Editor’s Note: The Kyiv Post renews Reform Watch, a series that highlights the reform progress — or obstruction — in key areas in Ukraine. The series initially ran in 2014–2017.
Ukraine’s legal reform drive has faced continued obstruction in recent months.
Some of the country’s most important reform targets include choosing a new chief anti-corruption prosecutor, changing how discredited judicial governing bodies work, liquidating the country’s dirtiest court and overhauling the Constitutional Court.
All four of these initiatives have shown recent signs of sabotage, either from lawmakers, the President’s Office or members of the judiciary. Here is how.
Anti-graft prosecutor
Selection of a new chief anti-corruption prosecutor has been blocked since July. Watchdogs suspect the President’s Office of being behind it.
“Currently, the competition has been blocked on the orders of the President’s Office because their main candidate Andriy Kostin has been kicked out of the competition,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, said on Facebook on Sept. 2. “Loyalist members of the selection panel not just run to the President’s Office, they are constantly fulfilling orders by (Zelensky’s deputy chief of staff Oleh) Tatarov.”
Zelensky’s spokesman Serhiy Nikiforov denied accusations that the President’s Office meddled in the selection process. Tatarov did not respond to requests for comment.
The panel that selects the prosecutor consists of four experts chosen by international organizations and seven members chosen by parliament. At least two international experts and five parliamentary nominees are needed to approve a candidate.
The selection panel doesn’t appear to be free from influence.
At least some of the pro-government members on the panel have been handpicked by Tatarov, according to a May 13 report by Radio Free Europe/Radio Liberty’s investigative program Schemes. Commission members are either his personal acquaintances or are otherwise connected to him.
In June international experts on the panel vetoed the candidacy of Andriy Kostin, a member of parliament from President Volodymyr Zelensky’s ruling 243-member Servant of the People party. Activists believe Kostin was the government’s top choice.
Tatarov, who is reportedly overseeing the law enforcement bodies for the President’s Office, is a suspect himself. In December, Tatarov was charged with bribing a forensic expert in 2017, which he denies. In February, a court refused to extend the Tatarov investigation and prosecutors effectively killed it by missing the deadline for sending it to trial.
In May through July, the selection panel vetoed all of the 37 short-listed candidates for chief anti-corruption prosecutor, except for two. Anti-corruption activists say that foreign experts vetoed people who failed to meet integrity standards, while pro-government panel members mostly vetoed the best, most independent candidates.
Drago Kos, one of the foreign experts on the panel, said in a Sept. 6 interview with the Babel news site that the commission’s work is being delayed for unknown reasons. He also complained that some panel members vetoed the best candidates and supported dubious ones.
Kos said he believed there was political pressure on the selection panel.
Pro-government panel members have denied the accusations of wrongdoing.
Oleksandr Klymenko, one of the two candidates to successfully pass an interview, is a detective of the National Anti-Corruption Bureau of Ukraine (NABU), who spearheaded the corruption case against Tatarov.
The other candidate who is still in the running, Andriy Synyuk, has been criticized by anti-corruption watchdogs. He has been a prosecutor since 2010 and is a direct subordinate of Prosecutor General Iryna Venediktova, which raises questions about his independence.
Shabunin argued that pro-government members on the selection panel would try to rig the selection in favor of Synyuk.
After they met on Sept. 1, Zelensky and U. S. President Joe Biden jointly stated that a new anti-corruption prosecutor must be chosen with the best international practices.
Vovk’s court
Pavlo Vovk is Ukraine’s most infamous judge. His Kyiv District Administrative Court, a uniquely powerful court that can influence the work of the government, has become a symbol of injustice and lawlessness in Ukraine.
In April, Zelensky submitted an “urgent” parliamentary bill to liquidate this court. But Kostin, a lawmaker from Zelensky’s party, has effectively blocked it.
Zelensky’s spokesman Nikiforov told the Kyiv Post that the bill’s fate is up to parliament, where the president’s party holds an absolute majority. Kostin did not respond to requests for comment.
The Anti-Corruption Action Center believes that Zelensky’s efforts to shut the court down are lip service and that the president wants to keep it around to make decisions he wants. For example, this court can cancel the selection of the next chief anti-corruption prosecutor if the winning candidate doesn’t suit the president.
One of the candidates for this role has already filed a lawsuit with Vovk’s court, disputing the results of the selection. The court has accepted it for consideration.
Tatarov and Zelensky’s chief of staff Andriy Yermak are trying to disrupt the competition through the Kyiv District Administrative Court, Shabunin argued on Sept. 6.
“This is one of the reasons why the Zelensky administration halted the liquidation of the Kyiv District Administrative Court. Yermak and Tatarov are fine with Vovk,” Shabunin said. “Zelensky’s so-called ‘immediate’ liquidation of the court has been going on for six months and will continue for another six months.”
Yermak did not respond to requests for comment.
All attempts to hold Vovk responsible for corruption and obstruction of justice have run into an impenetrable wall. Courts have refused to extend investigations against the judge while prosecutors missed deadlines for sending the cases to trial.
For months, Vovk dodged summonses from the NABU. Zelensky’s loyal Prosecutor General Venediktova repeatedly refused to authorize an arrest warrant. She also refused to let NABU search Vovk’s office or wiretap him and fired her deputy who authorized corruption charges against the judge.
Responding to accusations of sabotage, Venediktova said in March that she cannot take Vovk to court by force. She added that she doubted the effectiveness of the investigation and said that she did not see any “trial prospects” in the case.
Judicial reform
In July, parliament approved two judicial reform bills that gave foreign experts a crucial role in forming the High Qualification Commission of Judges and the High Council of Justice, the judiciary’s governing bodies.
Giving foreign experts a central role has been a requirement of the International Monetary Fund (IMF), the European Commission for Democracy through Law (Venice Commission) and Ukraine’s other foreign partners.
To hire and fire members of the High Council of Justice, the reform legislation would create the Ethics Council, made up of three Ukrainian judges and three foreign experts. The Ethics Council’s decisions would require the agreement of four members. If the vote is split three to three, foreign experts’ opinion will prevail.
Similarly, the selection panel for choosing the High Qualification Commission would consist of three Ukrainian judges and three foreign experts. At least four panelists will be needed to approve candidates, and foreign experts’ opinion will prevail when the vote is split three to three.
However, there are numerous ways for the government to get around this reform.
First of all, it is not clear whether the legislation will be implemented at all. In 2019, Zelensky signed similar legislation to reform the High Qualification Commission but it was not implemented due to the High Council of Justice’s refusal to carry it out.
Some civic activists and legal experts praised the bill as an unprecedented reform, while Vitaly Tytytch, ex-head of judicial watchdog Public Integrity Council, argued that the passage of the legislation was a trick by Zelensky’s administration to get a loan from the IMF. After the money is disbursed, the authorities will likely derail the judicial reform to avoid losing control over judges, similar to what happened in 2019, he said.
The controversial High Council of Justice has publicly criticized foreign experts’ expanded role, prompting fears that it would block or undermine the reform.
Under one new clause, a selection committee picks 32 candidates and the High Council of Justice chooses 16 of them to advance. Legal think tank DeJure believes that the Council can use this clause to pick the 16 worst candidates, sabotaging the point of the reform.
Ukraine is also coming up on an important deadline that the Council of Judges may miss on purpose to block the reform, Mykhailo Zhernakov, head of DeJure, wrote on Aug. 31.
The Council of Judges must delegate members of the Ethics Council and the selection commission by Sept. 13. Both bodies must be formed by Sept. 18. The Council of Judges did not respond to a request for comment.
Constitutional Court
Another controversy surrounds Ukraine’s unreformed Constitutional Court, which has faced mounting criticism since it destroyed Ukraine’s entire asset declaration system for state officials in 2020, eliminating a crucial pillar of the country’s anti-corruption infrastructure.
In December the Prosecutor General’s Office charged Oleksandr Tupytsky, chairman of the Constitutional Court, with bribing a witness to make him give false testimony.
Zelensky suspended Tupytsky and another Constitutional Court judge, Oleksandr Kasminin, in December and issued a decree to fire them in March. The Constitutional Court refused to implement Zelensky’s decrees, saying that they were unconstitutional.
In July the Supreme Court canceled Zelensky’s decree on the dismissal of Tupytsky and Kasminin as unlawful. Zelensky appealed the decision with the court’s grand chamber. In August, he decreed that competition to replace Tupytsky and Kasminin must take place.
Several leading anti-corruption watchdogs condemned Zelensky’s move in a joint statement. Anti-corruption activists argue that Tupytsky and other judges of the court should be investigated but they also maintain that the president has no constitutional authority to fire judges of the Constitutional Court.
According to the Ukrainian Constitution, only the Constitutional Court itself can fire its members, which is supposed to guarantee its independence.
“The president will only deepen the crisis around the Constitutional Court,” the watchdogs said. “Instead of restoring trust in this body, this will destroy the legitimacy of (the court).”
To reform and cleanse the Constitutional Court, anti-corruption watchdogs and the Venice Commission have proposed holding a transparent competition for Constitutional Court jobs with foreign experts’ participation when incumbent judges retire. However, the Verkhovna Rada’s legal policy committee on Sept. 2 rejected amendments to launch a transparent competition with foreign experts.
“The Servant of the People refused to reform the Constitutional Court,” DeJure said on Sept. 3.
Zelensky’s spokesman Nikiforov said he could not comment on the issue, while Kostin did not respond to a request for comment.
In June, the legal policy committee also approved an amendment allowing members of parliament to become judges of the Constitutional Court, eliminating the political neutrality criterion.
Olga Sovhyria, a lawmaker from the Servant of the People, is both a co-sponsor of the amendment and the leading candidate for a Constitutional Court job.
“Instead of reforming the Constitutional Court, the Servant of the People wants to fill it with its own members of parliament,” Zhernakov said.
