President Petro Poroshenko’s Dec. 29 decrees to liquidate most of Ukraine’s 700 courts may be an attempt to establish total presidential control over the judiciary, legal experts told the Kyiv Post on Jan. 6.
The president has portrayed the liquidation of courts as part of the judicial reform aimed at cleansing the court system – a claim that his critics deny.
The Presidential Administration did not respond to a request for comment.
Poroshenko liquidated 142 common-jurisdiction district courts to replace them with 75 district courts and merged hundreds of other district courts into 205 bigger ones. He also liquidated 27 commercial courts, replacing them with the same number of courts, and 44 courts of appeal, which will be replaced with 41 courts of appeal.
It is not clear how the new courts will be formed, and how judges will be recruited. The liquidated courts are expected to function until new ones are created but no deadlines have been set for their creation.
The High Qualification Commission is expected to offer new jobs to incumbent judges after their courts are liquidated. Critics worry that the commission may offer more important jobs to political loyalists and thus ensure the president’s control over the judiciary, Mykhailo Zhernakov, an expert at the Renimation Package of Reforms and member of the Public Integrity Council, told the Kyiv Post.
It is also not clear if competitions will be held for new jobs available at the newly-created courts. Even if they are held, they may be rigged in favor of pro-government candidates the way the Supreme Court competition was carried out, Zhernakov said.
Zhernakov said the liquidation of courts had come out of the blue, and it had not been discussed with civil society or Western partners.
Another problem is that the newly-created courts will have to consider existing cases from scratch, which could lead to the collapse of high-profile corruption cases, investigations into the murder of more than 100 EuroMaidan protesters and many other cases, unless a special law allowing them to continue old cases is passed.
The decrees came just days before Poroshenko’s authority to liquidate courts expired on Dec. 31.
The legality of the decrees has been questioned. Anna Bondarenko, a judge at the Kyiv Commercial Court, wrote on Facebook on Dec. 30 that she saw no legal grounds for the liquidation of courts by decree, and the president could only do that by passing a law.
Poroshenko on Dec. 29 also triggered a controversy by appointing for life three judges who are accused of unlawfully trying EuroMaidan activists – Svitlana Zakharchuk, Maryna Antonyuk and Maria Zelinska.
Anti-corruption court
The decision on court liquidation comes amid Poroshenko’s reluctance to guarantee the selection of independent judges of the yet-to-be-created anti-corruption court.
After not following through with the anti-corruption court’s creation for more than a year, Poroshenko submitted to parliament a bill on an anti-corruption court in December. However, civil-society groups and opposition lawmakers lambasted the bill because they believe it does not guarantee the selection of independent and honest judges.
They argued that the bill does not comply with recommendations on the anti-corruption court given by the European Commission for Democracy through Law, better known as the Venice Commission, on Oct. 9.
The bill has been criticized because it gives foreign experts only an advisory role in the selection of anti-corruption court judges, not a decision-making one. The Venice Commission insisted on a crucial role for foreign experts to make sure that independent and honest judges are selected.
Under the legislation, judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice, which have been discredited and accused of appointing corrupt judges and political loyalists to the Supreme Court and other courts.
Supreme Court
As many as 30 discredited judges deemed corrupt or dishonest by the Public Integrity Council, a civil society watchdog, were nominated for the Supreme Court by the High Qualification Commission in July, and 29 of them were approved by the High Council of Justice in September to December. Poroshenko has already appointed 27 of them to the Supreme Court.
The High Council of Justice on Dec. 28 approved the candidacy of the Council of Judges’ Chairwoman Valentyna Simonenko, who had been previously vetoed by the Public Integrity Council, for the new Supreme Court.
Simonenko’s sister serves Russian occupation authorities in Sevastopol as an official, while her ex-husband had business ties to occupied territories while they were still married, and she visited the areas after Russia’s annexation of Crimea, the Public Integrity Council said. Simonenko, who denied the accusations of wrongdoing, has also failed to declare firms owned by her husband.
The High Qualification Commission and the High Council of Justice have also been criticized for being controlled by Poroshenko and the People’s Front party — an accusation that the bodies deny.
Several of the High Council of Justice’s members were appointed by Poroshenko and his loyalists or used to work with Poroshenko and his allies.
The Public Integrity Council said in October that it had “grounds to assume that the (recent Supreme Court) competition was rigged” by the High Qualification Commission and the High Council of Justice so that it would appoint politically loyal candidates. They denied the accusations.
Constitutional Court
The Constitutional Court competition has also triggered a controvsersy.
In December a competition commission nominated six Constitutional Court candidates, out of which Poroshenko must appoint two. One of them is Anzhelika Krusyan, a controversial associate of Serhiy Kivalov – an ex-ally of former President Viktor Yanukovych.
In November the Congress of Judges also appointed to the Constitutional Court Viktor Horodovenko. Judge Ihor Ushaty has accused him of extorting money from him in exchange for an appointment, and has initiated criminal cases into the accusations, which are denied by Horodovenko. Horodovenko acquired the right to use a Pajero Wagon car in 2010 but failed to declare it in his 2013 and 2014 asset declarations, according to the Reanimation Package of Reforms, a civil society watchdog.
In July the authorities passed a law that allow the president, parliament and the Congress of Judges to hold non-transparent competitions to pick candidates without independent civic oversight in an arbitrary way. Critics say that the law will allow Poroshenko to fully control the Constitutional Court.
Meanwhile, three incumbent judges of the Constitutional Court are under investigation in an usurpation of power case against Yanukovych. According to records in Yanukovych’s Party of Regions’ alleged off-the-book ledger, judges from the Constitutional Court received $6 million from the Party of Regions to help Yanukovych usurp power.
Collapse of investigations
Apart from the alleged legal chaos linked to the liquidation of courts and the creation of a new Supreme Court, all high-profile investigations face total collapse, according to experts from the Reanimation Package of Reforms and other critics.
First, prosecutors legally had to transfer their cases to the State Investigation Bureau, which has not even been created yet. As a result, many cases are paralyzed.
Second, Prosecutor General Yuriy Lutsenko was planning to transfer top-level graft investigations to the National Anti-Corruption Bureau, overloading its tiny staff with cases.
This problem has been partially solved because a legal amendment allowed prosecutors to keep those graft cases, Sergii Gorbatuk, head of the in absentia cases unit of the Prosecutor General’s Office, told the Kyiv Post. He said only some minor graft cases had been sent to the NABU.
Third, procedural code amendments signed by Poroshenko on Nov. 22 make it much more difficult or even impossible to conduct criminal investigations in many cases, critics argue.
