Zelensky’s last chance to defeat corrupt judiciary

by Halyna Chyzhyk, originally published at Kyiv Post

Ukraine desperately needs judicial reform. For almost two years of Volodymyr Zelensky’s presidency, nothing was actually done to clean the system from corrupt judges who seem to become more powerful amid a weak president and his team. Thus, 2021 will be a defining year that will show whether Zelensky will combat the judicial mafia or be defeated by it.

What is going on in the judiciary?

The most scandalous Ukrainian court – the District Administrative Court of Kyiv (DACK) – remains a threat as the president delays its liquidation while the High Council of Justice (HCJ) covers up for corrupt judges. S

Seven judges of DACK including its head Pavlo Vovk and his deputy Eugenyi Ablov are now under investigation by the National Anti-Corruption Bureau of Ukraine for creation of a criminal organization, bribery, illegal decisions, and attempts to seize state power.

Despite that the HCJ, the main judicial governance body in Ukraine, has refused to suspend them.

Instead of condemning judges’ behavior, the HCJ accused NABU of organizing a smear campaign against the judiciary.

Still the High Anticorruption Court (HACC), unlike the rest of the judiciary, remains the only institution not involved in covering up for Vovk and his accomplices.

Only over the last couple of weeks, DACK canceled the lustration of the former head of the investigative department of the Interior Ministry. This official, during the EuroMaidan Revolution that deposed President Viktor Yanukovych in 2014, legalized a nine-story building as a four-story building with a mezzanine and forbade the General Prosecutor’s Office to search a high-profile suspect abroad.

However, the Pecherskyi district court of Kyiv may steal DACK’s thunder – it has its own Judge Vovk (Serhii) and a series of scandalous decisions.

For example, the Pecherskyi court invented a scheme allowing corrupt officials to change investigative authority and remove NABU from the case.

Although only the HACC is authorized to make decisions regarding cases investigated by NABU, the Pecherskyi Court considers and decides on claims asking for a change of the investigative body.

The scheme was already employed in the cases of agricultural magnate Oleh Bakhmatyuk, DACK judges, Burisma owner Mykola Zlochevskyi, and deputy presidential chief of staff Oleh Tatarov. Interestingly, decisions regarding the cases of the DACK judges and Tatarov were made by Judge Serhii Vovk.

The High Council of Justice could easily stop the mayhem by holding judges accountable, but it covers up for them instead. Shockingly, on Jan. 18, 2021, the HCJ refused to consider a claim against the Pecherskyi court Judge Serhii Vovk who urged PrivatBank to pay $350 million to the Surkis brothers’ companies. Despite the fact that the Supreme Court had ruled on the illegality of Vovk’s decision, the HCJ refused even to open disciplinary proceedings regarding a judge.

Also, the HCJ celebrated the end of 2020 in its own way – by initiating the appointment of more than 50 judges who did not pass the qualification evaluation.

Despite the fact that the High Qualification Commission of Judges had not considered the negative opinions of the Public Integrity Council regarding the judges, the HCJ bypassed the constitutional requirements and recommended the appointment of the judges.

Especially outrageous is the fact the HCJ recommended Viktor Kytsiuk, who had not even entered the evaluation procedure. Last but not least, the HCJ started to use disciplinary proceedings to blackmail HACC judges considering high-profile cases. In particular, the HCJ opened disciplinary proceedings against HACC judge Andrii Bitsiuk who decided on the extension of the terms of pre-trial investigation of the DACK case, under the claim of Pavlo Vovk attorneys.

Furthermore, on Jan. 13 the HCJ brought another HACC judge Tymur Khamzin to disciplinary responsibility for the decision in the DACK case.

What about reform?

In his interview with the New York Times in December 2020, Zelensky announced huge judicial reform in the future. This would be the new president’s third attempt in reforming the judiciary, with the first two attempts failing.

Firstly, the implementation of law #193-IX on the reboot of the High Qualification Commission of Judges (HQCJ) and the cleaning out of the HCJ was sabotaged by the HCJ, and then canceled by the Constitutional Court. The president’s second  initiative on the relaunch of the HQCJ (draft law #3711) is now being sabotaged by the members of the Parliamentary Committee on Legal Policy. MPs have been considering the draft for more than six months already and have not even voted on it in the first reading.

On Nov. 5, 2020, the Rada returned draft #3711 for repeated first reading after the Venice Commission published a very critical opinion on it.

However, MPs managed to rewrite the president’s draft in a way that contradicts the recommendations of the VC and keeps judicial clans control over the HQCJ. The role of international experts in the process of selecting of the HQCJ members is minimized due to the latest version of draft  #3711 introduced at the Committee’s meeting on January 14. Meanwhile, the former HQCJ composition was dismissed in November 2019, so the selection and evaluation of judges have been blocked since then. Unfortunately, MPs seem not to care about this fact.

Also, it is discouraging that MPs continue to do nothing to address the Constitutional Court crisis. They neither consider draft laws aimed at preventing the Court from canceling pro-European reforms nor initiate amendments on the competitive selection of judges of the court.

Finally, the most desired reform – the reform of the HCJ – is being sabotaged by the Zelensky team. The Presidential Office, where the judicial reform is led by Andrii Smirnov, delays the draft law on the HCJ renewal which had to be adopted by the end of October 2020 according to the memorandum with the IMF. Moreover,  Smirnov also blocked the promotion of the draft law on the HCJ prepared by the Ministry of Justice in September of the previous year.

At the same time, Smirnov imitates the reform by relaunching the Commission on Legal Reforms established by Zelensky in August 2019.

Ignoring the draft concept of judiciary reform prepared by the working group in 2019, Smirnov initiated the discussion from scratch by presenting a new draft concept to the renewed commission in November 2020.

The document suggests strengthening the HCJ without ensuring the integrity and accountability of its members. Given the previous experience, many discussions will be conducted before the document is adopted. Thus, while on its face this strategy may seem to suggest reform, it is in fact trying to kill it.

What’s next?

Corrupt judges and their patrons in the HCJ feel free to do as they wish as the president and parliament are not able to introduce effective reform and ensure its proper implementation. As the judicial mafia grows stronger each day, the president loses control over his own party and administration.

Having endless fruitless conversations about future judicial reform as the president suggests with establishing another “reform council” is not a solution. We know we need the reform of judicial governance bodies in order to ensure the proper cleaning out and renewal of the entire judiciary. We also know that integrity of future members of the HCJ and the HQCJ can be ensured only with the involvement of international experts and civil society in the process. Without a doubt, we also need to ensure the integrity of the Constitutional Court judges.

We knew it two years ago but time was wasted on discussions, giving compromised judges another chance.

The good news is that reform is still possible.

What is needed is the adoption of the draft laws on the HQCJ and the HCJ ensuring the crucial role of international experts in the process of selection of future members of both bodies and the new procedure on the competitive selection of the Constitutional Court judges. The sooner the relevant legislation is adopted the better. This also should be the priority for the international partners who closely follow the topic. They should not tolerate new rounds of meaningless discussions on future strategies and approaches.

Now it is time for the president to take personal responsibility for the reform and stop relying on his team which covers up for the judicial mafia. Zelensky should switch from statements to actions if he does not want to repeat the fate of his predecessors. Otherwise, street justice will take over.

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