President Volodymyr Zelensky has proposed comprehensive plans to overhaul the judiciary, the prosecution service and other law enforcement agencies.
Zelensky and his team say that his predecessor President Petro Poroshenko’s judicial and prosecution reforms failed and have promised to fix them.
The new president’s planned overhaul includes re-launching the judiciary’s governing bodies, the Supreme Court and the National Agency for Preventing Corruption, firing tainted judges and prosecutors, improving criminal procedure and reinstating penalties for illicit enrichment.
Anti-corruption activists and legal experts warn, however, that the proposed reforms should be used for cleansing law enforcement bodies and making them independent, not for firing those disloyal to the new government and hiring political proteges.
Firing tainted judges
On Sept. 2, Zelensky called for dismissing tainted judges every week. He said that the judiciary should be cleansed by the end of this year.
However, worrying signs had already emerged a month earlier on Aug. 7, when Zelensky created a commission in charge of judicial reform and appointed to it numerous judges implicated in corruption scandals and sabotaging reforms.
Zelensky and his team have also failed to react to a major criminal case against Pavlo Vovk, the ex-head of the Kyiv District Administrative Court who is charged with issuing unlawful rulings.
Fixing anti-corruption court
The High Anti-Corruption Court was launched on Sept. 5. However, if the law is not changed, the court will be overloaded with about 3,500 cases and will not be able to function.
A bill submitted by Zelensky envisages transferring to the court only 200 cases investigated by the National Anti-Corruption Bureau of Ukraine so as not to overburden it with minor cases.
Replacing High Qualification Commission
A bill proposed by Zelensky envisages replacing the current High Qualification Commission of Judges, a judicial governing body that has been accused of blocking judicial reform and promoting tainted judges. The commission denied the accusations.
The bill also seeks to apply lustration — a ban from holding state jobs — to Serhiy Kozyakov, the current head of the High Qualification Commission, and Zenovy Kholodnyuk, the head of the State Judicial Administration.
A commission comprising three members of the Council of Judges and three members of the Public Council of International Experts, a foreign advisory body, will choose new members of the High Qualification Commission of Judges within 30 days after the law comes into effect. The Council of Judges’ participation is controversial because it has also been accused of blocking judicial reform.
One of the downsides is that the bill does not require the involvement of civil society representatives in the future High Qualification Commission, said Roman Maselko, a member of the Public Integrity Council, the judiciary’s civil society watchdog.
Members of the council have also warned that the old commission members must be replaced by independent people with integrity, not by shady protégés of the country’s new government.
Fixing the High Council of Justice
Zelensky’s reform does not currently envisage replacing the High Council of Justice, which has also been accused of blocking judicial reform and promoting tainted judges, which it denies. Civil society has called for re-launching the council, and Zelensky’s team had previously promised to do so.
However, a new commission comprising three High Council of Justice members and three members of the Public Council of International Experts will be able to initiate the firing of members of the High Council of Justice and the High Qualification Commission if they violate ethics and integrity standards or the law, according to Zelensky’s legislation. The problem is that it will still be up to the unreformed High Council of Justice to fire them, which may sabotage the process.
The Anti-Corruption Action Center has proposed giving foreign experts effective powers to block the High Council of Justice from keeping members of the judiciary’s governing bodies who violate ethics standards or the law.
Re-launching the Supreme Court
Zelensky’s judicial reform bill envisages halving the number of Supreme Court judges from 200 to 100.
The yet-to-be-formed new High Qualification Commission of Judges will select a new, smaller Supreme Court out of the old judges of the court. Those who are deemed not worthy of the Supreme Court will be either fired or transferred to appeal courts.
It remains to be seen, however, whether the commission will fire tainted judges or only those disloyal to the new authorities, said Halia Chyzhyk, an expert at the Anti-Corruption Action Center and the Public Integrity Council.
Under ex-President Petro Poroshenko, the High Council of Justice and the High Qualification Commission of Judges appointed 44 Supreme Court judges who the Public Integrity Council says violated integrity and professional ethics standards.
Chyzhyk argued that creating an entirely new uncompromised Supreme Court by holding a new competition would be better than Zelensky’s proposal but may not have enough political support.
Cleansing prosecution service
Prosecutor General Ruslan Riaboshapka on Sept. 2 called the Prosecutor General’s Office an “organized crime group.”
He announced a “re-launch” of the prosecution service by firing tainted prosecutors and hiring new ones by the end of this year. It is not clear if hiring commissions will include representatives of civil society and foreign experts, however.
Law enforcement experts, including StateWatch founder Oleksandr Lemenov, hope that Riaboshapka’s plans will not repeat the fate of ex-Prosecutor General Viktor Shokin’s botched prosecution reform of 2015, when most of the old prosecutors kept their jobs.
A bill submitted by Zelensky envisages cutting the number of prosecutors to 10,000 from 14,000, vetting incumbent prosecutors and suspending the Qualification and Disciplinary Commission of Prosecutors until Jan. 1, 2021. It also stipulates empowering the prosecutor general to fire prosecutors without the Council of Prosecutors’ approval.
The Qualification and Disciplinary Commission of Prosecutors and the Council of Prosecutors include many controversial prosecutors and have been accused of sabotaging prosecution reform and favoring discredited officials, which they deny.
Riaboshapka has been praised by civil society for firing controversial Chief Military Prosecutor Anatoly Matios on Sept. 2 and for appointing reformist Vitaly Kasko as a deputy prosecutor general on Sept. 6. It remains to be seen if Riaboshapka fires discredited Deputy Prosecutor General Serhiy Kiz, who has been accused of blocking investigations into the 2013-2014 EuroMaidan Revolution, and top prosecutor Kostyantyn Kulik, who has been charged with illicit enrichment and accused of participation in fabricated political cases.
Riaboshapka also said on Aug. 30 that a corrupt official must be convicted “every week.”
Meanwhile, Riaboshapka has not yet voiced his position on concerns that investigations into the 2013-2014 EuroMaidan Revolution, including the murder of more than 100 protesters, may collapse.
A recent restructuring of the EuroMaidan investigation units sidelined investigators and prosecutors trusted by civil society, while officials accused by investigators of blocking EuroMaidan cases were put in charge of the investigations.
Reinstating the illicit enrichment law
Another bill submitted by Zelensky envisages reinstating criminal penalties for illicit enrichment. The illicit enrichment law was canceled by the Constitutional Court in February.
Re-launching anti-corruption agency
Zelensky has also proposed legislation to re-launch the National Agency for Preventing Corruption, which has been accused of sabotaging checks of electronic asset declarations. The agency denied the accusations.
The bill would replace the current collective leadership with a single chief. A commission comprising three members of the Public Council of International Experts and three Cabinet representatives will appoint a new head.
Reforming Interior Ministry
On Sept. 2, the Cabinet of Ministers approved plans to liquidate the economic department of the Interior Ministry, which has been accused of putting pressure on businesses to extort money from them.
Zelensky has also submitted legislation to separate the National Guard from the Interior Ministry and subordinate it to the president.
Anti-corruption activists and law enforcement experts argue, however, that no genuine reform of the police will be possible as long as controversial Interior Minister Arsen Avakov is in power. Avakov has faced accusations of corruption and blocking the cleansing of the police, which he denied.
Fixing criminal procedure
Amendments to the Criminal Procedure Code proposed by Zelensky seek to cancel the 2017 law that dramatically hampered investigations by limiting them to 18 months.
The amendments would also allow judges to arrest suspects in corruption cases without the right of bail and grant the National Anti-Corruption Bureau of Ukraine independent wiretapping powers.
Until now, the NABU has had to rely on the Security Service of Ukraine’s wiretapping equipment, which led to leaks of information to suspects.
