Ukraine’s whole anti-corruption infrastructure and judicial reform are now coming under attack from pro-oligarch and pro-Russian forces, according to participants of “Ukraine’s judiciary’s and anti-corruption in peril.” an online panel held by German think tank Center for Liberal Modernity on Sept. 23.
This full-frontal assault may disrupt lending from the International Monetary Fund and even lead to the suspension of the visa-free regime.
Based on a Sept. 16 ruling by the Constitutional Court, the Verkhovna Rada may pass a law that would destroy the independence of the National Anti-Corruption Bureau of Ukraine (NABU).
Moreover, the Verkhovna Rada on Sept. 17 appointed a controversial commission that is likely to choose a dependent chief anti-corruption prosecutor, which would eliminate the independence of his office (SAPO).
The Constitutional Court is also considering a motion by lawmakers to liquidate the High Anti-Corruption Court as unconstitutional. The court itself has come under fire for closing a number of high-profile corruption cases recently.
Meanwhile, judicial reform has been blocked continuously since President Volodymyr Zelensky took office in May 2019. The President’s Office has recently also drafted a new judicial reform bill but it does not comply with IMF conditions.
The President’s Office did not respond to requests for comment.
“During the last half a year we noticed an abrupt change of the mood in government not just in terms of anti-corruption but in general,” Tetiana Shevchuk, an expert at the Anti-Corruption Action Center, said at the panel. “We’ve seen not the support of anti-corruption bodies but attempts to put them under political control. During the last months, we’ve seen a big attack on NABU and SAPO.”
Dmytro Solohub, a deputy head of the National Bank of Ukraine, said on Sept. 24 Ukraine had lost the opportunity to get two IMF tranches before the end of 2020 and would try to get just one. Ukraine’s current IMF program is worth $5 billion, with $2.1 billion already lent, and it’s not clear what the size of the individual tranches will be.
The European Union’s High Representative for Foreign Policy Josep Borrell Fontelles said on Sept. 22 that Ukraine currently complies with the conditions of the visa-free regime. But its further compliance will depend on whether anti-corruption institutions and other law enforcement bodies are independent and effective, he added.
Attack by oligarchs
Anastasia Radina, head of the Rada’s anti-corruption committee, said at the panel that “untouchable people are not happy about (anti-graft institutions) and are fighting back as strongly as they can” and that “the anti-corruption infrastructure is as endangered as it has ever been in Ukraine.”
“Some Ukrainian oligarchs have allied with pro-Russian forces in attacking anti-corruption institutions,” she said. “They want their impunity to be secured. If they succeed in attacking anti-corruption institutions, this will break Ukraine away from the civilized world and this will contribute to Ukraine drifting into the hands of the Russian Federation.”
Yaroslav Yurchyshyn, a lawmaker from the Voice faction, said that the “previous government”, when Zelensky’s Chief of Staff Andriy Bohdan and Prime Minister Oleksiy Honcharuk were in power, had been pro-Western, although it had not been always professional.
“Now we have a totally pro-Russian and pro-oligarch government,” he said. “(Zelensky’s Chief of Staff Andriy) Yermak is a quite pro-Russian and very corrupt politician. Because he has huge influence on Zelensky, we have many problems in the sphere of fighting corruption and the sphere of fighting Russia.”
Earlier, the NABU investigated reports of abuse of power and bribery after leaked videos implicated Yermak and his brother Denys in attempting to sell government jobs. The videos showed Denys Yermak discussing the sale of the jobs.
The Yermak brothers have not denied the authenticity of the videos, but Denys Yermak claimed they were taken out of context and denied accusations of wrongdoing.
NABU
On Aug. 28, the Constitutional Court ruled that then-President Petro Poroshenko’s 2015 decree to appoint Artem Sytnyk as head of the NABU was unconstitutional. On Sept. 16, the Constitutional Court also ruled that some clauses of the law on the NABU were unconstitutional. Although the decision ostensibly seeks to restrict the president’s powers in appointing the NABU’s head, experts say it may have the opposite effect.
There are fears that Zelensky’s majority in the Verkhovna Rada will change the law in order to fire Sytnyk and appoint a Zelensky loyalist who will block cases against top incumbent officials.
“The Constitutional Court cannot review individual appointments. It was an unprecedented move,” Shevchuk said. “We see this as a political decision because the writing of the ruling is so unclear that it puts the bureau in a kind of legal limbo.”
She said that “nobody knows what to do” with the ruling and civil society “is waiting for this political decision of the Rada, which could be very dangerous.”
“Either the procedure for nominating the director will be politicized or an acting director without any integrity or professionalism criteria will be chosen,” Shevchuk said. “The body which is legally independent would be under effective political control.”
She cited the example of the State Investigation Bureau, whose head Roman Truba was fired in 2019. So far, no competition has been held for a new head, and acting heads have been appointed to oversee the bureau.
“If the NABU comes under political control, it can become an instrument of political persecution of enemies of the ruling party,” Shevchuk said.
Radina said that, if the Rada fired Sytnyk before his term expires in 2022, “we will be accused of a political attack on the NABU, which I would like to avoid.”
SAPO
The Verkhovna Rada also dealt another blow to anti-corruption institutions on Sept. 17. Parliament appointed seven controversial figures to a commission that will choose a new chief anti-corruption prosecutor to replace Nazar Kholodnytsky, who resigned in August.
Such a commission is likely to choose a loyalist of the current authorities who will be able to block NABU investigations against top incumbent officials, according to civic activists.
The Anti-Corruption Action Center argued that their selection violates the law, which requires them to have an impeccable reputation and moral qualities. The center also said the appointees have little genuine experience in the anti-corruption sphere. The commission members denied the accusations.
Shevchuk said that, after Kholodnytsky resigned in August, now his office is under the effective control of Prosecutor General Iryna Venediktova. The acting chief anti-corruption prosecutor is Maksym Hryshchuk.
“Venediktova is not an independent figure, she is very dependent on the Office of the President and eager to follow their commands,” she said. “Effectively SAPO is under the indirect control of the President’s Office at the moment.”
She also said that the commission chosen by the Rada would choose “somebody who was pre-selected by the Office of the President.”
“There is a rumor that Yermak wants to see his good friend Andriy Kostin as head of SAPO, and he would be a total political appointee,” Shevchuk said.
Yermak and Kostin did not respond to requests for comment on the issue.
Radina also voiced concerns about the issue, saying that “some expected winners of the competition have been already voiced, although the competition has not even started.”
Judicial reform
Several sources also told the Kyiv Post that the President’s Office had drafted a new judicial reform bill in September on cleansing the High Council of Justice. The sources spoke on condition of anonymity because the information is confidential.
According to Ukraine’s memorandum with the IMF, Ukraine was supposed to create a commission including foreign experts in order to fire tainted members of the High Council of Justice if they violate ethics and integrity standards. The IMF deadline for the bill is the end of October.
In its current state, the new bill does not comply with IMF conditions: the High Council of Justice would have full control over its own cleansing, and foreign experts would have a minimal role and would not be able to influence anything, according to the sources. The draft could be changed in the future, however.
Zelensky’s first judicial reform bill was signed into law in 2019 with the ostensible aim of firing tainted judges and creating credible judicial institutions. However, two bodies tasked with cleansing the judiciary had not been created by the deadline set under the law for February, and the attempt failed.
In June President Volodymyr Zelensky submitted another bill on judicial reform to the Verkhovna Rada. But legal experts and anti-corruption activists lambasted the bill, saying it would not lead to any real reform.
The September bill is the Zelensky administration’s third attempt at judicial reform.
