Ukraine’s legal system is approaching chaos due to several newly-adopted measures, lawyers and civic activists argue.
First, President Petro Poroshenko’s decrees to liquidate most of Ukraine’s about 700 courts in December may wreak havoc in the judiciary and lead to the collapse of criminal cases.
Second, the new Supreme Court launched in December appears to be mired in corruption scandals and implicated in political ties in the same way as the previous one.
Third, procedural code amendments signed by Poroshenko in November may make it impossible to investigate high-profile cases.
Poroshenko describes the changes as a Western-oriented reform to overhaul and cleanse the judiciary, while his critics see the actions as an effort to establish complete control over the courts and make sure that incumbent and former top officials escape punishment.
Anti-corruption court
To find a way out of the impasse, Ukraine’s civil society and its Western partners have pushed for the creation of an independent and impartial anti-corruption court.
In December Poroshenko submitted a bill to create it, but non-governmental organizations, the World Bank and the International Monetary Fund criticized it earlier this month, saying it does not guarantee the selection of independent judges. The European Union also criticized the bill, saying that it was at odds with the conditions of Ukraine’s visa-free regime with Europe and thus hinting that it could be suspended.
Vitaly Tytych, a member of the Public Integrity Council, a judicial watchdog, argued that Poroshenko is trying to deceive Ukraine’s Western partners.
“There’s some serious horse-trading going on,” he told the Kyiv Post. “The National Anti-Corruption Bureau of Ukraine is causing such a panic (among top officials), and the absence of a court that could complete its cases calms them down. Billions of dollars (in corrupt cash flows) are at stake.”
The key task is to make sure that a transparent competition for the anti-graft court is held – in contrast to last year’s Supreme Court competition, when the High Qualification Commission arbitrarily awarded higher scores to loyalists without considering the Public Integrity Council’s opinion and having any comprehensible methodology, Tytych said. The commission denied the accusations.
The IMF and the World Bank said that people nominated by Ukraine’s foreign partners and donors should have a crucial role in approving the appointment of anti-graft judges, rather than just an advisory one, like in Poroshenko’s bill.
The World Bank and the IMF also argued that the conditions for becoming a judge of the anti-corruption court are so strict that it will be almost impossible to find candidates.
The World Bank and IMF said that the number of anti-corruption judges should be set by the law, not by the discredited State Judicial Administration. Zenovy Kholodnyuk, current head of the State Judicial Administration, must be fired under the lustration law on the dismissal of top officials who served ex-President Viktor Yanukovych but is still on his job.
Poroshenko’s bill requires the passing of an additional bill to launch the anti-corruption court, which would slow down the process. The World Bank and IMF said that there is no need for an additional bill, and the court should be launched by the first one.
Discredited commission
Under Poroshenko’s bill, judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice. However, both bodies have been discredited and accused of appointing corrupt judges and political loyalists to the Supreme Court and other courts, although they deny the accusations.
Under Poroshenko’s bill, the High Qualification Commission can override a veto by foreign partners on anti-corruption judges.
The commission has been accused of being under the control of Poroshenko and allies of Yanukovych – a charge that it denies.
Serhiy Kozyakov, head of the High Qualification Commission, was appointed by the Justice Ministry, which is controlled by the People’s Front party. He has also previously worked as an adviser to Poroshenko.
Commission member Pavlo Lutsyuk has worked with pro-Russian politician Viktor Medvedchuk as a top official of the Ukrainian Lawyers’ Association and is considered to be his protege, although he denies the accusations. Yuriy Titov is reportedly an associate of Serhiy Kivalov, a former Yanukovych ally implicated in the attempt to steal the 2004 presidential election, triggering the Orange Revolution that brought Viktor Yushchenko to power.
Ten of the commission’s 15 members represent the judicial old Soviet guard, having worked at state agencies since the 1980s. Five of the commission’s members started their careers in the Donbas, home base of Yanukovych’s clan, while two of its members come from Vinnytsya, Poroshenko’s political base.
Supreme Court
The new Supreme Court launched by the High Qualification Commission and the High Council of Justice in December comprises many judges who have links to politicians.
Bohdan Lvov, the new Supreme Court’s deputy chief and head of its commercial chamber, used to work with High Council of Justice chairman Ihor Benedysyuk, a presidential appointee, at the High Commercial Court and at military courts.
In January 2017 Borys Hulko, now head of the Supreme Court’s civil cases chamber, was filmed walking out of the Presidential Administration by Radio Liberty.
Hulko and Lvov were also filmed in August by Radio Liberty at a birthday party of Valery Heletei, who heads Poroshenko’s security guards.
New Supreme Court Judge Oleksandr Yemets’ wife is a regional lawmaker from the Poroshenko Bloc, while Supreme Court Judge Serhiy Zhukov ran as a Poroshenko Bloc candidate in the Dnipro City Council election in 2015.
Yan Bernazyuk, also a Supreme Court judge, used to be an official of ex-Prime Minister Arseniy Yatsenyuk’s Front Zmin party and an aide to lawmaker Ruslan Knyazevych from the Poroshenko Bloc.
Supreme Court judges Ivan Mishchenko, Vyacheslav Peskov and Anna Vronskaya used to work at the Vasyl Kysyl and Partners law firm, where Poroshenko’s Deputy Chief of Staff Filatov was one of the partners. Mishchenko was filmed by Radio Liberty visiting the Presidential Administration on Nov. 29.
New Supreme Court judge Yevhen Synelnykov is an assistant to Vladyslav Holub, a lawmaker from the Poroshenko Bloc. Ihor Tkach, another Supreme Court judge, used to work at Proksen, a firm headed by High Qualification Commission head Kozyakov.
Meanwhile, 30 discredited judges deemed corrupt or dishonest by the Public Integrity Council were nominated for the Supreme Court by the High Qualification Commission in July, and 29 of them were approved by the High Council of Justice in September to December. Poroshenko has already appointed 27 of them to the Supreme Court.
High Qualification Commission Chief Serhiy Kozyakov denies charges of rigging the competition for the new Supreme Court. (Courtesy)
Liquidation of courts
Like the Supreme Court, lower-level courts also risk becoming even more politicized than they are now.
According to Poroshenko’s Dec. 29 decrees, about 600 lower-level common-jurisdiction courts will be replaced with about 300 ones, and 27 lower-level commercial courts will be replaced with 27 new ones. Moreover, 44 courts of appeal will be liquidated and replaced with 41 new ones.
However, lower-level administrative courts were not liquidated. Tytych attributed this to the fact that Pavlo Vovk, head of the Kyiv Administrative District Court and a reported protégé of Poroshenko’s ally and lawmaker Oleksandr Hranovsky, and other administrative court judges are loyal to the authorities.
The president has portrayed the liquidation of courts as part of the judicial reform aimed at cleansing the court system.
Judges of the existing courts are expected to be vetted by the High Qualification Commission and to be re-appointed to new courts, and competitions will be held by the commission for new jobs at the newly-established courts. The commission, which has shown its dependence from the authorities, is likely to favor government loyalists and thus create courts controlled by Poroshenko, Public Integrity Council members Mykhailo Zhernakov and Vitaly Tytych told the Kyiv Post.
Another problem is that the newly-created courts will have to start existing cases from scratch, which could lead to the collapse of high-profile corruption cases, investigations into the murder of more than 100 EuroMaidan protesters and many other cases. The Presidential Administration has argued that this will not obstruct cases because existing courts will function until new ones are created, and a special bill will be passed to allow new courts to continue old cases.
“There’s a legal vacuum now,” lawyer Markiyan Halabala told the Kyiv Post. “In many cases such delays play into the hands of defendants. Moreover, there are high risks of corruption during competitions (for new courts).”
As a result of the liquidation, Poroshenko may also try to increase his control over Kyiv’s two most important courts.
Kyiv’s Solomyansky Court, which considers NABU cases, and the Svyatoshynsky Court will be merged. As a result, the new court could be used to control or obstruct the NABU.
Poroshenko may also benefit from the liquidation of Kyiv’s Pechersk Court, which considers cases of the Prosecutor General’s Office, and the Kyiv Court of Appeal by creating more loyal courts instead of them, ex-Georgian President Mikheil Saakashvili has claimed. In December Pechersk Court judge Larysa Tsokol ruled against the authorities by releasing Saakashvili from custody in a criminal case, while the Kyiv Court of Appeal is currently considering placing him under house arrest.
The restructuring may also paralyze the court system by increasing the number of cases per judge. Currently, judges are already overloaded with cases.
Blocked investigations
Like the liquidation of courts, the procedural code amendments signed by Poroshenko in November will make it much more difficult to investigate corruption and other cases, Reanimation Package of Reform experts and Public Integrity Council members believe.
The amendments will block criminal cases by requiring that notices of suspicion should be filed within one-and-a-half years after the opening of a case for grave crimes, and within one year for crimes of medium severity, lawyers say. Cases should be sent to trial within two months after a notice of suspicion is filed, according to the amendments.
Sergii Gorbatuk, head of the in absentia cases unit at the Prosecutor General’s Office, said that if they are applied to already-open cases, the amendments may lead to the closure of ongoing cases into the murder of more than 100 EuroMaidan protesters, corruption cases and other high-profile investigations.
According to the amendments, cases can also be blocked through appeals against notices of suspicion.
The amendments also give state experts a monopoly on forensic examinations, and only a court will be able to authorize a forensic assessment. Anti-corruption activist Vitaly Shabunin argued that this clause would allow the authorities to control and block forensic assessments.
