Historically, Ukrainian courts have been seen as places where judges get rich by protecting corrupt interests, rather than pursuing justice. Consequently, they’ve become among Ukraine’s most distrusted institutions — no small feat in a nation that largely distrusts its government and political leaders.
Two years ago, Ukraine created the High Anti-Corruption Court with the help of foreign experts to achieve a breakthrough.
So far, the new anti-corruption court is working better and faster, anti-corruption activists say. It has delivered 28 guilty verdicts in corruption cases.
“The High Anti-Corruption Court is making historic decisions that were previously unthinkable at conventional courts,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, told the Kyiv Post. “Suspects in high-profile cases are afraid of the anti-corruption court’s decisions.”
But not all the reviews are favorable.
Vitaly Tytych, ex-head of judicial watchdog Public Integrity Council, is more skeptical about the new court. He says that the National Anti-Corruption Bureau and the High Anti-Corruption Court were created to jail “big fish” — the highest-ranking officials — but so far only small fry have been punished.
Consequently, corruption remains endemic and impunity still reigns.
Firstly, only lower-level officials tend to be jailed for graft. More powerful and influential ones escape corruption charges, either getting cases closed or getting them delayed interminably.
Secondly, several judges of the High Anti-Corruption Court are themselves accused of corruption and have made dubious rulings.
Thirdly, Prosecutor General Iryna Venediktova has arbitrarily taken cases away from this body and sent them to conventional courts. She has denied the accusations of sabotage.
The High Anti-Corruption Court did not respond to requests for comment.
Statistics
Since 2019, the anti-corruption court has issued 28 guilty verdicts, including 14 jail sentences. It also acquitted two suspects.
“In general we assess the court’s work positively, except for some of the judges,” Olena Shcherban, an expert at the Anti-Corruption Action Center, told the Kyiv Post. “Compared to other courts, the
High Anti-Corruption Court is several steps ahead.”
The highest-ranking convicts are two former members of parliament.
Oleksandr Chernenko, a former lawmaker from ex-President Petro Poroshenko’s party, was given a three-year suspended sentence for unlawfully getting Hr 582,000 from the state to buy an apartment. Hennady Bobov, a former member of parliament, was fined Hr 51,000 for false information in his asset declaration.
The court has also sentenced eight lower-level judges to jail terms ranging from two to nine years for bribes ranging from $500 to $20,000.
Other convicts include the CEOs of several medium-sized businesses, an investigator, lawyers and a member of a Kyiv Oblast legislature.
The highest-ranking suspects on trial have not had verdicts yet.
These include Roman Nasirov, the former head of the State Fiscal Service; Mykola Martynenko, a former lawmaker from Interior Minister Arsen Avakov’s People’s Front party; Odesa Mayor Hennady Trukhanov and Yaroslav Dubnevych, a lawmaker who previously represented Poroshenko’s party.
Cases against other top suspects — President Volodymyr Zelensky’s deputy chief of staff Oleh Tatarov and Pavlo Vovk, head of the Kyiv District Administrative Court — have been effectively buried.
Controversial party
When the head of the anti-corruption court, Olena Tanasevych, was spotted at a party with major corruption suspects in December, it raised many critics’ eyebrows. The Slidstvo.info investigative program first reported on the party.
The partygoers included Pavlo Vovk, head of the Kyiv District Administrative Court, and Oleksandr Tupytsky, head of the Constitutional Court. The event was hosted by controversial pro-Russian ex-lawmaker Serhiy Kivalov.
Tanasevych confirmed attending the party but said she had not spoken to Vovk and Tupytsky.
“The worst thing is that her presence at such an event undermines the court’s reputation as an institution, and the High Anti-Corruption Court’s head appears not to be aware of it,” Halia Chyzhuk, a judicial expert at the Anti-Corruption Action Center, wrote on Facebook.
Tanasevych’s presence at the party coincided with controversial rulings by her court that helped Vovk escape responsibility in a corruption case.
Bitsyuk’s rulings
Vovk’s reprieve came from Andriy Bitsyuk, a judge of the High Anti-Corruption Court, who’s accused of sabotaging the country’s most high-profile judicial corruption case.
In 2020 Vovk and other judges of his court were charged with organized crime, abuse of power, bribery and unlawful interference with government officials. Vovk is seen by civil society as the epitome of judicial corruption and impunity in Ukraine.
In January Bitsyuk refused to bring Vovk to court for a bail hearing by force, although he later allowed the NABU to do so. The attempts failed because Vovk hid from the bureau.
In March Bitsyuk also refused to extend the Vovk investigation, leaving the prosecutors just two options: send the case to trial in five days or close it. The case was not sent to trial by the deadline and is likely dead.
Bitsyuk was pressured into his decision by the High Council of Justice, the judiciary’s highest governing body, according to the Anti-Corruption Action Center.
Hours before Bitsyuk refused to extend the investigation, the High Council of Justice warned him and accused him of violating procedure in the Vovk case. Members of the council have been implicated in Vovk’s alleged corruption schemes, according to audio recordings released by the NABU.
The council did not respond to requests for comment.
Moysak’s decisions
Another judge of the High Anti-Corruption Court, Serhiy Moysak, has been extremely lenient towards suspects in major corruption cases.
“He has issued very dubious rulings in many cases,” Shcherban said. “Moysak has also missed deadlines set by the Criminal Procedure Code.”
Moysak has considered the high-profile smuggling case against businessman Vadym Alperin. In March 2020 Moysak refused to make Vadym Alperin pay his Hr 70 million bail despite the fact that Alperin violated the bail conditions.
In May 2020 Moysak went even further, canceling all restrictions imposed on Alperin. These included an electronic bracelet and the requirement for him not to speak to other suspects.
The court’s spokeswoman Vira Mykhailenko defended Moysak’s decisions in the Alperin case, arguing that they were lawful.
In 2019 Moysak released another suspect, former lawmaker Maksym Mykytas, on Hr 5 million ($180,000) bail in an embezzlement case.
Activists lambasted this amount as miniscule. In the same month, the High Anti-Corruption Court’s appeal chamber canceled Moysak’s decision and increased the bail to Hr 80 million.
Meanwhile, Mykytas has testified that he gave a $600,000 bribe to employees of the High Anti-Corruption Court when Moysak released him on bail, law enforcement sources told the Kyiv Post. President Volodymyr Zelensky’s deputy chief of staff Oleh Tatarov allegedly acted as an intermediary for the bribe, according to Mykytas’ testimony.
Rotterdam+
Another controversy surrounds the NABU investigation into the Rotterdam+ pricing scheme, which benefited oligarch Rinat Akhmetov’s energy company DTEK.
Under this scheme, regulators raised energy prices across Ukraine, supposedly to pay for the delivery of coal from Rotterdam. Only about 5% of coal came from abroad and none of it was from
Rotterdam, which means the Ukrainian public overpaid Hr 39 billion for electricity over three years, which DTEK allegedly pocketed, according to the NABU.
In September 2020 Kateryna Shyroka, a judge at the High Anti-Corruption Court, upheld the Special Anti-Corruption Prosecutors’ decision to close the Rotterdam+ case. The Anti-Corruption Action Center believes the decision to be unlawful.
The court’s spokeswoman, Mykhailenko, dismissed the accusations and in turn accused the watchdog of pressuring the court.
A different judge of the court eventually revived the case but prosecutors closed it again in April.
Procrastination
The anti-corruption court is also infamous for procrastinating.
Since 2019, the court has not even completed the legal formalities preceding substantial consideration in 30 corruption cases, according to Vadym Valko, a legal expert at the Anti-Corruption Action Center.
Such cases are often artificially delayed by suspects and their lawyers and judges of the High Anti-Corruption Court have been unable to resist their manipulation, Valko said in an op-ed in online newspaper Ukrainska Pravda in 2020.
These include graft cases against ex-lawmaker Oleksandr Onyshchenko; former Poroshenko Bloc lawmaker Yaroslav Dubnevych and his brother Bohdan; ex-People’s Front lawmaker Maksym Polyakov, former Poroshenko Bloc lawmaker Borys Rozenblat, and top executives of the Odesa Portside Plant and railway monopoly Ukrzaliznytsia.
The anti-corruption court has also dragged its feet investigating false information in assets declarations, according to Andriy Savin, a lawyer at the Anti-Corruption Action Center. As a result, the court missed the deadlines set by the statute of limitations in many such cases.
The problem was exacerbated in October 2020, when the discredited Constitutional Court issued a ruling that effectively destroyed Ukraine’s entire asset declaration system for state officials. All charges of lying in asset declarations were dropped as a result, letting everyone off the hook.
Selection
Some of the problems that the court faces may stem from the way its judges were selected.
A panel of foreign experts vetoed 40 candidates for the anti-corruption court who did not meet ethics and integrity standards. This vetting was viewed as progress compared to how conventional courts are chosen.
However, according to anti-corruption watchdogs, seven candidates had previously failed to meet integrity standards but were appointed nonetheless.
Tytych also believes that the assessment methodology for candidates was arbitrary and that the selection of judges was manipulated and rigged by the High Qualification Commission, a judicial governing body that denied the accusations of wrongdoing.
He says that foreign experts should have played a stronger role and selected the best possible candidates based on experience and ethics instead of just vetoing the worst ones, Tytych said.
Some of the judges who got into the court turned out to be “dark horses” — candidates about whom little is known and whose integrity could not be assessed, Shabunin said.
Obstruction
The High Anti-Corruption Court has also faced obstruction from the Prosecutor General’s Office.
Despite its exclusive jurisdiction in graft cases, prosecutors have whitewashed influential suspects by transferring them to corrupt conventional courts.
That’s what happened in the bribery case against Zelensky’s deputy chief of staff, Tatarov.
In December, Kyiv’s Pechersk Court ordered Prosecutor General Venedikova to take the case away from the NABU. Venediktova’s deputy, Oleksiy Symonenko, used the Pechersk Court ruling as a pretext to give the case to the more politically pliant Security Service of Ukraine.
The NABU believes the transfer of the Tatarov case to be unlawful.
Under Ukrainian law, the Tatarov bribery case falls squarely into NABU’s jurisdiction. NABU cases cannot be considered by other law enforcement agencies. Jurisdictional disputes can only be considered by the High Anti-Corruption Court, and the Pechersk Court has no authority to hear them.
In February, the case was eventually buried. Kyiv’s Shevchenkivsky District Court refused to extend the Tatarov investigation, and prosecutors failed to send it to trial by the deadline.
