Illegal seizure of the premises of the Supreme Court of Ukraine jeopardizes its administration of justice
UNOFFICIAL TRANSLATION
The President of the Supreme Court of Ukraine emphasized this during the press conference held on 28 October 2010.
Vasyl Onopenko is convinced that Regulation of the Cabinet of Ministers of Ukraine on the seizure of two administrative buildings in Pylypa Orlyka street 4 and 4-a from the Supreme Court of Ukraine and their transfer to the newly created High Specialized Court for Civil and Criminal Cases is not based on the Constitution and laws of Ukraine. It is juridically and practically unfounded and its implementation jeopardizes execution of its powers by the Supreme Court of Ukraine, and, as a result, administration of justice in Ukraine in general.
The President of the Supreme Court of Ukraine underlined that nobody eliminated the Supreme Court of Ukraine and abolished its constitutional status as the highest judicial body. Even with the substantial reduction of functions the present powers of the Supreme Court of Ukraine include appropriate revision of judicial cases. For the present, there are about 37 thousand of pending civil and criminal cases, which arrived on the basis of the “old” procedural law. Moreover, the Supreme Court of Ukraine has started to consider cases according to the new procedural rules.
However, as a result of the illegal decision of the Cabinet of Ministers of Ukraine the constitutional operation of the Supreme Court of Ukraine on its administration of justice may be blocked. Vasyl Onopenko stressed that the way the Supreme Court of Ukraine is treated is a very disturbing signal for the society: if one illegitimately dispossesses premises from the highest judicial body, that is the evidence that no one in the country is secured from the same thing and that the proprietary right of citizens and legal entities is not guaranteed by state.
The President of the Supreme Court of Ukraine considers these actions of the Cabinet of Ministers as the first sign that Ukraine, represented by its Government, does not wish to execute the recommendations of the Venice Commission, which clearly mention the necessity to return the Supreme Court of Ukraine the status inherent to the highest judicial body. According to the Opinion of this authoritative international institution, what has been done in Ukraine has no analogue in Europe, does not meet the international and legal standards and will have an absolutely negative impact on justice in the state.
Vasyl Onopenko expressed his convictions that Ukraine will obviously have to correct its mistake. Life itself will force to enlarge powers of the Supreme Court of Ukraine and make it a judicial body of full value. However, after the seizure of its premises there will be no material and technical conditions to do this.
Dwelling on the legal aspect of the problem, the President of the Supreme Court of Ukraine stated that it was technically generated by the legislator, which in Transitional provisions of the Law “On the Judiciary and the Status of Judges” bound the Cabinet of Ministers of Ukraine “to ensure the placement of the High Specialized Court for Civil and Criminal Cases in administrative premises, where as of the day when the Law came into force the Judicial Chamber on Civil Cases and the Judicial Chamber on Criminal Cases were accommodated”, thus, actually, by changing the signboard on the premises.
The authors of the Law must have expected that the new higher court would be created mainly by way of transiting judges of the Judicial Chambers on civil and criminal cases of the Supreme Court of Ukraine. But as Vasyl Onopenko informed the journalists, this did not happen. The fact that only two judges of the Supreme Court of Ukraine have moved to the newly created high court is very significant.
It is practically impossible to squeeze 120 judges of the high court and 450 employees of its stuff into 50 or even 70 rooms. That is, the Law envisages such decision of the issue that neither of the courts will be able to properly operate under such conditions.
But as emphasized by the President of the Supreme Court of Ukraine, the Cabinet of Ministers of Ukraine went further. It has roughly ignored the relevant provision of the Law “On the Judiciary and the Status of Judges”, as well as other laws, and made a decision not to accommodate the high specialized court in a part of the building in Pylypa Orlyka street, 4-a as provided by the Law, but to transfer the whole two administrative buildings of the Supreme Court of Ukraine in Pylypa Orlyka street, 4 and 4-a to the High Specialized Court for Civil and Criminal Cases for operational management.
Vasyl Onopenko stressed that from a legal point of view this decision will not withstand any criticism. It is contrary to the Constitution and laws of Ukraine, because the Law clearly divides the notion of “accommodation” and “transfer for operational management”. Office building in Pylypa Orlyka street, 4-a is assigned to the Supreme Court of Ukraine on grounds of the right of operational management according to the Regulation No.133-r of the Cabinet of Ministers of Ukraine of 3 March 1995. The building in Pylypa Orlyka street, 4 is assigned according to the Regulation No. 1280-r of the Council of Ministers of the Ukrainian SSR of 16 November 1957.
According to Article 137 of the Commercial Code, the owner of the property assigned to another person on grounds of the right of operational management has the right to seize from this person only surplus property, as well as property that is not in use and property that is used for other purposes. Today none of these grounds regarding the premises of the Supreme Court of Ukraine is legally specified.
In addition, administrative buildings seized from the Supreme Court of Ukraine are located on the land that, as prescribed by the law, is provided for permanent use of the Supreme Court of Ukraine that is certified by relevant state regulations. At the same time, Article 152 of the Land Code of Ukraine places protection of the rights of land users on the same level with protection of the rights of land owners.
Thus, as concluded by the President of the Supreme Court of Ukraine, it is impossible to determine, on what legal grounds the high specialized court should be placed in the premises attached to the Supreme Court of Ukraine by right of operational management, and on what legal basis the Cabinet of Ministers of Ukraine has seized two administrative buildings from the Supreme Court of Ukraine.
Vasyl Onopenko noted that such approach of the Government has resulted in artificial conflict between the Supreme Court of Ukraine and the High Specialized Court for Civil and Criminal Cases, as well as between the judicial and the executive panches of power, that in principle is inadmissible.
The President of the Supreme Court is confident that solution of the issue of the new high specialized court accommodation requires a responsible and statist approach. It is necessary to lawfully provide conditions for its operation, without limiting legal rights of the Supreme Court of Ukraine and its judges.
According to the opinion of the President of the Supreme Court of Ukraine, there are a few legal variants to protect lawful rights of the Supreme Court of Ukraine and its judges. The first one is to go to court. Vasyl Onopenko informed the reporters that the Supreme Court of Ukraine, considering that the Regulation of the Cabinet of Ministers of Ukraine was adopted violating the effective legislation, will address the Kyiv District Administrative Court with a claim against the Cabinet of Ministers of Ukraine on the recognition of its Regulation as illegal and its abolishment. Relevant claim has been already prepared. The second variant is the abolition of this Regulation of the Cabinet of Ministers of Ukraine by the President of Ukraine as such that contradicts the Constitution and laws of Ukraine. For this reason the President of the Supreme Court of Ukraine intends to meet with the President of Ukraine. Vasyl Onopenko also does not exclude addressing the international institutions, which monitor Ukraine’s meeting of international commitments, especially on strengthening of an independent and fair court.
Answering the question regarding his vision of implementation of the mentioned Regulation of the Cabinet of Ministers of Ukraine, if it is not abolished or recognized illegal by the court, Mr Onopenko said that he did not imagine, how in a legal way, without violation of law one could execute the Regulation of the Cabinet of Ministers of Ukraine. Herewith, he stated that under no circumstances should the working conditions be worsened and the activity of the Supreme Court of Ukraine be blocked. Guarantees prescribed by law to judges of the Supreme Court of Ukraine, in particular regarding provision with proper conditions for administration of justice, should be steadily followed. Their non-observance is the interference with the administration of justice, and obstruction of court operation.
The President of the Supreme Court of Ukraine is convinced that a constructive way out of this situation is to urgently find other premises for the High Specialized Court for Civil and Criminal cases that would properly meet its accommodation needs. Mr Onopenko emphasized that one can find such premises if he or she wants. In this regard, the beginning of operation of the mentioned high specialized court should be postponed and the Law “On the Judiciary and the Status of Judges” should be relevantly amended.
During the press-conference, the President of the Supreme Court of Ukraine also responded to numerous other questions.
Financial support: Swiss Confederation