After the Verkhovna Rada gave initial approval to creating an anti-corruption court on March 1, President Petro Poroshenko’s longstanding resistance to such a body surfaced again.
In an interview with the Financial Times published on March 6, Poroshenko refused to ensure that the court is independent and effective. He told the newspaper that he will resist Western donors’ demands that they have a crucial role in the court’s creation, claiming that this violates Ukraine’s Constitution and sovereignty.
“If anybody can imagine that foreign donors will form Ukrainian courts, this is against the Constitution, because only the Ukrainian people can have a decisive role in creating the Ukrainian parliament, Ukrainian court system, and, through parliament, the Ukrainian government, ” Poroshenko said. He added, however, that “all our partners can exchange arguments and find a definite compromise.”
Poroshenko, however, still claimed that he supported the idea that anti-corruption judges should be independent.
Two experts on Ukraine’s judicial system dismissed Poroshenko’s reasoning as absurd.
Anastasia Krasnosilska of the Anti-Corruption Action Center and Vitaly Tytych, a member of the Public Integrity Council, the judiciary’s civil society watchdog, argued that a role for foreign donors does not contradict Ukraine’s Constitution and sovereignty.
They see it as a ploy by Poroshenko to ensure that he controls the anti-corruption court, which would be impossible if foreign donors played a crucial role.
In December and January, Ukrainian anti-corruption groups, the International Monetary Fund, the World Bank and the European Union criticized Poroshenko’s bill and urged him to amend it to ensure that independent judges are selected. He refused to amend it before the first reading and now appears reluctant to significantly change it even in the second reading.
The creation of an independent anti-graft court is crucial because currently corruption cases are buried, blocked and delayed by Ukraine’s politicized and dysfunctional judiciary.
Protests stifled
Thousands of protesters have demanded the creation of an anti-corruption court in recent months. They set up a tent camp in front of the Verkhovna Rada in October.
Samopomich party lawmaker Yegor Soboliev, a major proponent of the anti-graft court, said on March 1 that the protesters would dismantle the tent camp after the passage of a proper bill on the anti-corruption court into law.
However, the police on March 3 demolished the tent camp without a court warrant banning the protest and arrested all of the protesters, injuring 19 people seriously. That was also seen by the authorities’ critics as a blatant signal that they were not willing to create a genuine and independent court.
Foreign donors
According to Poroshenko’s bill, judges of the anti-corruption court will be nominated by the discredited High Qualification Commission and appointed by the High Council of Justice, which have been accused by the Public Integrity Council of rigging the recent Supreme Court competition and deny the accusations.
Foreign partners will play only an advisory role, with the High Qualification Commission able to override their vetoes on candidates.
In the best-case scenario, a commission or chamber controlled by Ukraine’s foreign donors should select anti-corruption judges instead of the High Qualification Commission and the High Council of Justice, Ukraine’s Western donors and civil society activists say. As a less powerful alternative, the High Qualification Commission should be deprived of its right to override foreign partners’ vetoes on candidates for the anti-graft court, they argue.
Loyal foreigners?
Anti-corruption activists also say that it will be impossible to select independent judges if foreign donors choose representatives loyal to the Ukrainian government and susceptible to its pressure.
Some Western officials have sometimes sided with the judiciary’s governing bodies, the High Qualification Commission and the High Council of Justice, and criticized the Public Integrity Council, a civil society watchdog.
These include Andriy Kavakin, head of a Council of Europe project; Dovydas Vitkauskas, a European Union consultant, and Oleksandr Vodyannikov, the project coordinator for the Organization for Security and Cooperation in Europe in Ukraine.
Danute Jociene, a Council of Europe expert, said in February that the Public Integrity Council has no right to criticize judges for issuing a specific ruling.
Meanwhile, in June the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights backed Ukrainian authorities by suggesting that the Public Integrity Council be stripped of its right to veto judges deemed to be corrupt or dishonest.
Tytych said that Ukraine’s foreign partners could delegate independent Ukrainians with impeccable reputation and integrity, such as some people from the December 1 Initiative Group civil-society organization, Soviet dissident and human rights lawyer Myroslav Marynovych or Vyacheslav Bryukhovetsky, honorary president of the Kyiv Mohyla Academy, to vet anti-corruption judges.
Civil society’s role
Under Poroshenko’s bill, the Public Integrity Council, the judiciary’s civil society watchdog, will not play any role in the anti-corruption court competition. Anti-corruption activists say Poroshenko does not want to give it a role because the council has shown its independence from the authorities.
Ukraine’s Western partners, however, say that the Public Integrity Council should take part in the selection of anti-corruption court judges.
Tytych argued that foreign experts would have neither time nor resources to examine candidates’ background as thoroughly as the Public Integrity Council. He believes both the council and foreign experts should take part in the anti-corruption court competition.
Civil society ignored
The government is also creating other obstacles for the Public Integrity Council.
The High Qualification Commission has introduced new regulations according to which a decision of the Public Integrity Council must be signed by all of its members, which will delay or block most of the watchdog’s decisions, according to the council.
Moreover, during the Supreme Court competition the Public Integrity Council could veto candidates, and those vetoes had to be overriden by two thirds of the High Qualification Commission’s members.
But during the vetting of lower-court judges this year, the Public Integrity Council’s information on judges will be ignored unless there is a court ruling against a judge, the High Qualification Commission says.
The High Qualification Commission is planning to vet all of Ukraine’s about 6,000 lower-court judges this year. The Public Integrity Council said it deemed this to be a fake process because neither the High Qualification Commission nor the Public Integrity Council would have time to examine such a big number of judges in such a short time.
Arbitrary powers
Tytych argues that amendments should be introduced to the 2016 law on judiciary reform to deprive the High Qualification Commission of its arbitrary powers during completions for anti-corruption and other judges.
During the Supreme Court competition, 90 scores were assigned for anonymous legal knowledge tests, 120 scores for practical tests, and the High Qualification Commission could arbitrarily assign 790 scores without giving any explicit reasons, he argued.
Tytych told the Kyiv Post that, in the competition for the anti-graft court, 330 scores should be given for anonymous legal knowledge tests, another 330 scores for practical tests, and 330 scores for professional ethics based on conclusions by the Public Integrity Council. That would leave no room for arbitrary decisions and political involvement, Tytych argued.
Corrupt judiciary
The need for a genuine and independent court was highlighted as ordinary courts made a series of controversial decisions in favor of top officials charged with corruption in recent months.
Ukrainian courts released Odesa Mayor Hennady Trukhanov, a suspect in a Hr 100 million theft case, without bail and refused to suspend him as mayor in February and March.
Trukhanov was released because lawmaker Dmytro Holubov of the 136-member Poroshenko Bloc, vouched for him. Holubov, who denies the accusations, has been charged by the United States with cybercrimes, including credit-card fraud, and has been wanted by the Federal Bureau of Investigations.
Interior Minister Arsen Avakov’s son, Oleksandr, and Mykola Martynenko, an ex-lawmaker from the People’s Front party, were also released without bail in corruption cases last year. Moreover, a court returned Oleksandr Avakov’s passport and took off his electronic bracelet, and the freeze on his assets was canceled.
Most of the National Anti-Corruption Bureau of Ukraine’s cases are blocked by courts.
The NABU said in February that, out of the 116 cases it had sent to courts, 44 cases were not being considered. Only two minor officials have been convicted to prison terms.
The ongoing corruption trial against ex-State Fiscal Service Chief Roman Nasirov could take years because hearings are scheduled once a month, and the court has also decided to first read the whole 700-page indictment instead of beginning to consider the case, NABU Chief Artem Sytnyk said in February.
EuroMaidan judges
Another alarming development for judicial reform took place on Feb. 19, when the Supreme Court reinstated a judge fired by parliament in 2016 for unlawfully trying EuroMaidan protesters, citing alleged procedural violations. This opens the way for the reinstatement of the rest of the 19 judges fired by parliament for persecuting EuroMaidan demonstrators.
Out of the 351 judges accused of unlawfully trying EuroMaidan activists, only 14 percent have been fired, and almost all the deadlines for firing them have expired.
Most of those fired have been preliminarily reinstated by the High Administrative Court, and their cases are pending at the Supreme Court. The High Council of Justice also recently canceled its decisions to fire 10 judges implicated in cases against EuroMaidan activists.
Last year President Petro Poroshenko appointed to ordinary courts for life three judges accused of persecuting EuroMaidan activists, and appointed five judges implicated in EuroMaidan cases to the Supreme Court.
Cases against only 16 judges charged with unlawfully trying EuroMaidan demonstrators have been sent to court, and two of them have already been acquitted.
