Ukraine's spluttering judicial reforms hit by fresh setback

By bne IntelliNews November 30, 2023

Ukraine's judicial reforms were hit by a serious setback after the Rada undermined the Public Integrity Council, an independent watchdog that oversees the appointment of judges, Kyiv Independent reported on November 28.

On the tenth anniversary of the EuroMaidan Revolution, the Rada approved a bill in the first of three readings that could effectively dismantle the council by subordinating it to the High Qualification Commission, which would effectively make it impossible for the council to assess a judge’s integrity.

Ukraine’s court system is riddled with corrupt judges that makes them a tool for oligarchs and corrupt businessmen. What little action that has been taken against judges accused of corruption has been largely cosmetic. Reforming the system is high on the EU’s list of needed reforms as part of Ukraine’s accession process.

Previous attempts to clean up the system and fire corrupt judges have been stymied by vested interests that derailed earlier attempts to introduce some oversight to the selection and vetting of judges.

The Public Integrity Council, tasked with assessing the integrity of judges, is a key part of the reform, ensuring the judiciary's accountability and transparency. The new bill aims to hinder the council's ability to evaluate judges' integrity.

The problems with cleaning up the system has been thrown into stark relief by the case of notorious judge Pavlo Vovk, who has been the target of multiple corruption claims, who remains in his job, despite being suspended and his tainted Kyiv District Administrative Court dissolved. The High Anti-Corruption court case against him stalled in June 2022.

Vovk has become a litmus test for judicial reforms. Recordings from 2019-21 made by National Anti-Corruption Bureau of Ukraine (NABU) allegedly capture Vovk engaging in corrupt transactions and issuing unlawful orders. In 2019-2020 he and other judges of his court were charged with usurpation of power, obstruction of justice, organised crime, and abuse of authority. Yet he remains on the government’s payroll and he has yet to be brought to trial.

The case against Vovk and other judges of his court was sent to the High Anti-Corruption Court in June 2022 but got stuck there. The case has faced numerous obstructions, including the refusal of Vovk and other defendants to attend hearings, and a motion to close the case on technical grounds.

“The case could have been moved forward if the High Council of Justice had authorised Vovk’s arrest or fired him, according to Valko and Mykhailo Zhernakov, head of judicial watchdog Dejure,” the Kyiv Independent reports. “However, both the council and other government bodies have done their best to protect Vovk.”

Vovk's judicial immunity, safeguarded by the High Council of Justice, adds to the hurdles in advancing the case. Efforts to suspend or arrest Vovk have been met with resistance from government bodies.

Among others protecting him is the former Prosecutor General Iryna Venediktova, now ambassador to Switzerland, who refused to authorise an arrest warrant for Vovk or let the NABU search Vovk’s office or wiretap him.

The US has been less shy, adding Vovk to the sanctions lists, “for soliciting bribes in return for interfering in judicial and other public processes,” in December 2022.

It has become impossible to fire judges after the High Council of Justice was stripped of its right to sack bent judges due to a law that created special “disciplinary inspectors” for this purpose in 2021, yet no inspectors have ever been hired. Commentators speculate that the creation of the inspectors was a tool to hoodwink Ukraine’s Western sponsors to, one on the one hand, have a reform to point to as progress, and, on the other hand, to effectively sabotage the judicial reforms.

All these problems led to the collapse of the High Council of Justice when most of its members resigned in February 2022. However, the council was revived this January as part of Ukrainian President Volodymyr Zelenskiy's efforts to combat corruption when new members were appointed. In September another new law was passed that empowers the council to consider disciplinary cases and fire judges before disciplinary inspectors are appointed.

The council went back to work at the start of November. Vovk could be sacked now as a result, if a new case is brought against him, but the old evidence from NABU cannot be used as the statute of limitations on that case have expired.

Another way of firing Vovk is if the High Qualification Commission choses to vet him and find him wanting. Vovk skipped a hearing before the High Qualification Commission in 2019, claiming he was sick. However, vetting was suspended in 2019 when the commission was temporarily dissolved and a new commission was only appointed this June, again as part of Zelenskiy efforts to clean up the system. The High Qualification Commission only resumed work and began vetting judges again on November 13, but questions about its effectiveness remain.

“Earlier in November the High Qualification Commission overrode the Public Integrity Council’s vetoes on two judges who the council says do not meet ethics and integrity standards,” the Kyiv Independent reports.

The panel is made up of Ukrainian and foreign legal experts and in the case of a deadlock the international experts vote on a vetting is supposed to prevail. However, experts say that the Ukrainian members of the vetting panel are tainted and would try to make sure the Constitutional Court is completely controlled by the Zelensky administration. There has been controversy too when the former President Petro Poroshenko administration tried to appoint unqualified foreign experts to the panel, who were also believed to be tainted and approved tainted judges on occasion.

As bne IntelliNews has reported, Ukraine has a corruption problem, as corruption is not a problem of the system; it is the system. The ability of politicians to give and take away lucrative tenures is widely used as the basis of political power. Many in power have resisted the attempt to clean up the system as a result.

In addition to Vovk's case, other judges charged with corruption have also seen their cases weakened. For instance, the case against former Supreme Court head Vsevolod Kniaziev, accused by NABU of accepting a $27mn bribe, is faltering, with his bail being reduced several times to $1mn and other accomplices, judges Iryna Hryhoryeva, Serhiy Storozhenko, and Zhanna Yelenina, remaining uncharged, the Kyiv Independent reports. The NABU said in May that several other Supreme Court judges had also taken bribes, proven after NABU reported the serial numbers of the banknotes paid to Kniaziev as a bribe.

Judges of the Supreme Court have been accused of entrenching corruption by appointing tainted judge, Stanislav Kravchenko, as Kniaziev’s replacement as chairman of the Supreme Court. Kravchenko has failed to declare some of his assets and violated human rights, according to a 2015 decision by the European Court of Human Rights, the Kyiv Independent reports.

The Constitutional Court's future also remains uncertain as discredited members have been appointed to a panel responsible for vetting future Constitutional Court judges. The fate of ex-Constitutional Court Head Oleksandr Tupytskyi, who was charged with corruption in 2021 and fled Ukraine, underscores the controversies plaguing the court. Tupytskyi was also sanctioned by the US that year.

“The Constitutional Court’s fate hangs in the balance as several discredited members have been appointed to a panel that will vet candidates for future Constitutional Court jobs,” Kyiv Independent reported.

One of the most important reforms would be to replace the judges on the Constitutional Court, however, here too there are problems as the list of candidates put forward by the Rada also contains the names of tainted judges. It also contains two candidates from Zelenskiy’s Servant of the People party, which is illegal due to a requirement of a separation of the judiciary and politics. This has led to speculation that part of Zelenskiy's plans for reform is to increase the president’s direct control over the machinery of government and the judiciary.

A Swiss study recently concluded that Zelenskiy is showing “authoritarian traits” as Ukraine moves towards a possible presidential election early in 2024.

“Ukraine is at a “critical point” in its democratic evolution as it heads towards presidential elections in 2024,” said a confidential assessment by the Swiss Federal Intelligence Service, released in July.

 

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