See related stories here and here.
The competition to select new judges for the Supreme Court should have been the watershed in Ukraine’s post-revolutionary transformation from corrupt post-Soviet oligarchy to Western-oriented democracy.
Instead, when the High Council of Justice on Sept. 29 appointed 111 new judges of the Supreme Court, many saw it as the culmination of a failed process, sabotaged by the old guard, that leaves the judiciary largely unchanged.
Public discontent with the country’s corrupt judiciary is building, as courts fail to punish top-level crime and continue to cave in to pressure from the authorities in political cases.
Recently, pro-Russian protesters in Odesa, a Berkut riot police officer charged with assaulting EuroMaidan protesters and ex-Sloviansk Mayor Nelya Shtepa, who is on trial for allegedly cooperating with Russian-backed separatists, were released from custody.
And in a surreal situation on Sept. 21, the National Anti-Corruption Bureau of Ukraine charged two judges for trying to bribe a prosecutor who was prosecuting another judge for bribery.
“We’re close to a new revolution… Every day we have news that provoke society to blow up again,” Samopomich Party lawmaker Yehor Soboliev said. “Three years after the EuroMaidan, society can’t see any justice for top-level corruption. Society now receives much more information about corruption. You can see how you’re robbed every day by top officials, but don’t see any consequences of this disclosure.”
The authorities argue that the Supreme Court competition is the most transparent and effective one in Ukrainian history and will bring good and professional judges.
However, the Public Integrity Council, a civil-society watchdog, says that 30 of the 120 Supreme Court candidates nominated by the High Qualification Commission do not meet ethical standards, cannot account for their assets or have participated in political cases in the past.
The 30 candidates were vetoed by the Public Integrity Council, but the High Qualification Commission and the High Council of Justice ignored the council’s objections. The High Council of Justice on Sept. 29 appointed 25 of the vetoed candidates as Supreme Court judges.
Moreover, many members of the High Council of Justice and many of the Supreme Court nominees have been accused of having compromising political connections.
Presidential council?
The High Council of Justice is accused of being dominated by President Petro Poroshenko, who denies the accusations. However, links between its members and the president are many and varied.
Ihor Benedysyuk, the chairman of the council, was appointed by Poroshenko and used to work for the military court system, subservient to the military leadership.
Another council member, Tetiana Malashenkova, was also appointed by Poroshenko and used to work for Ukrprominvest group, formerly owned by Poroshenko.
High Council of Justice members Vadym Nezhura and Volodymyr Komkov were delegated by the Conference of Prosecutors, which is effectively controlled by the president.
Oleksiy Malovatsky, a council member nominated by the Poroshenko Bloc and delegated by the Verkhovna Rada, worked as a lawyer for Poroshenko in 2014.
Vadym Belyanevych, another council member, used to work at Vasil Kisil & Partners, a firm co-founded by Poroshenko’s Deputy Chief of Staff Oleksiy Filatov. He has requested to be exempted from voting for judges who used to work at this firm due to a conflict of interest, but the High Council of Justice rejected the request.
At least two members of the council are linked to the People’s Front party. Iryna Mamontova was nominated by the People’s Front party and delegated by the Verkhovna Rada.
Council member Pavlo Grechkivsky used to be a lawyer for Mykola Martynenko, an ex-People’s Front lawmaker and a suspect in a graft case, and his brother-in-law.
It has also been alleged that Grechkivsky is linked to Poroshenko Bloc parliamentarian Ihor Kononenko, since they were both lawmakers of Kyiv Mayor Leonid Chernovetsky’s party. However, Grechkivsky denies having links to Kononenko.
Yaroslav Romanyuk, a member of the High Council of Justice and chairman of the current Supreme Court, is believed to be a protege of ex-President Viktor Yanukovych and his deputy chief of staff Andriy Portnov. Romanyuk supported Yanukovych’s dictatorial laws of Jan. 16, 2014, which severely curtailed civil liberties.
Council member Alla Lesko was delegated by the Congress of Lawyers.
She has been accused of being linked to pro-Russian politician Viktor Medvedchuk and Portnov, who wielded major influence on Ukraine’s lawyer community. Medvedchuk used to be the head of the Ukrainian Lawyers’ Association, and his protégés have held key positions there. Lesko told the Kyiv Post that the accusations were “a mere assumption that does not require refutation.”
Candidates’ connections
Some of those appointed to the Supreme Court are accused of compromising links to political leaders.
Bohdan Lvov, a new judge of the Supreme Court and chairman of the High Commercial Court, used to work with High Council of Justice Chairman Benedysyuk, a presidential ally, at the High Commercial Court and at military courts. Benedesyuk has requested to be exempted from voting for Lvov due to a conflict of interest.
Lawyer Yevhen Synelnykov, who was also appointed to the Supreme Court, is an assistant to Vladyslav Holub, a lawmaker from the Poroshenko Bloc.
Lawyers Ivan Myshchenko, Vyacheslav Peskov and Anna Vronskaya, who became Supreme Court judges, used to work at the Vasyl Kisil and Partners law firm, where Poroshenko’s Deputy Chief of Staff Filatov was one of the partners. Vronskaya denied having links to Filatov, saying she worked at the firm at a different time.
Filatov has denied having any influence on them.
New Supreme Court judge Borys Hulko, the chairman of the High Specialized Court for Civil and Criminal Cases, has also been accused of having political connections. Hulko’s wife Tetyana Kryzhanivska works at the BIM law firm, which is co-owned by the Ukrainian Lawyers’ Association, founded by Medvedchuk. BIM, the Ukrainian Lawyers’ Association and Medvedchuk’s pro-Russian Ukrainian Choice party are all registered at the same address. Hulko denied having any ties to Medvedchuk over the past “15 to 20 years.”
In January, Hulko was filmed walking out of the Presidential Administration by Radio Liberty, saying that he had discussed procedural codes.
Meanwhile, lawyer and newly-appointed Supreme Court judge Ihor Tkach used to work at Proksen, a firm co-founded and headed by Serhiy Kozyakov, head of the High Qualification Commission. Kostyantyn Krasovsky, head of the Presidential Administration’s legal department, also used to work with Tkach and Kozyakov at Proksen.
Another new Supreme Court judge, Yan Bernazyuk, has held several jobs under the leadership of ex-Prime Minister Arseniy Yatsenyuk.
In August, some of the newly-appointed Supreme Court judges were filmed by Radio Liberty at the birthday party of Valery Heletei, who heads the presidential security guard detachment. They included Lvov and Hulko, as well as High Council of Justice member Romanyuk.
Ukraine’s judicial reform removes a layer of courts – from four to three levels. The three levels are: courts of first instance, three appellate courts and then the Supreme Court’s Grand Chamber, subdivided into four specialities – the highest appeals, or so-called third instance, courts.
30 bad apples
Apart from their political connections, a major bone of contention was whether the 30 candidates vetoed by the Public Integrity Council would be appointed. Ultimately the High Council of Justice ignored the civic watchdog’s vetoes and appointed 25 of the candidates deemed corrupt or dishonest.
Sobolev said some good judges had been nominated, but that the Supreme Court would still be dominated by the corrupt elite.
“A third that you select are good (judges),” Sobolev said. “And then behind them you put all the old, corrupt and controlled guys and say this is a very decisive reform… All really important cases will go to the bad judges.”
Roman Kuybida, an expert at the Reanimation Package of Reforms, argued that no independent judges had been nominated for the Supreme Court.
“All of the principled judges have dropped out of the competition,” Kuybida said, mentioning Mykhailo Slobodin, Roman Brehei and Serhiy Bondarenko as examples.
One of the new Supreme Court judges — Lvov, the chairman of the High Commercial Court — is being investigated for interfering in the system of automatic distribution of cases by the former leadership of the High Commercial Court under Yanukovych. Judges Artur Yemelyanov and Viktor Tatkov have already been charged in this case.
Lvov is also under investigation in a criminal case against High Council of Justice member Pavlo Grechkivsky, who has been charged with fraud, according to the Slidstvo.info investigative show. According to the investigators, Grechkivsky promised to help in a legal dispute, with Lvov’s assistance, for $500,000.
Lvov has also been investigated for making an unlawful ruling, and the Supreme Court has ruled that one of Lvov’s rulings violated human rights and involved interference in the automatic distribution of court cases. He has denied violating any laws.
Meanwhile, new Supreme Court judges Vyacheslav Nastavny and Serhiy Slynko have issued rulings in cases against Yuriy Lutsenko, now prosecutor general, and the Pavlychenko family under Yanukovych. Both cases have been recognized as political persecution, both by the Ukrainian authorities and by the European courts, according to the Public Integrity Council.
“Judges who take orders by phone from the authorities are much worse than corrupt officials, because they have a mandate of impunity and are in high demand by the executive branch,” said Leonid Maslov, an ex-member of the Public Integrity Council.
Nastavny and Slynko deny that the Ukrainian and European courts have recognized the Lutsenko and Pavlychenko cases as political.
Lesko, both a new judge of the Supreme Court and a member of the High Council of Justice that appoints the Supreme Court judges, has failed to take measures to punish judges who persecuted EuroMaidan protesters, according to the Public Integrity Council.
Lesko has violated the principles of the adversarial system and transparency during consideration of their cases by rejecting the plaintiffs’ requests for information on their cases, and missing deadlines, the council said.
She denied not having taken measures to punish judges in political cases and cited confidentiality law and ethical standards as the reason for rejecting plaintiffs’ requests.
“The courts are the last frontline, the last defenders of our kleptocracy,” Sobolev said. “The kleptocracy can’t completely control the investigation process, as it did before, because we have the National Anti-Corruption Bureau. But they do control judges and the court system.”
