by Vadym Valko, originally published by UP
On December 14, the Appeals Chamber of the HACC upheld the recognition of assets of the head of Vasylkiv District Court Maksym Kovbel as unjustified. It is about 3.6 million UAH, which should be collected to the state budget nowadays. In addition to recovery of the sum, Kovbel automatically lost his powers as the judge and risks being dismissed.
However, the most important thing in this story is that this decision creates a real precedent.
For the first time in the history of Ukraine, the asset that was not directly registered to official, but to his relative, will be confiscated.
And today all dishonest officials are at great risk. After all, often illegal assets were registered under the name of relatives, drivers or security guards.
The HACC’s decision described in this text proves that all their illegal assets can be taken away and all thanks to the mechanism of civil confiscation.
Several years ago, we at the Anti-Corruption Action Centre joined the advocacy of the civil confiscation mechanism. Three years have passed since it was introduced in Ukraine. This procedure allows to recover unjustified assets from dishonest officials to the state budget.
Compared to the confiscation, which is applied in criminal proceedings as form of punishment for committing the crime, civil confiscation has simplified procedure of proof. The court makes decision in favor of the party whose version seems more convincing and substantiated.
During its existence, the High Anti-Corruption Court has already adopted five decisions within this mechanism. So far, the Anti-Corruption Prosecutor’s Office is winning against officials. Namely:
- the pioneer was former MP Ilya Kiva, who “lost” 1.25 million UAH for alleged income from renting out the “pulp pit”;
- then there was the case of MP Mykhaylo Volynets, but the HACC refused with very doubtful arguments even to check the possibility of MP to buy apartment worth 7.6 million UAH;
- later, the HACC recovered more than 3 million UAH of unjustified assets from former officer of the National Police Andriy Anosov.
- in October, 2.37 million UAH were collected from Kharkiv tax officer Dmytro Taran and his wife;
- in December, the Appeals Chamber of the HACC upheld the decision by which the head of Vasylkiv court Maksym Kovbel was charged with part of the cost of the capital’s apartment in the amount of 3.6 million UAH.
I would like to tell you about the last decision in more detail, because it is the precedent. It is about asset that was registered not to the official himself, but on his close relative.
According to the version of the Specialized Anti-Corruption Prosecutor’s Office, the judge Kovbel through his mother-in-law became the owner of apartment with the total area of 142 square meters in the capital’s residential complex Izumrudnyi (the developer’s website states that you can reach Khreshchatyk street by car in 10 minutes), and through his father he allegedly purchased Toyota Land Cruiser for 2.1 million UAH. The prosecutor’s office asked to recover 5.7 million UAH from the judge, as this is the amount of legal income that the judge Kovbel and his relatives allegedly lacked.
As the result of hearings in two instances, the court satisfied the appeal of the SAPO, but only partially.
The judge Kovbel was charged 3.6 million UAH as part of the cost of 142-meter apartment worth more than 4.6 million UAH in the capital’s residential complex Izumrudnyi. The father’s car was not recognized as unreasonable asset, as he had enough income to purchase it.
In the first instance, the decision on assets of Maksym Kovbel was made by judges Vira Mykhaylenko, Tymur Khamzin and Serhiy Moysak. At the same time, the judge Mykhaylenko had separate opinion, but it concerned the fact that the prosecutor allegedly incorrectly defined the wording in the request part of the appeal. Later, the Appels Chamber upheld the position of two other judges of the first instance. Judges Dmytro Mykhaylenko, Viktor Pankulych and Ihor Panaid upheld the decision in the Appeals Chamber.
Apartment of the mother-in-law of the judge Kovbel
Officially, the apartment in the capital was registered under the name of the judge’s mother-in-law. However, the court found that its actual owner was the judge himself, and the mother-in-law had no legal income for such valuable real estate.
During consideration of the case, the prosecutor’s office proved connection of the judge and his wife with apartment, in particular by following facts. Namely:
- electronic passes to the territory of the residential complex in the name of the judge and his wife, which were issued almost immediately after the purchase of apartment allegedly by the mother-in-law, and in the application for the pass the judge indicated the address of apartment as the address of his actual residence;
- rent of two places in the underground parking and systematic payment for them, while the mother-in-law did not have a car;
- data on Internet connection and information from Ukrposhta, in particular, the judge received correspondence to the address of the apartment;
- payments for utilities and rent of parking spaces made on bank card as regular payment;
- systematic use by the judge of terminals and cash withdrawals near the residential complex, although the judge, according to him, used the apartment only “from time to time”;
The defendants stated that mother-in-law bought the apartment for her own residence, but she also lives in Ternopil, although she often comes to Kyiv by train. She visits the capital for medical treatment and that is why she chose the apartment on low floor, not far from the train station and clinic.
The existence of apartment worth 4.6 million UAH and car worth 2.1 million UAH is “usual level of provision for average Ukrainian family”. According to lawyers, the judge and his family used this apartment only from time to time, and its owner is his mother-in-law.
She received money for the apartment from the sale of her previous privatized apartment, as well as through assistance from her son from the United States, who allegedly left her 910.000 UAH from the sale of his own apartment and sent her additional 700 USD per month.
And, as usual, lawyers referred to the tradition in Ukrainian society to save money in foreign currency. Allegedly, the judge’s mother-in-law had been constantly changing income from business and labor activity into foreign currency for the previous 20 years. For this purpose, lawyers even provided expert opinion with calculations.
At the same time, lawyers stated that only income without expenses should be considered for the calculation. The court reasonably noted that such approach would banally contradict laws of logic.
When the mother-in-law was speaking in court, she stated that it was difficult for her to survive all this, because the apartment is her only home and she will not have another apartment in her life, and the son-in-law has nothing to do with it.
As for reasons for the appeal against their client, lawyers hinted that it could be the revenge of the prosecutor’s office for the fact that the judge had passed “wrong” decision in one of cases. According to their version, that is why they began to collect information on him.
The court also called the version unlikely that the mother-in-law have bought the apartment for herself but could not confirm any independent entry or exit from the territory of the residential complex for the period of almost two years. Also, the mother-in-law does not have her own car and comes to the capital by train, so it is not clear why she would rent two parking spaces at once.
Toyota Land Cruiser registered under the father’s name
In addition to the apartment, the SAPO also asked to recover from the judge the father’s Toyota Land Cruiser worth 2.1 million UAH. However, the panel of judges made the decision that the father had enough legal income to purchase the car.
The evidence provided by the SAPO included data on the father’s income from the SFS and data from the Smart City system regarding the car, which in 2020-2021 often passed surveillance cameras at the intersection of streets near the residential complex in the morning and in the evening.
Father provided additional documents regarding his income that the prosecutor’s office did not have and explained that he had worked for many years in senior positions in the NJSC Naftogaz of Ukraine. In 1995, he sold apartment in the center of Kyiv for more than 500.000 USD, which were saved but not declared in the tax office. And in 2013, he sold two more properties for more than 100.000 USD.
The SAPO pointed out that the judge’s father purchased this Land Cruiser in November 2020 and gave it to his son in August 2021. The father explained this circumstance by inconvenience of driving Toyota due to his hand surgery and the large size and weight of the car.
In addition, in 2020, the father purchased paid license plate for Toyota worth 8.000 UAH. And when in 2021, he presented the car to the judge, he kept the number plate and even paid for storage until he bought another car (new VOLVO XC90). If the car was bought at expense and on behalf of the judge from the very beginning, then such operations on the part of father would look illogical.
What are consequences of the decision for the judge
Powers of the judge Kovbel ceased from the day the HACC’s decision entered into force. There are no decisions in the register of court decisions that he would have made after that date. The Constitution also provides for dismissal of the judge for violation of the obligation to confirm the legality of sources of origin of property. However, this will be possible only after the High Council of Justice is finally formed.
Today, the Supreme Court remains the last chance for the judge Kovbel. The website of the Judicial Power informs about the cassation appeal, as well as the appeal to suspend the execution of the decision of the Appeals Chamber of the HACC.
Separately, we should recall how Kovbel was protected by the Council of Judges. Yes, the same Council of Judges, headed by Bohdan Monich. The latter was helped to get selected by “Vovk’s flock” from the liquidated KDAC. As soon as the appeal on civil confiscation was filed, the Council of Judges promptly called on the NABU to refrain from publicly disseminating information about the case.
We should also recall that in 2018, without the participation of the Public Integrity Council, the judge Kovbel successfully passed the qualification assessment to the HQCJ and received recommendation to be appointed as the judge for life. This is vivid confirmation of why the public has been so active in pushing for the demolition of old HQCJ and formation of new body of honest candidates.
The team of the Anti-Corruption Action Centre has been fighting for introduction of civil confiscation into Ukrainian legislation for many years. Experts of the organization together with their partners passed all legislative changes through the Parliament and monitored most of cases in the Anti-Corruption Court. And today this mechanism is gradually beginning to give first results, which are very encouraging. I hope that this is only the beginning and there will be more to come.
Perhaps the only risk remains the possibility that the provision on civil confiscation may be cancelled by the Constitutional Court of Ukraine.
The regarding appeal was sent there by Members of Parliament of the Opposition Platform For Life back in 2020. Given names of initiators of the appeal, namely Medvedchuk, Novynskyi, Surkis, Liovochkin, Kiva, Shufrych, etc., the risk of negative decision of the CCU will exist for a long time. Although recently, the Venice Commission approved its opinion on very similar instrument in Armenia, in which it stated that civil confiscation is fully compatible with international and European standards, in particular on the protection of human rights.
This situation also once again confirms the importance of introducing transparent competitive selection to the CCU, because the fate of all the most important reforms, including such important tool for fighting corruption as civil confiscation, will be in hands of these judges.