Enemies Within - Dec. 11, 2020

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Since coming to power in May 2019, President Volodymyr Zelensky has made little headway in his pledge to thoroughly reform Ukraine’s corrupt judiciary.

Corrupt judges appear to be so entrenched they are emboldened to destroy Ukraine’s anti-corruption infrastructure.

In October the discredited Constitutional Court dealt a blow to anti-graft institutions by eliminating Ukraine’s public asset declaration system.

Zelensky pledged to fire all of its judges but has yet to find any solution.

The same happened with judicial reform.

In 2019, Zelensky signed into law a bill aimed at cleansing Ukraine’s discredited judicial governing bodies — the High Council of Justice and the High Qualification Commission of Judges. Since then, no cleansing has taken place.

Nor has Zelensky reacted to the Kyiv District Administrative Court, which has become the epitome of Ukraine’s corrupt judiciary. Its judges were charged with obstruction of justice and graft in 2019 and 2020, but still kept their jobs.

Experts and reform watchdogs are growing more pessimistic.

“No real judicial reform will take place under Zelensky,” ex-Public Integrity Council coordinator Vitaly Tytych told the Kyiv Post.

The President’s Office did not respond to a request for comment

Constitutional Court mess

On Oct. 29, the Constitutional Court destroyed the entire asset declaration system for state officials by depriving the National Agency for Preventing Corruption (NAPC), which is tasked with checking declarations, of most of its powers. The court also canceled criminal penalties for lying in asset declarations.

Since the Constitutional Court ruling, several bills have been submitted to parliament to resolve the impasse with the Constitutional Court. Only one of them has been passed in the first reading, and it does not appear to be a viable solution.

The Verkhovna Rada on Dec. 4 ostensibly supported reinstating penalties for lying in declarations. Anti-corruption activists lambasted the new bill because it imposes extremely mild penalties — fines, community service and restrictions on freedom that do not include imprisonment.

The bill does not envisage jail time for lying in declarations. The previous law, which the Constitutional Court canceled, stipulated fines, community service and up to two years in jail.

Nor does the bill restore the NAPC’s authority to run the asset declaration system.

Moreover, the new bill does not resolve the underlying problem of the discredited and allegedly corrupt Constitutional Court, which can still cancel any new penalties for lying in declarations and dismantle the rest of Ukraine’s anti-corruption infrastructure.

“This is an attempt to deceive all Ukrainians,” Oleksandra Ustinova, a lawmaker from the 20-member Holos (Voice) faction, told the Kyiv Post. “When they say that they are reinstating criminal responsibility, this is a lie.”

Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, argued on Facebook that “voting for the bill in this format is lawmakers’ corrupt collusion against their country.”

No solution

On Oct. 30, Zelensky submitted to the Verkhovna Rada a bill seeking to fire all incumbent Constitutional Court judges and treat their decision on asset declarations as null and void. The bill has not been passed.

On Nov. 3, lawmakers from the Servant of the People and Holos factions also submitted a bill to temporarily block the Constitutional Court’s work by increasing its quorum from 12 to 17 judges. Currently, three of the 18 Constitutional Court seats are vacant.

That bill has not been passed either.

Four Constitutional Court judges who did not support the cancellation of the asset declaration system said on Nov. 5 that they would temporarily refuse to attend court hearings. This effectively blocked the court’s work due to a lack of quorum.

However, the Constitutional Court announced that it would resume work on Dec. 8 because three of the judges returned to work. This implies that the court may deal further blows to Ukraine’s anti-corruption infrastructure.

“Eleven stooges of Russia and (oligarch Ihor) Kolomoisky are currently destroying the remnants of the Ukrainian state with the full support of (Verkhovna Rada Speaker Dmytro) Razumkov and his working group,” Mykhailo Zhernakov, head of legal think-tank DEJURE, wrote on Facebook. “Congratulations, we are heading towards the abyss.”

The President’s Office reiterated on Dec. 9 that the authorities “must restore society’s trust in the Constitutional Court undermined by specific judges who voted for this shameful decision.”

Venice Commission

The authorities justified delays in solving the Constitutional Court crisis by saying they were waiting for a decision by the European Commission for Democracy through Law, also known as the Venice Commission.

The commission issued its decision on Dec. 9. It said that the Constitutional Court ruling on asset declarations “lacks clear reasoning, has no firm basis in international law, and was possibly tainted with a major procedural flaw – an unresolved question of a conflict of interest of some judges.”

The Venice Commission said that “criminal liability for the submission of knowingly false declaration/failure to submit declaration should be restored.”

“As regards the powers of the National Agency for Corruption Prevention (the NAPC) to verify declarations, all of its powers in respect of public officials other than judges, may be restored as they are unaffected by the reasoning used by the Constitutional Court in its judgment,” the commission added. “…As regards the powers of the NAPC vis-à-vis judges, additional safeguards may be introduced in the law to protect them from potential abuses.”

“In so far as the Ukrainian legislature would contemplate the introduction of an obligation for the NAPC to periodically submit a report of its activities vis-à-vis judges, the High Qualification Commission of Judges (the HQCJ) would appear to be the most appropriate body to play this role in the Ukrainian context, because of its existing powers to verify declarations of integrity of judges,” the commission said. “However, this solution is possible only once the HQCJ is re-established and only if it is composed of professional, honest and independent members.”

The commission also said that “a reform of the Constitutional Court is warranted” and that “parliament should consider making more explicit its presumed intention to limit the scope of Constitutional Court decisions to the specific questions raised by the parties before it.”

The Venice Commission proposed that the Constitutional Court should be obliged to “provide specific reasons for each legal provision which it finds unconstitutional” and that “a screening body for candidates for the office of judge of the Constitutional Court should be established, with an international component, which could include international human rights experts and participation from civil society, to ensure the moral and professional qualities of the candidates.”

Botched judicial reform

The situation with judicial reform legislation has also reached a dead end.

Zelensky’s first judicial reform bill was signed into law in 2019 with the ostensible aim of firing tainted judges and creating credible judicial institutions. However, two bodies tasked with cleansing the judiciary had not been created by the deadline set under the law for February, and the attempt failed.

As a result of the first bill, the discredited High Qualification Commission of Judges was dissolved last year but a new commission has not been created, which means that the assessment of judges’ integrity and professionalism has not been carried out during a whole year.

In June 2020 Zelensky submitted another bill on judicial reform to the Verkhovna Rada. The bill has not been considered yet, and legal experts and anti-corruption activists lambasted the legislation, saying it would not lead to any real reform.

The bill envisages giving the discredited High Council of Justice full control over the selection of the High Qualification Commission.

Zelensky’s June bill also stipulates that a selection panel comprised of three members of the Council of Judges, a judicial self-regulation body, and three foreign experts would choose new members of the High Qualification Commission of Judges.

According to the legislation, foreign experts may be nominated by any international organizations that engage in anti-corruption efforts and judicial issues. Legal experts argued that this procedure makes it very easy for the High Council of Justice to pick “fake” foreign experts who would rubber-stamp Ukrainian authorities’ decisions instead of independent foreign experts.

Mykhailo Novikov, a lawmaker from Zelensky’s party and head of the subcommittee for the judiciary, on Dec. 8 proposed getting rid of foreign experts altogether and stipulating that delegates of the Council of Prosecutors, the Academy of Legal Sciences and the Council of Lawyers choose new members of the High Qualification Commission.

High Council of Justice

According to Ukraine’s memorandum with the International Monetary Fund, Ukraine was also supposed to create a commission including foreign experts in order to fire tainted members of the High Council of Justice if they violate ethics and integrity standards. The IMF deadline for passing legislation on the High Council of Justice – October – has been missed.

In September the President’s Office drafted a bill on cleansing the High Council of Justice. However, more than two months later it has not even been submitted to parliament.

The President’s Office has been holding talks with the IMF on the bill and trying to make the bill more toothless and safe for corrupt judges, according to Kyiv Post sources who spoke on condition of anonymity because the information is confidential.

The current High Council of Justice has a toxic reputation among Ukraine’s civil society. Many of its members face accusations of corruption and ethics violations, which they deny.

On Dec.1-3, the High Council of Justice recommended appointing 10 judges who had not undergone qualification assessment, or vetting. Some of them had been earlier identified by the Public Integrity Council, the judiciary’s civil society watchdog, as violating ethics and integrity standards.

One of the judges is Viktor Kitsyuk, who had been charged with unlawfully prosecuting EuroMaidan activists. Kitsyuk was acquitted in November but the verdict was lambasted by anti-corruption activists as lawless.

“Today’s decision of the High Council of Justice is a crime,” Chyzhyk wrote on Facebook. “And all 15 (council members) must be held responsible for it.”

The council did not respond to a request for comment.

Vovk unpunished

As Ukraine is failing to reform its judiciary, Pavlo Vovk, head of the Kyiv District Administrative Court, has become the symbol of judicial lawlessness and corruption. Despite being charged twice with large-scale crimes, Vovk and other judges of his court are still ignoring summonses, escaping prosecution and keeping their jobs.

They were charged with obstruction of justice in July 2019 and with organized crime, usurpation of power and bribery in August 2019. Half a year after the second charges were brought, the case is still being blocked by Prosecutor General Iryna Venediktova, a Zelensky loyalist, and other officials.

The Prosecutor General’s Office did not respond to a request for comment.

In November the National Anti-Corruption Bureau of Ukraine (NABU) applied for Venediktova’s permission to arrest Vovk but she has so far failed to approve the request.

In August Serhiy Vovk, Pavlo Vovk’s namesake and a judge at Kyiv’s Pechersk Court, helped his colleague escape prosecution by ruling that the Vovk case must be taken away from the NABU. Other law enforcement bodies are believed to be politically dependent and unlikely to successfully pursue the case.

The NABU appealed the decision but Venediktova later asked Serhiy Vovk to clarify it, and he ruled on Dec. 9 that the case must be taken away from the bureau immediately despite the fact that it is still being appealed. The Anti-Corruption Action Center believes that Venediktova is thus helping Pavlo Vovk again.

In October Zelensky also promised under public pressure to initiate consultations with the High Council of Justice on the Kyiv District Administrative Court’s liquidation. However, more than a month later it is not even clear if the consultations have started.

The President’s Office said on Nov. 25 it had sent a letter to the High Council of Justice to initiate consultations on the Kyiv District Administrative Court’s liquidation. The council denied receiving the letter.

In November Vovk scored yet another victory when the NABU had to close a case into allegedly incorrect information in his asset declaration due to the Constitutional Court ruling that eliminated criminal penalties for lying in asset disclosures.

Tolerance for corruption

There are cases inside the administration itself that indicate that the president and his closest circle have a high tolerance for tainted officials. The latest manifestation was the case of Oleg Tatarov, a deputy chief of staff for President Volodymyr Zelensky.

Not only was Tatarov appointed despite the fact that he served as a police official under Yanukovych and, in this role, justified attacks against EuroMaidan activists by riot police,
but he also turned out to be a suspect in an embezzlement case.

The NABU is investigating alleged embezzlement conducted through a housing development contract for Ukraine’s National Guard and carried out by real estate company UkrBud, which is owned by Maksym Mykytas, a former lawmaker. Investigators suspect that Tatarov, formerly a top lawyer for UkrBud, bribed a forensic expert to get false evaluation results that helped the company.

In response, Tatarov publicly attacked the NABU — contradicting the president’s promises that NABU will remain intact.

Then, on Dec. 2, Venediktova blocked the case against him by taking it away from four prosecutors who were in charge of it. Her office denied any wrongdoing.

Tatarov, ironically, is in charge of law enforcement in the administration of Zelensky, including solving the Constitutional Court crisis.

Another top official in Zelensky’s administration whom activists accuse of failing judicial reform is Deputy Chief of Staff Andriy Smyrnov.

“As long as Smyrnov is responsible for judicial reform at the President’s Office, no reform will take place,” Chyzhyk told the Kyiv Post. “Why is there no bill on the liquidation of the Kyiv District Administrative Court and no bill on re-launching the High
Council of Justice?”

“It’s not sufficient for Zelensky just to make statements on judicial reform,” she adds. “He must demonstrate this through his actions and decisions.”

The Kyiv Post requested but did not receive a response from Smyrnov.