As Ukraine is entering the main phase of the selection of judges for the anti-corruption court, the prospects of the long-anticipated new court look bleak.
First, there are accusations that legal knowledge tests, which were taken by candidates for the court on Nov. 12, could have been manipulated in favor of government-friendly candidates.
Second, some candidates with a tainted record turned out to be at the top of the ranking.
Third, the Anti-Corruption Action Center, a watchdog non-profit monitoring the justice reform, said on Nov. 16 that nothing had been prepared for the work of the foreign expert panel intended to help in the court’s selection.
The body in charge of the court’s selection, the High Qualification Commission of Judges, did not respond to a request for comment. Previously it has denied the accusations of wrongdoing.
The new anti-graft court is the final link in the chain of anti-corruption agencies started after the 2013-2014 EuroMaidan Revolution. With its launch, cases against corrupt officials will no more land in the regular courts, and might have a better chance for a fair hearing.
The court has to be launched before June 2019.
But even if the court finally gets going, there is a broken link in the anti-corruption infrastructure that endangers its success. The Anti-Corruption Action Center on Nov. 15 published an online register of graft cases that it says are being obstructed by Chief Anti-Corruption Prosecutor Nazar Kholodnytsky’s office. Kholodnytsky has denied the accusations and said he was ready to discuss the cases.
Selection of judges
Candidates for the High Anti-Corruption Court and the Supreme Court took legal knowledge tests on Nov. 12.
However, many of the test questions had more than one correct answer, Vitaly Tytych, coordinator of the Public Integrity Council, and Judge Mykhailo Slobodin said. Thus the commission had an opportunity to promote some candidates by telling them which answers it deems right, according to Tytych, who was a candidate for the Supreme Court but did not pass to the next stage.
He said that he had requested his test results from the High Qualification Commission, and – if the commission refuses to submit them – it would be the ultimate proof of manipulations.
Some controversial and politically connected candidates turned out to be at the top of the ranking.
One of them, Viktoria Zhovnovatyuk, is the wife of Oleksiy Zhovnovatyuk, an aide to Ruslan Solvar, a lawmaker from President Petro Poroshenko’s Bloc. Zhovnovatyuk argued that her relatives and acquiantances do not affect her court rulings and she “doesn’t play political games.”
Another candidate who passed to the next stage is Tetiana Demchyna, the former wife of Security Service of Ukraine Deputy Chief Pavlo Demchyna. She ranks at the top of the ranking for appellate jobs at the court.
Lawyer Dmytro Yagunov, who is also running in the competition, used to be an advisor to presidential Deputy Chief of Staff Oleksiy Filatov.
Three candidates who successfully passed the legal knowledge tests for the anti-corruption court had been previously vetoed by the Public Integrity Council over alleged violations of ethics and integrity standards – Oleh Kimstachyov, Petro Burda and Yuriy Krutiy. They deny the accusations of wrongdoing.
Burda has untrue information in his asset declaration, according to the watchdog. He was fired in 2007 for alleged legal violations, although he was later reinstated.
Meanwhile, Krutiy has banned journalists from court hearings.
Kimstachyov was vetoed because one court case has been unlawfully allocated to him, according to an audit of the State Judicial Administration. The Public Integrity Council also said he had considered another case that he didn’t have a right to consider under the law and that he had been reprimanded for missing a deadline.
Yet another candidate for the anti-corruption court, Taras Zayets, is accused of unlawfully trying EuroMaidan activists. He denies the accusations.
Unprepared
Anastasia Krasnosilska from the Anti-Corruption Action Center on Nov. 16 said that the situation with the anti-corruption court was “very bad,” and nothing had been prepared for the work of the Public Council of International Experts (PCIE), a foreign expert panel that will help in the court’s selection.
Moreover, no money has been allocated to fund the PCIE, Krasnosilska said. Neither have the authorities ensured the PCIE will have access to candidates’ personal data and profiles, government registers, or the results of their practical examinations, she added.
“(High Qualification Commission Chairman Serhiy) Kozyakov’s favorite tactics is to initiate some process that ultimately yields no results,” Krasnosilska said.
The commission told the Kyiv Post that the PCIE would get access to High Qualification Commission materials “taking into account restrictions set by Ukrainian law.” It is not clear if these materials will include candidates’ personal data and their practical exam results.
The High Qualification Commission has rejected PCIE nominees whose anti-corruption record and knowledge of Ukraine are well-known. Instead, the commission on Nov. 7 appointed little-known candidates whose ability to ensure the selection of a genuinely independent court is unclear.
The members of the PCIE have not yet arrived in Ukraine.
The High Qualification Commission is planning to announce the results of the practical examinations for the anti-corruption court on Nov. 26, Krasnosilska said. The practical examinations were held on Nov. 14.
By quickly announcing the results of practical exams, the commission is trying to prevent the PCIE from assessing these results and from doing their work within the 30-day deadline set by the law, Krasnosilska said.
“(The High Qualification Commission of Judges) hopes that the PCIE won’t tell them ‘it’s all bullshit, lies and manipulation’,” she added.
She said that the commission expected the PCIE to veto only a few “bad” candidates and allow it to appoint many dark horse candidates – politically loyal lawyers and judges without an obvious record of corruption and wrongdoing.
To resolve this problem, the PCIE should veto all candidates except for those with the best experience, skills and integrity, Tytych argued. To do that, the PCIE must assess practical exam results and candidates’ court decisions and legal opinions, he said.
Kholodnytsky problem
As the problems with the anti-corruption court remain unresolved, another obstacle to the court’s work is still in place: Chief Anti-Corruption Prosecutor Kholodnytsky, anti-graft activists say.
The online register of corruption cases blocked by Kholodnytsky and published by the Anti-Corruption Action Center includes those against Interior Minister Arsen Avakov’s son Oleksandr, Vishneve Mayor Ilya Dikov, General Pavlo Tkachuk, ex-State Aviation Service Chief Denys Antonyuk, executives of tycoon Dmytro Firtash’s Zaporizhzhia Titanium and Magnesium Plant and People’s Front party lawmaker Georgy Logvynsky. Others include State Health Inspection Service Chief Svyatoslav Protas; ex-Central Election Commission Chairman Mykhailo Okhensovsky; Arsen Isaakyan, head of the State Innovative Finance and Credit Institution, and Natalia Korchak, head of the National Agency for Preventing Corruption.
Another corruption case allegedly blocked by Kholodnytsky’s office concerns an oil product supply scheme run by fugitive tycoon Serhiy Kurchenko, an ally of ex-President Viktor Yanukovych.
In 2017 the Prosecutor General’s Office said Hr 800 million ($32 million) had been confiscated as part of the scheme.
People’s Front lawmaker Serhiy Pashynsky and his associate Serhiy Tyshchenko have been investigated over the alleged theft of the oil products when they were frozen. However, the case against Pashynsky and Tyshchenko, who deny the accusations, has seen no progress, and they have faced no charges.
Since much of the money was stolen, only Hr 102 million ($4 million) remained and was transferred to Fortuna Bank, said Daria Kaleniuk, executive director of the Anti-Corruption Action Center.
The National Anti-Corruption Bureau of Ukraine (NABU) requested the case in 2016 but Kholodnytsky’s office did not allow the bureau to investigate it and transferred it to the police.
The NABU is also investigating Andriy Pavelko, head of parliament’s budget committee and the president of the Ukrainian Football Federation, over alleged unlawful enrichment and falsifying an asset declaration.
Kholodnytsky, who is also a vice president of the Ukrainian Football Federation, defended Pavelko in a Nov. 18 comment for ICTV, saying that no budget money had been spent by the federation. The Anti-Corruption Action Center believes that Kholodnytsky’s ties to Pavelko through the football federation constitute a conflict of interest.
The watchdog also mentioned the case against Security Service of Ukraine Deputy Chief Pavlo Demchyna. The NABU suspects Demchyna of unlawful enrichment, as the expenses of the official and his family exceeded their income by Hr 3.8 million ($106,895) in 2015 to 2016. Demchyna denies the accusations.
In September the anti-corruption prosecutor’s office refused to authorize the NABU’s notice of suspicion against Demchyna, claiming that the notice had been poorly drafted.
Kholodnytsky has been investigated by the NABU over recordings in which he is heard pressuring anti-corruption prosecutors and courts to stall cases, urging a witness to give false testimony, and tipping off suspects about future searches. He confirmed that the tapes were authentic but said they had been taken out of context and denied the accusations of wrongdoing.
“There are two ways out. Either (Prosecutor General Yuriy) Lutsenko will sign a notice of suspicion for Kholodnytsky, and Kholodnytsky’s powers can be suspended by a court,” said Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board. “Or parliament will vote for replacing the leadership of the anti-corruption prosecutor’s office.”
