Bribe-takers and corrupt officials in Ukraine have little to fear from the short arm of Ukraine’s law.
Two years after Ukraine’s EuroMaidan Revolution, which was supposed to sweep the country of corrupt practices, crooked officials are still getting away with soft sentences – minimum prison terms or even just a fine less than the amount of the bribe taken.
Politicians are resistant to changing Ukraine’s notoriously corrupt court system, where judges do what they’re told by those in power or sell their rulings to the highest bidders.
“The regular courts have been blocking the results of the Anti-Corruption Bureau investigations,” Vitaliy Shabunin, head of the Anti-Corruption Action Center, told the Kyiv Post.
Without a special court to hear corruption cases, the battle with graft in Ukraine will come to nothing, added Shabunin. All the recent progress made by anti-corruption bureau detectives will be negated.
The creation of anti-corruption courts was included in amendments to the Constitution approved by the Ukrainian parliament on June 2 as a part of the judicial reform start in Ukraine.
However now, according to experts, lawmakers face the task of fleshing out that structure of the anti-corruption courts with a separate bill specifying how the judges are to be selected and the court itself work.
At stake is progress in the battle against high-level corruption. The new courts will be a vital link in a chain that includes the National Anti-corruption Bureau and a Special anti-corruption prosecutor, experts say.
Watchdogs and lawmakers only have until fall to do it, according to Yehor Sobolev, the head of the Anti-corruption Committee in the Rada.
“The government gave us the summer to create a concept for the new courts. In fall, we have to present a bill in the Verkhovna Rada,” Sobolev said.
Ukrainian courts have been issuing soft sentences on those bribe-takers who they convict, experts say.
Speaking at a conference in Kyiv on June 30, Fedir Oryshchuk, the chief editor of the website “First Instance,” said that in 2014-2015 no convicted bribe-takers were given the maximum jail term of 12 years. Oryshchuk’s website monitors the Register of Judgments of Ukraine together with corrupting watchdog Transparency International Ukraine.
Furthermore, Ukrainian judges often come to different verdicts in very similar cases, Oryshchuk said.
“For example, one judge sentenced a corrupt official to five years in prison for taking a Hr 5,000 bribe. Another judge passed a sentence of six years in prison for a person who took a Hr 4,000 bribe,” said Oryshchuk.
Ironically, the bigger the bribe, the better chance the corrupt official has of evading justice, the expert added: Only 20 percent of bribe-takers get a jail term in Ukraine; the others are let off, or merely have to pay a small fine.
“In 2015 the average sum of bribes taken by corrupt officials was Hr 22,000 ($880), while the average penalty for taking a bribe was Hr 19,000 ($760),” said Oryshchuk. “So as we can see, taking bribes is profitable in Ukraine.”
Deputy Speaker of the Ukrainian Parliament Oksana Syroyid confirmed the expert’s view, saying that many high-profile corruption cases still go unpunished in Ukraine.
“Unfortunately, it is still more profitable to steal huge amounts in Ukraine,” said Syroid.
Up against ‘the country’s owners’
Artem Sytnyk, the head of the NABU, admits that for a long time he was skeptical about creating anti-corruption courts, and thought that the government would do better to reform the current judicial system.
But his view changed after the NABU started investigating Ukraine’s top corruption schemes, and investigators came up against massive resistance from the courts.
For example, Solomyanskiy Court of Kyiv in February banned NABU detectives from using Viber messages sent by Odesa Portside Plant board member Olga Tkachenko as evidence in a corruption case involving close allies of President Petro Poroshenko.
“The anti-corruption court is necessary not just because many judges in Ukraine are corrupt. A lot of judges also are coming under political pressure,” said Sytnyk.
According to him, while creating the model for the new anti-corruption courts, lawmakers and activists have to concentrate not only the transparent selection of judges to work in them, but also create a mechanism to protect them from political influences.
“Future anti-corruption judges have to understand that practically every high-profile corruption case involves the interests of an oligarch, so he or she will actually be coming up against the interests of the ‘owners of the country,’” Syroyid said.
Import new judges?
Sobolev and Syroyid go as far as to claim that only foreign judges would be both safe and maximally independent when working in the future anti-corruption court.
“Here in Ukraine, we could create the first international anti-corruption court, which I think would be a very good beginning,” said Syroyid.
Sobolev agreed, saying that some of the biggest cases of Ukrainian corruption have already become international problems.
“I once met with a colleague from Austria and he asked me why we export our corrupt people, meaning (Dmytro) Firtash,” Sobolev said.
Firtash, once a kingpin in Ukraine’s lucrative and non-transparent gas trade, moved to Vienna after the EuroMaidan Revolution in Ukraine ousted the corrupt regime of former President Viktor Yanukovych. In 2015 an Austrian court refused to extradite Firtash to the United States, where he faces charges of bribery. The court ruled that the charges by U.S prosecutors were politically motivated.
“Unfortunately, such powerful people can afford the best defense lawyers, and only experienced corruption fighters, who previously succeeded in such cases — specialists from the FBI, the CIA, and other organizations — can bring them down,” said Sobolev.
But Ukrainian Justice Minister Pavlo Petrenko is against Sobolev’s idea.
“I’m not a fan of importing specialists to do our own job,” said Petrenko. “Furthermore, no foreign judges will be able to learn Ukrainian law and the criminal code quickly.”
There are also legal obstacles to the idea: Mykhailo Smokovych, a judge at the Administrative Court of Ukraine, told the Kyiv Post that Ukraine’s constitution forbids foreigners from working as judges in Ukraine.
“Furthermore, a judge has to understand the mentality of the nation he is passing a judgment on,” said Smokovych.
However, Petrenko doesn’t rule out the involvement of foreigners in a future anti-corruption court – just not as judges.
“Foreigners could be present and help make decisions in a Ukrainian court,” Petrenko said. “We could let experienced specialists help Ukrainian justice. But the final ruling will always have to be made by a Ukrainian judge.”
