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Judges for Judges: High Council of Justice To Take Key Decision on New Supreme Court Composition

We call on the High Council of Justice and the President of Ukraine to ban appointment of the dishonourable 30 finalists, whose judicial rulings violated human rights, as proven by the European Court of Human Rights; whose mismatch between a declared income and actual expenses and property raise substantial suspicion; who participated in banning peaceful assemblies and public protests; who submitted false information in their integrity declarations.

These circumstances are incompatible with the requirements of integrity, professionalism and ethics of a judge of the new Supreme Court of Ukraine.

Ukrainian judicial reform came in force in September 2016. According to it the High Council of Justice (Юстиції), which was later renamed into the High Council of Justice (Правосуддя), became a key judicial authority. It is empowered to take decisions on the appointments, career promotions, penalties and dismissals of absolutely all judges.

It is the HCJ that shall now take key decision on future judges of the new Supreme Court. The High Qualification Commission of Judges forwarded the HCJ the list of 120 candidates recommended for the appointment, but it is the HCJ to adopt decision on whom of these people to appoint. This list is then forwarded to the President, who claimed his powers to be limited to formal adoption of the list offered by HCJ.

The HCJ should be composed of 21 members with 10 selected by the Congress of Judges, 2 per each institution are delegated by: the President,  the Verkhovna Rada, the Congress of Attorneys, the All-Ukrainian Conference of Prosecutors, the Congress of Law Schools Representatives; and the Head of the Supreme Court ex officio.

As of August 2017 19 members of the HCJ are appointed, however, 15 of them were selected/appointed in 2013-2015, before the reform has begun.

This composition of the High Council of Justice has already proven to be of low effectiveness, intransparent and even politically biased:

  • having responsibility to bring to justice the judges, who prosecuted Maydan activists, failed to do it in 85% of cases. Most of the cases were closed due to expiry of the limitation period in early 2017;
  • failed to define reasons and sources of political pressure over the judges, who prosecuted Maydan activists;
  • in February 2017 ruled to close public access to disciplinary cases against judges;
  • refused to make public information about the salaries of the HCJ members, in violation of the law on access to public information.

14 votes are needed for the decisions on the appointments of the Supreme Court judges to be taken.

3 HCJ members ran for the Supreme Court (Alla Lesko, Alla Oliynyk and Yaroslav Romaniuk), 2 won the competition – Lesko and Oliynyk. Although also being shortlisted Romaniuk voluntarily quitted right after the results were announced by the HQCJ. In addition, Lesko and Romaniuk were blacklisted by the Public Integrity Council.

Given that certain members of the HCJ were and are still running for the Supreme Court judges positions, their review of the list of Supreme Court finalists would cause a conflict of interest not only in the part of voting for themselves, but also in the part of (not-)voting for their competitors. Legal explanation of the grounds of the conflict of interest is provided by the Center for Policy and Legal Reform (in Ukrainian).

As of now, there are only 3 members of the HCJ who have proven their independence from the political power on multiple occasions, including the consideration of the cases of Maydan judges. Were Romaniuk to stay in the competition to the Supreme Court, all 3 HCJ members-SC candidates would have to abstain from voting on their competitors. That would leave the HCJ with less than 14 votes necessary to adopt desired decisions.

It is rumored that Romaniuk was offered the position of the Constitutional Court Justice in return. Considering that his resignation letter was announced right after he was not only found corresponding to the position of a SC judge by the HQCJ, but also a finalist of the competition (25th in the rating), this scenario looks likely. Romaniuk’s resignation is seen by the civil society experts as a way to ensure that there are enough politically controlled votes at the HCJ.

Given all the facts, as well as HCJ members profiles attached, the public has reasonable concern regarding political impartiality of current members of the HCJ. Some of them demonstrate political affiliation with the President and/or his close associates, others – with corrupt representatives of old judicial system.

HCJ Members profiles

Ihor Benedysyuk, head of the High Council of Justice

According to his official biography, in 1991-94 he worked as a judge in the Russian Federation and resigned in April 1994. In the meantime, he started to work as a military judge in Kyiv two months earlier, in February 1994, which means that for 2 months he held concurrently judicial positions is different countries. Moreover, it is very doubtful that Benedysyuk could serve as a judge in Russia without obtaining Russian citizenship, but it is kept in strict secret if and when he got Ukrainian citizenship and abandoned Russian one. Automaidan filed a few requests to the HCJ and the HQCJ, but did not get any information, while the HCJ separately stressed on inadmissibility of searching for these data.

In spite of violation of the law, in 2015 the President awarded acting judge Benedysyuk with the state reward Honorary Weapon.

Moreover, in order to enable Benedysyuk’s second term as the head of the HCJ, legislative provisions were changed.

Ihor Benedysyuk and Nataliya Volkovytska

Benedysyuk (since 2003 till now) and Volkovytska (since 2004 till now) serve as judges of the High Commercial Court. In this court in 2011-2014 there were more than 21,000 interferences in the work of the automatic system of courts document flow, due to which a group of the court judges were regularly assigned to consider cases in violation of legislatively established procedures. Both Benedysyuk and Volkovytska were not assigned cases, but they did not commit any actions to stop systemic violations of the law.

Vadym Belyanevych

In 1994-2006 he worked as an attorney in the law firm “Sergiy Kozyakov and partners”, where acting head of the High Qualification Commission of Judges Kozyakov was a chief partner.

Since 2006 and until his appointment as the HCJ member he worked in the law firm “Vasyl Kisil and Partners” together with current Deputy Head of the Presidential Administration Oleksiy Filatov.

His election to the HCJ by the Congress of Attorneys was tainted with a scandal and succeeded from the second attempt only.

Pavlo Hrechkivskyi

Suspected in demanding a bribe of 500,000 USD for allegedly influencing courts decisions. PGO appealed for his dismissal from office, but the HCJ denied. Indictment was served to him, and the criminal case was submitted to the court.

In 2006 and 2008 was twice elected to the Kyiv сity сouncil as a member of Leonid Chernovetskyi Block, in addition, he advised Kyiv city mayor Chernovetskyi on judicial issues. Chernovetskyi is well-known for his involvement in corruption schemes linked to sale of Kyiv land, in July 2017 the court allowed to arrest him on suspicion of power abuse.

Hrechkivskyi is a business partner of a scandalous Artur Yemeliyanov, judge of the High Commercial Court who organized a comprehensive system of unlawful influence of judiciary. Both of them own  a company “Wellness Center Cecil”, which has 7 hectares of forests at Kyiv Zhukiv island among its assets.

Oleksiy Malovatskyi

Has a strong and visible political affiliation with Petro Poroshenko:

  • in May 2014 was elected as a Member of Kyiv city council of “Udar-Solidarnist” party (“Solidarnist” is President’s party);
  • during 2014 Presidential elections and 2014 Parliamentary elections he managed the work of the legal service of campaign headquarters;
  • during 2014 Parliamentary elections was included in the list of candidates of Petro Poroshenko Block under No84;
  • assisted the PPB MP Ruslan Kniazevych;
  • three months after the appointment as HCJ member the President awarded him with the “Honoured Lawyer of Ukraine” state reward, which foresees bonuses equal to 15% of the salary.

Tetyana Malashenkova

Has a strong and visible political affiliation with Petro Poroshenko:

  • during 2014 Parliamentary elections was included in the list of candidates of Petro Poroshenko Block under No85;
  • in 2010 was representing Channel 5, owned by the President, in the court;

In addition, together with the assistants of the Party of Regions MP Tetyana Zasukha Malashevska co-founded an enterprise “Alliance of Attorneys of Capital”.

Vadym Nezhura

There is an evident mismatch between family income and assets.

In 1990-1997 worked as a legal counsel, since 1997 and before his appointment as the HCJ member served as a judge in different courts. His wife is an individual entrepreneur since 2005. At the same time together with his family they own: the 485 square meters residential house in Boryspil, the 138 in Vyshenky village (near Kyiv, reported as unfinished), 7 apartments (67,5 sq.m, 77 sq.m, 112 sq.m, 43 sq.m, 119,6 sq.m and 120,5 sq.m in Kyiv, the latter is situated in Riviera Riverside complex, and 41,2 sq.m in the resort Truskavets), 2 cars (Volkswagen Jetta of 2011 and Mitsubishi Outlander of 2009), 2 land plots, 1 garage.

The residential house in Boryspil alone is worth of appr. 18 annual salaries of Nezhura or 14 annual incomes of his wife as of 2015.

Yaroslav Romaniuk

Is the Head of the current Supreme Court of Ukraine. His ruling was found by the ECHR as the one violating fundamental rights and freedoms. ECHR stated that the decision of the Supreme Court of Ukraine regarding ECHR decision in the case “Bochan v. Ukraine” in adoption of which judge Romaniuk participated distorted ECHR’s conclusions and can be treated as “gross arbitrariness” and “denial of justice”

Romaniuk publicly supported adoption of the laws on dictatorship, passed by the Rada on January 16, 2014, which later caused Maydan tragic events.

According to investigation, conducted by the National Police and the PGO, an interference into the system of external independent knowledge testing was done in favor of Khrystyna Romaniuk, whose initials and age correspond with Romaniuk’s daughter’s.