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In recent weeks, President Petro Poroshenko has been trying to sell what he says is as a comprehensive package of judicial reforms. But the much-touted changes are already seen as damaged goods.
The consequence, critics say, is failure to make any of Ukraine’s three main legal institutions — the discredited Soviet-era courts, prosecutors and police — any more trusted, independent or effective than they are today. And this means that Ukrainians quest for justice is going to be put on hold indefinitely, likely making Ukraine’s incumbent politicians even more unpopular.
First, the High Council of Justice, which is controlled by presidential allies, on Sept. 29 appointed 111 new Supreme Court judges, including 25 discredited judges vetoed by the Public Integrity Council, a civic society watchdog.
The vetoed candidates include those under investigation for corruption and other alleged crimes, judges who presided over politically motivated trials, those whose assets do not match their income, and ones with clear conflicts of interest, according to the advisory watchdog.
The council said on Oct. 3 that it had “grounds to assume that the competition was rigged to appoint candidates handpicked beforehand, and the Public Integrity Council was used to legitimize this process.”
Poroshenko and the High Council of Justice denied the accusations.
“The Supreme Court will start operating this year, and this will be its best composition since Ukraine became independent, because academics, legal scholars, lawyers, human rights activists and lower-level judges will become judges for the first time,” Poroshenko said on Oct. 4.
Second, the Verkhovna Rada on Oct. 3 passed a judicial reform bill that would effectively halt many high-profile criminal cases, including major corruption cases and those into crimes committed during the EuroMaidan Revolution that drove President Viktor Yanukovych from power on Feb. 22, 2014.
It also made many other investigations impossible, critics of the legislation say.
And third, Poroshenko has blocked the creation of an independent anti-corruption court for more than a year. He tried to finesse Western and public pressure on Oct. 4, admitting that such a court was necessary but adding caveats that make it appear he is again stalling for time. Some people think that Poroshenko’s focus is to make as few changes as possible until the March 2019 presidential and parliament elections.
Tainted court
The Public Integrity Council on Oct. 3 urged Poroshenko not to sign any Supreme Court judges’ credentials until courts rule on alleged violations that occurred during the Supreme Court competition, and until the High Council of Justice and the High Qualification Commission explain why they rejected the Public Integrity Council’s vetoes on candidates deemed corrupt or dishonest.
The violations of the High Council of Justice and the High Qualification Commission include setting a third minimum score for candidates during the first stage of the competition, failing to set a minimum score for psychological and social testing, and refusing to publish candidates’ practical work and scores given under each criterion of integrity and professional ethics, the civic watchdog said.
The High Council of Justice and the High Qualification Commission have denied that they committed any violations.
The Public Integrity Council also asked Poroshenko to initiate an international audit of the Supreme Court competition and a restructuring of the High Council of Justice and the High Qualification Commission, which the watchdog said have failed to restore trust in the judiciary.
Cases stalled
Another controversial measure was the adoption by parliament on Oct. 3 of amendments to procedural codes that make the functioning of the new Supreme Court possible.
One of the amendments will make it impossible to investigate many criminal cases, critics of the legislation say. Due to the legal chaos surrounding its adoption, its exact wording was unclear as of Oct. 5.
Under the amendment, prosecutors would have to file notices of suspicion for suspects in criminal cases within six months for grave crimes, and within three months for crimes of medium severity. Otherwise, such cases would have to be closed.
Moreover, all cases must be sent to trial within two months after a notice of suspicion is filed, according to the amendment.
This clause was initiated by Radical Party lawmaker Andriy Lozovy.
Sergii Gorbatuk, head of the department on in absentia cases at the Prosecutor General’s Office, said that Lozovy had a conflict of interest in this case, because the bill will let him escape prosecution himself. Lozovy is suspected by the Prosecutor General’s Office of evading taxes worth Hr 1.83 million.
Gorbatuk also said that all ongoing EuroMaidan investigations would have to be closed because of the bill.
“It’s impossible to investigate complicated crimes, especially corruption and economic crimes, within such terms,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, said on Facebook. “This kills anti-corruption reform and any legal responsibility for any serious crimes.”
Shabunin said the clause would enable the authorities to close corruption cases against State Fiscal Service Chief Roman Nasirov, ex-People’s Front lawmaker Mykola Martynenko, and Central Election Commission Chairman Mykhailo Okhendovsky.
The Reanimation Package of Reforms urged Poroshenko to veto the amendments, and they were even criticized by Interior Minister Arsen Avakov and Anatoly Matios, the chief military prosecutor.
Lozovy dismissed the accusations, saying that his clause will prevent delays in legal proceedings and protect people from groundless charges.
The Prosecutor General’s Office could also have to stop EuroMaidan investigations because its cases must be transferred to the yet-to-be-created State Investigation Bureau by Nov. 20 under the law, Gorbatuk said on Oct. 3. However, the bureau has not been created yet.
Moreover, corruption cases against Yanukovych and his allies being investigated by the Prosecutor General’s Office will have to be transferred to the National Anti-Corruption Bureau by Nov. 20, he added. This may have a negative impact on the cases because the NABU does not have the capacity to handle so many cases, according to Gorbatuk.
End to transparency
Another amendment to procedural codes allows judges to ban the filming of court hearings even in open trials, and to prevent visitors from attending them if there are not enough seats. Critics say this will deal a major blow to the judiciary’s transparency.
Reformist lawmaker Sergii Leshchenko said the amendments would increase court fees and make courts “a privilege for the rich.”
The amendments also give state experts a monopoly on forensic examinations, and only a court would be able to authorize a forensic assessment. Shabunin argued that this clause would allow the authorities to control and block forensic assessments.
Moreover, the amendments ban the National Anti-Corruption Bureau of Ukraine from filing motions with any other court than Kyiv’s Solomyansky Court, where the NABU is registered. Critics argue that this is an effort by the authorities to restrict the NABU, since they suspect the government has influence over the Solomyansky Court judges.
Anti-corruption court
Another crucial aspect of judicial reform is the creation of an independent anti-corruption court, which would be capable of jailing corrupt officials — something the discredited conventional courts have failed to do.
Poroshenko on Oct. 4 finally caved in to pressure, and said that he would support legislation to create anti-corruption courts. Previously, he had resisted the idea, proposing so-called “anti-corruption panels” at existing courts instead.
He suggested creating an anti-corruption court, an anti-corruption chamber at the Supreme Court, and representative offices of the anti-corruption court in the regions, while at the same time holding competitions to choose anti-corruption judges at lower-level courts in Kyiv.
“An anti-corruption court should be created as the result of a competition, with civil society’s oversight,” Poroshenko said. “But it cannot be turned into a kind of political inquisition, which some people are dreaming about.”
Poroshenko proposed creating a working group and reaching a consensus between the opposition and the government.
The crucial issue is whether the competition for an anti-corruption court will be carried out transparently and independently, or whether the process will be under the control of the discredited current establishment.
According to a bill sponsored by Leshchenko, Yegor Sobolev and other reformist lawmakers, anti-corruption judges will be appointed through an open and transparent competition, with the participation of civil society and representatives from Western countries. The judges would have higher wages and security guards to ensure their independence and safety.
Poroshenko, who dismissed the opposition bill as a “PR stunt” on Oct. 4, favors a competing bill submitted by Serhiy Alexeyev, a lawmaker from the Poroshenko Bloc, on the creation of anti-corruption chambers.
Alexeyev’s bill stipulates appointing anti-corruption judges at lower courts through competitions that have been criticized by non-governmental organizations as being non-transparent.
Until such competitions are held, incumbent judges of Ukraine’s discredited and corrupt judiciary will choose anti-corruption judges from among themselves, and this could continue for a long period of time, according to the bill. At appeal courts, there will be no competitions at all, with anti-corruption judges chosen by incumbent judges.
Poroshenko’s critics are skeptical about his recent statement on anti-graft courts, seeing it as another ploy.
Shabunin said the working group was a delaying tactic, while Leshchenko said Poroshenko would likely push for the competition for the anti-corruption court to be held under the guidance of the High Council of Justice and without foreign experts.
That would put the competition under government control, rendering it meaningless, Poroshenko’s critics argue.
