Sept. 1 is the day when Ukraine’s judicial system can decisively change its troubled course in history and send a message to international investors that Ukraine’s courts are really changing and can become trustworthy.
But that all depends on the decisions of a few people, most importantly Andrii Ovsiienko, chairman of Ukraine’s High Council of Justice, a body that — among other duties — ensures the independence of judges and their professional ethics by setting standards and taking disciplinary actions.
“I am a judge myself… and that’s why I am interested, like the other 5,000 judges who are within the system today… that the judicial system be effective, so that the work of such bodies as the High Council of Justice or the High Qualification Commission of Judges of Ukraine could be projected, would be based on law that would be trusted among judges and the society,” Ovsiienko said during an interview with the Kyiv Post at his office in downtown Kyiv on Aug. 26.
A big step in the right direction can take place in a matter of days when the High Council decides the fate of Pavlo Vovk, a controversial judge who heads the Kyiv District Administrative Court, and six other judges implicated in corruption.
In July 2019 and July 2020, the National Anti-Corruption Bureau of Ukraine, or NABU, released the so-called “Vovk tapes” in two batches. They reveal Vovk; his deputy Yevhen Ablov; and judges Ihor Pohribnichenko, Ihor Kachur, Bohdan Sanin, Oleksiy Ohurtsov and Volodymyr Keleberda allegedly breaking the law to benefit politicians and state officials.
The judges now face serious criminal charges: organized crime, usurpation of power, bribery and unlawful interference in the work of the High Qualification Commission of Judges.
They deny the accusations of wrongdoing.
On Sept. 1, Ovsiienko will review the case against four out of six judges, according to Halyna Chyzhyk, a legal expert.
In addition, at least three members of the actual High Council of Justice — Pavlo Grechkivskyi, Victor Hryshchyuk and Oleh Prudyvus — are mentioned as part of a corruption scheme in the Vovk tapes. They were invited to be questioned as witnesses.
The situation looks like a classic catch‑22: The very people charged with saving Ukraine’s judicial system appear enmeshed in the very problems destroying it.
And the one who can salvage the judiciary is likely Ovsiienko.
Opportunity for justice
The stakes are high. Ukraine, a developing country infested with corruption, is in dire need of economic development. In the past six years, Western investors have expressed interest in betting their money on Ukraine. However, they have also said that weak rule of law is the top obstacle.
The “Vovk tapes” are a glaring example of the problem.
Ovsiienko refused to comment on the case before it is decided.
“I wouldn’t comment on this situation today since… relevant submissions from the Prosecutor General’s Office must be reviewed,” he said. “Any of my comments on this matter will not just be premature, but will contradict professional ethics and the law.”
After NABU released the first portion of the tapes in 2019, Ovsiienko was a reviewer in the case regarding the suspension of judges Pohribnichenko and Ivan Shepitko in August 2019.
The day before that hearing, Ovsiienko and then-head of the High Council Volodymyr Hovorukha — who was also a reviewer on Vovk’s suspension in the same case — visited the President`s Office. After that, the three judges in question were not suspended, and, soon after, Ovsiienko became the council chairman.
Ovsiienko says that the meeting at the presidential administration had nothing to do with the case. Moreover, he says that he and his team will provide an objective and just review not only of this case, but of any other judge who is being reviewed.
“The decision is made collegially, being determined by the most votes,” he said.
Ovsiienko refutes his critics who allege that he is sabotaging the judicial system and is loyal to politicians.
As a judge, he says he is interested in the judicial system being effective and trusted in society.
Asked whether he ever took bribes, he is unwavering: “I assure you this never happened.”
How independent?
Ovsiienko grew up in Ukraine’s northwestern Volyn Oblast to parents who have worked as physicians their whole lives.
“I grew up in a family where the profession of a doctor brought trust and respect,” he said. “This was formative for me… I am proud of my parents.”
From an early age, he had a sharp sense of justice and wanted to benefit society, Ovsiienko told the Kyiv Post.
“A judge makes a decision every day and it has to do with the future of a person.”
As the leader of the currently 17-member High Council of Justice, Ovsiienko has ample responsibility for ensuring that his team is making the right decisions. The council has the power to submit proposals on the appointment of judges to President Volodymyr Zelensky, hire and vet judges, consent to the arrest or detention of judges, dismiss judges from office and consider disciplinary complaints against judges.
These obligations are even more important since Ukraine’s 2013–2014 EuroMaidan Revolution, which called for a complete revamp of the country’s judicial system. The HCJ has never met these expectations.
Critics of the body say that it is not fully independent and is filled with politically-connected members, who act unethically and fail to demonstrate transparency themselves.
For example, the De Jure Foundation legal think tank said the following about the council: “Dishonest judges successfully pass qualification evaluations and win competitions to top judicial positions. Disciplinary complaints against notorious judges, as well as complaints filed by NGOs or whistleblowers have been ignored for years by the High Council of Justice. At the same time, complaints regarding judges who are known for an active public position are considered very quickly. They are often followed by disproportionate punishment on formal grounds.”
Reforms vs. stability
Despite criticism, Ovsiienko is optimistic about the body and rates its recent performance “highly.”
Surprisingly, he says the goal is not so much reform as it is to “stabilize the situation in the judicial system.”
“For the last 10 years, reforms are happening already for the third time,” he told the Kyiv Post.
According to him, the immediate problem — and the council’s top priority — is that there are not enough judges in Ukraine. During April-June, the body submitted to Zelensky a request to appoint 430 judges to local courts.
The next priority will also concentrate on appointing judges to the administrative regional divisions in Ukraine. Across the country, there are 7,295 full-time judicial positions. More than 2,000 of them are vacant, Ovsiienko says.
“This huge number of vacancies puts uneven and excessive pressure on judges who are currently working,” he said, adding that this leads to an increase in mistakes made by judges.
Since 2014, many reforms have focused on making Ukrainian judicial institutions more efficient and preventing overstaffing, a problem which is believed to contribute to corruption.
But Ovsiienko doesn’t think over 7,000 positions is too big. He says that it really depends on the amount of judicial procedures and the amount of work at a given time.
“Filling up these (more than 2,000 vacancies) would at least allow us to return to the capacity that we basically had back in 2013–2014,” before many resigned, he said.
Moreover, Ovsiienko says that the High Council does not review the ethics and professionalism of judges alone. Rather, it shares responsibility with the High Qualification Commission of Judges of Ukraine.
“Today, 2,284 judges did not pass the qualification assessment,” he said. The reason for this is that this judicial body has been put on hold.
Still, Ovsiienko believes his agency has done a good job. He said that, so far this year, 83 judges were brought to disciplinary responsibility —a very high number, according to him.
As for reforming the council that he leads, Ovsiienko says that it is important to impose a single standard of disciplinary action. The judicial body is working with Ukraine’s international donors to improve this, he said. These include the U. S. Agency for International Development, the European Union-funded Pravo Justice and Canadian partners.
“I believe this is priority for such a body as the High Council of Justice to create and implement or to make sustainable such mechanisms of disciplinary practice so that a judge can clearly understand that such actions will be viewed as a violation,” he said.
However, critics say that council members strongly oppose integrity checks conducted by international experts.
Ovsiienko’s response is that Ukraine’s constitution doesn’t provide norms that allow the direct participation of international experts in regards to the activity of members of the High Council of Justice.
“At the same time, we never avoided the participation of international experts as advisors or representatives of international projects that included the evaluation of our actions, our authorities,” he said.
But according to Ukraine’s memorandum with the International Monetary Fund, the nation’s top creditor, the country was supposed to create a commission including foreign experts in order to fire tainted members if they violate ethics and integrity standards.
In June, Zelensky submitted a bill on judicial reform to Ukraine’s parliament. But anti-corruption experts say it violates Ukraine’s agreement with the IMF.
Activists rally in Kyiv on Sept. 13, 2017, urging the High Council of Justice not to appoint 30 Supreme Court candidates deemed corrupt or dishonest. Some of the activists hold posters that read “Don’t appoint scoundrels” and “There’s no room for wickedness!” Many of the judges got appointed anyway. (Volodymyr Petrov)
Ovsiienko critics
While Ovsiienko seemingly talks the talk on reform and international cooperation, critics say he doesn’t walk the walk.
They call him a judge of the “old system” and say their expectations that he can help reform the system are low.
According to Ukrainian news site Ukrainska Pravda, Ovsiienko has made several controversial decisions since his time at the High Council of Justice.
For example, he faced criticism for the case involving the dismissal of Volodymyr Ponomarenko, a judge of the Court of Appeals of Cherkasy Oblast.
Ponomarenko was sued for allegedly accepting a bribe. But instead of being fired, he received an honorable resignation and a payment of over Hr 800,000 ($29,200) in severance pay. Ovsiienko was a reviewer in the case.
He says the law did not allow him to reject Ponomarenko’s retirement.
Critics have also taken aim at Ovsiienko for a case involving the appointment of Anzor Saadulayev as a judge for life on the sixth anniversary of the establishment of the AutoMaidan protest movement — part of EuroMaidan — in 2014.
Back then, Saadulayev canceled the driving licenses of AutoMadain members who drove to then-President Viktor Yanukovych’s residency to protest. Ovsiienko was also a reviewer in Saadulaev’s case.
“I am not ready to comment on this specific story,” Ovsiienko said, adding that there were a number of cases that the council rejected, but that Ukraine’s Supreme Court reinstated.
Ovsiienko has also been criticized for making the body less transparent. Under his leadership, it stopped broadcasting its meetings in November 2019 after four years.
But the chairman says the judicial body reviews much information that should not be made public. International experts told him that some matters cannot be public because it could unjustly taint the reputation of judges, Ovsiienko added.
In spite of these controversies, Ovsiienko remains positive on his council’s work and believes they are moving the judiciary in the right direction.
When his work is done, Ovsiienko says he wants to be remembered as a “just and decent person.”
Kyiv Post chief editor Brian Bonner contributed to this report.
