Supreme Court nom­i­nees tainted by po­lit­i­cal ties, eth­i­cal prob­lems

Kyiv Post Legal Quarterly - - Contents - By Oleg Sukhov sukhov@kyivpost.com

The com­pe­ti­tion to se­lect new judges for the Supreme Court should have been the wa­ter­shed in Ukraine’s postrev­o­lu­tion­ary trans­for­ma­tion from cor­rupt post-soviet oli­garchy to Western-ori­ented democ­racy.

In­stead, when the High Coun­cil of Jus­tice ap­points judges of the new Supreme Court af­ter Sept. 25, many will see it as the cul­mi­na­tion of a failed process, sabotaged by the old guard, that leaves the ju­di­ciary largely un­changed.

Pub­lic dis­con­tent with the coun­try’s cor­rupt ju­di­ciary is build­ing, as courts fail to pun­ish top-level crime and con­tinue to cave in to pres­sure from the au­thor­i­ties in po­lit­i­cal cases.

Re­cently, pro-rus­sian pro­test­ers in Odesa, a Berkut riot po­lice of­fi­cer charged with as­sault­ing Euromaidan pro­test­ers and ex-slo­viansk Mayor Nelya Shtepa, who is on trial for al­legedly co­op­er­at­ing with Rus­sian-backed sep­a­ratists, were re­leased from cus­tody.

And in a sur­real sit­u­a­tion on Sept. 21, the Na­tional Anti-cor­rup­tion Bureau of Ukraine charged two judges for try­ing to bribe a pros­e­cu­tor who was pros­e­cut­ing an­other judge for bribery.

“We’re close to a new rev­o­lu­tion… Ev­ery day we have news that pro­voke so­ci­ety to blow up again,” Samopomich Party law­maker Ye­hor Soboliev said. “Three years af­ter the Euromaidan, so­ci­ety can’t see any jus­tice for top-level cor­rup­tion. So­ci­ety now re­ceives much more in­for­ma­tion about cor­rup­tion. You can see how you’re robbed ev­ery day by top of­fi­cials, but don’t see any con­se­quences of this dis­clo­sure.”

The au­thor­i­ties ar­gue that the Supreme Court com­pe­ti­tion is the most trans­par­ent and ef­fec­tive one in Ukrainian his­tory and will bring good and pro­fes­sional judges.

How­ever, the Pub­lic In­tegrity Coun­cil, a civil-so­ci­ety watch­dog, says that 30 of the 120 Supreme Court can­di­dates nom­i­nated by the High Qual­i­fi­ca­tion Com­mis­sion do not meet eth­i­cal stan­dards, can­not ac­count for their as­sets or have par­tic­i­pated in po­lit­i­cal cases in the past.

The 30 can­di­dates were ve­toed by the Pub­lic In­tegrity Coun­cil, but the High Qual­i­fi­ca­tion Com­mis­sion ig­nored the coun­cil’s ob­jec­tions, and they are still up for ap­point­ment.

More­over, many mem­bers of the High Coun­cil of Jus­tice and many of the Supreme Court nom­i­nees have been ac­cused of hav­ing com­pro­mis­ing po­lit­i­cal con­nec­tions. Pres­i­den­tial coun­cil? The High Coun­cil of Jus­tice is ac­cused of be­ing dom­i­nated by Pres­i­dent Petro Poroshenko, who denies the ac­cu­sa­tions. How­ever, links be­tween its mem­bers and the pres­i­dent are many and var­ied.

Ihor Benedysyuk, the chair­man of the coun­cil, was ap­pointed by Poroshenko and used to work for the mil­i­tary court sys­tem, sub­servient to the mil­i­tary lead­er­ship.

An­other coun­cil mem­ber, Te­tiana Malashenkova, was also ap­pointed by Poroshenko and used to work for Ukr­promin­vest group, for­merly owned by Poroshenko.

High Coun­cil of Jus­tice mem­bers Vadym Nezhura and Volodymyr Komkov were del­e­gated by the Con­fer­ence of Pros­e­cu­tors, which is ef­fec­tively con­trolled by the pres­i­dent.

Olek­siy Malo­vatsky, a coun­cil mem­ber nom­i­nated by the Poroshenko Bloc and del­e­gated by the Verkhovna Rada, worked as a lawyer for Poroshenko in 2014.

Vadym Belyanevych, an­other coun­cil mem­ber, used to work at Vasil Kisil & Part­ners, a firm co-founded by Poroshenko’s Deputy Chief of Staff Olek­siy Fi­la­tov. He has re­quested to be ex­empted from vot­ing for judges who used to work at this firm due to a con­flict of in­ter­est, but the High Coun­cil of Jus­tice re­jected the re­quest.

At least two mem­bers of the coun­cil are linked to the Peo­ple's Front party. Iryna Ma­mon­tova was nom­i­nated by the Peo­ple’s Front party and del­e­gated by the Verkhovna Rada.

Coun­cil mem­ber Pavlo Grechkivsky used to be a lawyer for Mykola Mar­ty­nenko, an exPeo­ple’s Front law­maker and a sus­pect in a graft case, and his brother-in-law.

It has also been al­leged that Grechkivsky is linked to Poroshenko Bloc par­lia­men­tar­ian Ihor Kononenko, since they were both law­mak­ers of Kyiv Mayor Leonid Ch­er­novet­sky's party. How­ever, Grechkivsky denies hav­ing links to Kononenko.

Yaroslav Ro­manyuk, a mem­ber of the High Coun­cil of Jus­tice and chair­man of the cur­rent Supreme Court, is be­lieved to be a protege of ex-pres­i­dent Vik­tor Yanukovych and his deputy chief of staff An­driy Port­nov. Ro­manyuk sup­ported Yanukovych’s dic­ta­to­rial laws of Jan. 16, 2014, which se­verely cur­tailed civil lib­er­ties.

Coun­cil mem­ber Alla Lesko was del­e­gated by the Congress of Lawyers.

She has been ac­cused of be­ing linked to pro-rus­sian politi­cian Vik­tor Medved­chuk and Port­nov, who wielded ma­jor in­flu­ence on Ukraine's lawyer com­mu­nity. Medved­chuk used to be the head of the Ukrainian Lawyers’ As­so­ci­a­tion, and his pro­tégés have held key po­si­tions there. Lesko told the Kyiv Post that the ac­cu­sa­tions were “a mere as­sump­tion that does not re­quire refu­ta­tion.”

Can­di­dates’ con­nec­tions Some of the 120 can­di­dates nom­i­nated for the Supreme Court are ac­cused of com­pro­mis­ing links to po­lit­i­cal lead­ers.

Bo­hdan Lvov, chair­man of the High Com­mer­cial Court, used to work with High Coun­cil of Jus­tice Chair­man Benedysyuk, a pres­i­den­tial ally, at the High Com­mer­cial Court and at mil­i­tary courts. Benedesyuk has re­quested to be ex­empted from vot­ing for Lvov due to a con­flict of in­ter­est.

Lawyer Yevhen Synel­nykov is an as­sis­tant to Vla­dyslav Holub, a law­maker from the Poroshenko Bloc.

Lawyers Ivan Myshchenko, Vy­ach­eslav Peskov and Anna Vron­skaya used to work at the Va­syl Kisil and Part­ners law firm, where Poroshenko’s Deputy Chief of Staff Fi­la­tov was one of the part­ners. Vron­skaya de­nied hav­ing links to Fi­la­tov, say­ing she worked at the firm at a dif­fer­ent time.

Bo­rys Hulko, the chair­man of the High Spe­cial­ized Court for Civil and Crim­i­nal Cases, has also been ac­cused of hav­ing po­lit­i­cal con­nec­tions. Hulko’s wife Tetyana Kryzhanivska works at the BIM law firm, which is co-owned by the Ukrainian Lawyers’ As­so­ci­a­tion, founded by Medved­chuk. BIM, the Ukrainian Lawyers’ As­so­ci­a­tion and Medved­chuk's pro-rus­sian Ukrainian Choice party are all reg­is­tered at the same ad­dress. Hulko de­nied hav­ing any ties to Medved­chuk over the past "15 to 20 years."

In Jan­uary, Hulko was filmed walk­ing out of the Pres­i­den­tial Ad­min­is­tra­tion by Ra­dio Lib­erty, say­ing that he had dis­cussed pro­ce­dural codes.

Mean­while, lawyer Ihor Tkach used to work at Proksen, a firm co­founded and headed by Ser­hiy Kozyakov, head of the High Qual­i­fi­ca­tion Com­mis­sion. Kostyan­tyn Krasovsky, head of the Pres­i­den­tial Ad­min­is­tra­tion’s le­gal de­part­ment, also used to work with Tkach and Kozyakov at Proksen.

An­other can­di­date, Yan Ber­nazyuk, has held sev­eral jobs un­der the lead­er­ship of ex-prime Min­is­ter Arseniy Yat­senyuk.

In Au­gust, some of the can­di­dates were filmed by Ra­dio Lib­erty at the birth­day party of Valery Heletei, who heads the pres­i­den­tial se­cu­rity guard de­tach­ment. They in­cluded Lvov, Hulko and Ro­manyuk.

30 bad ap­ples

Apart from their po­lit­i­cal con­nec­tions, a ma­jor bone of con­tention is whether the 30 can­di­dates ve­toed by the Pub­lic In­tegrity Coun­cil will be ap­pointed. At least 65 judges are to be ap­pointed to the court, while the max­i­mum num­ber of ap­point­ments could be 120.

Sobolev said some good judges had been nom­i­nated, but that the Supreme Court would still be dom­i­nated by the cor­rupt elite.

“A third that you se­lect are good (judges),” Sobolev said. “And then be­hind them you put all the old, cor­rupt and con­trolled guys and say this is a very de­ci­sive re­form… All re­ally im­por­tant cases will go to the bad judges.”

Ro­man Kuy­bida, an ex­pert at the Re­an­i­ma­tion Pack­age of Re­forms, ar­gued that no in­de­pen­dent judges had been nom­i­nated for the Supreme Court.

“All of the prin­ci­pled judges have dropped out of the com­pe­ti­tion,” Kuy­bida said, men­tion­ing Mykhailo Slo­bodin, Ro­man Bre­hei and Ser­hiy Bon­darenko as ex­am­ples.

One of the Supreme Court nom­i­nees — Lvov, the chair­man of the High Com­mer­cial Court — is be­ing in­ves­ti­gated for in­ter­fer­ing in the sys­tem of au­to­matic dis­tri­bu­tion of cases by the for­mer lead­er­ship of the High Com­mer­cial Court un­der Yanukovych. Judges Ar­tur Yemelyanov and Vik­tor Tatkov have al­ready been charged in this case.

Lvov is also un­der in­ves­ti­ga­tion in a crim­i­nal case against High Coun­cil of Jus­tice mem­ber Pavlo Grechkivsky, who has been charged with fraud, ac­cord­ing to the Slid­stvo.info in­ves­tiga­tive show. Ac­cord­ing to the in­ves­ti­ga­tors, Grechkivsky promised to help in a le­gal dis­pute, with Lvov's as­sis­tance, for $500,000.

Lvov has also been in­ves­ti­gated for mak­ing an un­law­ful rul­ing, and the Supreme Court has ruled that one of Lvov's rul­ings vi­o­lated hu­man rights and in­volved in­ter­fer­ence in the au­to­matic dis­tri­bu­tion of court cases. He has de­nied vi­o­lat­ing any laws.

Mean­while, can­di­dates Vy­ach­eslav Nas­tavny and Ser­hiy Slynko have is­sued rul­ings in cases against Yuriy Lut­senko, now pros­e­cu­tor gen­eral, and the Pav­ly­chenko fam­ily un­der Yanukovych. Both cases have been rec­og­nized as po­lit­i­cal per­se­cu­tion, both by the Ukrainian au­thor­i­ties and by the Euro­pean courts, ac­cord­ing to the Pub­lic In­tegrity Coun­cil.

“Judges who take or­ders by phone from the au­thor­i­ties are much worse than cor­rupt of­fi­cials, be­cause they have a man­date of im­punity and are in high de­mand by the ex­ec­u­tive branch,” said Leonid Maslov, an ex-mem­ber of the Pub­lic In­tegrity Coun­cil.

Nas­tavny and Slynko deny that the Ukrainian and Euro­pean courts have rec­og­nized the Lut­senko and Pav­ly­chenko cases as po­lit­i­cal.

Lesko, both a can­di­date for the Supreme Court and a mem­ber of the High Coun­cil of Jus­tice that ap­points the Supreme Court judges, has failed to take mea­sures to pun­ish judges who per­se­cuted Euromaidan pro­test­ers, ac­cord­ing to the Pub­lic In­tegrity Coun­cil.

Lesko has vi­o­lated the prin­ci­ples of the ad­ver­sar­ial sys­tem and trans­parency dur­ing con­sid­er­a­tion of their cases by re­ject­ing the plain­tiffs' re­quests for in­for­ma­tion on their cases, and miss­ing dead­lines, the coun­cil said.

She de­nied not hav­ing taken mea­sures to pun­ish judges in po­lit­i­cal cases and cited con­fi­den­tial­ity law and eth­i­cal stan­dards as the rea­son for re­ject­ing plain­tiffs’ re­quests.

“The courts are the last front­line, the last de­fend­ers of our klep­toc­racy,” Sobolev said. “The klep­toc­racy can’t com­pletely con­trol the in­ves­ti­ga­tion process, as it did be­fore, be­cause we have the Na­tional An­tiCor­rup­tion Bureau. But they do con­trol judges and the court sys­tem.”

Ac­tivists rally in Kyiv on Sept. 13, urg­ing the High Coun­cil of Jus­tice not to ap­point 30 Supreme Court can­di­dates deemed cor­rupt or dis­hon­est. They hold a poster that reads “off lim­its for demons.” (Volodymyr Petrov)

Ukraine’s ju­di­cial re­form re­moves a layer of courts – from four to three lev­els. The three lev­els are: courts of first in­stance, three ap­pel­late courts and then the Supreme Court’s Grand Cham­ber, sub­di­vided into four spe­cial­i­ties – the high­est ap­peals, or so-called third in­stance, courts.

NEWS ITEM: Two of the 120 se­lected can­di­dates for the Supreme Court par­tic­i­pated in the trial of Pros­e­cu­tor Gen­eral Yuriy Lut­senko in 2011-2012 that ended in Lut­senko’s con­vic­tion for em­bez­zle­ment. In 2014, a Kyiv court can­celed the con­vic­tion and ruled that the case against Lut­senko was po­lit­i­cally mo­ti­vated. Have we met be­fore? You look fa­mil­iar

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