will lose the power to assign cases to particular judges, as random case distribution is introduced into all courts (required during 2011), and operate with a narrower list of powers than before. According to Portnov, chairs “will lose the means to influence material technical support of judges on their courts and the right to provide organizational guidance to judges”—tools that have throughout the post Soviet space have limited the independence of individual judges. In short, the reform calls for all courts to move toward a professional model of court administration, with empowered staff and a weaker chair, and emphasizing efficiency and accessibility. These were central goals of the recently just completed Canada Ukraine Judicial Cooperation Program.

The implementation of the Yanukovych judicial reform, especially its better features, requires financial support. While the creation of a new high court for civil and criminal matters has funding, there have been no new funds provided to ordinary courts to support random case distribution or the recruitment of effective court managers. Instead, in 2011 courts in Ukraine face a budget cut (in the form of budgets that do not reflect inflation). If the leaders of Ukraine are serious about improving the courts, and not simply assuming control over them, they must provide the financial wherewithal necessary for their improvement.

[1] Alexei Trochev, “Meddling with Justice: Competitive Politics, Impunity, and Distrusted Courts in Post-Orange Ukraine,” Demokratizatsiya: the Journal of Post-Soviet Democratization, 18:2 (Spring 2010), 122-147.


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