Olena Sot­nyk: How to fin­ish the rev­o­lu­tion in Ukraine

Kyiv Post Legal Quarterly - - Contents - By Olena Sot­nyk

More than three years af­ter the Euromaidan Rev­o­lu­tion that drove Pres­i­dent Vik­tor Yanukovych from power on Feb. 22, 2014, Ukraine still hasn’t suc­cess­fully pros­e­cuted any high-level crooks, and we’ve got plenty here.

At Stan­ford Univer­sity’s Draper Hills Sum­mer Fel­low­ship this sum­mer, we ex­am­ined how to catch a “big fish” and looked at a case study in In­done­sia, where the coun­try’s an­ticor­rup­tion com­mis­sion had just be­gun. De­spite be­ing poorly staffed and lack­ing its own of­fice, it had al­ready suc­cess­fully con­ducted in­ves­ti­ga­tions, in­clud­ing one that in­volved a high-rank­ing of­fi­cial and pub­lic pro­cure­ment ex­pen­di­tures. The big fish had pow­er­ful con­nec­tions and support from the pres­i­dent’s fam­ily, but a new an­ticor­rup­tion court that was in­de­pen­dent from the gen­eral court sys­tem helped reel him in.

As a Ukrainian politi­cian and lawyer, I was shocked by the strik­ing sim­i­lar­i­ties be­tween

In­done­sia then and Ukraine now. That sim­i­lar­ity makes Ukraine’s need for an in­de­pen­dent an­ticor­rup­tion court even more ob­vi­ous and press­ing.

Three years ago, peo­ple took to the streets be­cause of gross in­jus­tice. The friends of the pres­i­dent, prime min­is­ter, and at­tor­ney gen­eral could do any­thing they wanted as long as they shared their prof­its. Three years later, the pub­lic has the same feel­ing. For ex­am­ple, only three con­vic­tions were handed down against high-level pub­lic of­fi­cials in 2016, and none went to prison.

In Ukraine, the ju­di­ciary lacks pub­lic trust, and Pres­i­dent Petro Poroshenko’s much bal­ly­hooed ju­di­cial re­forms haven’t changed that at all. The new Supreme Court was sup­posed to be com­pletely dif­fer­ent from the old one, but this trans­for­ma­tion has failed and dis­trust of the courts has ac­tu­ally in­creased.

The vast ma­jor­ity of crim­i­nal cases con­ducted by the Na­tional Anti-cor­rup­tion Bureau of Ukraine and the Spe­cial­ized An­tiCor­rup­tion Pros­e­cu­tor's Of­fice — both out­stand­ing and in­de­pen­dent or­ga­ni­za­tions formed af­ter the Euromaidan — can­not be con­cluded, be­cause cor­rupt judges stand in the way. Even with these new bod­ies, Ukraine’s ju­di­cial sys­tem has proved un­able to bring se­nior pub­lic of­fi­cials and politi­cians to jus­tice.

The con­cept of an an­ticor­rup­tion court in Ukraine is one of the hottest de­bates, al­though ex­ist­ing leg­is­la­tion al­ready pro­vides for the for­ma­tion of a Supreme Anti-cor­rup­tion Court.

Ini­tially, NABU proved to be an ef­fec­tive and in­de­pen­dent in­ves­tiga­tive body. And de­spite be­ing sub­or­di­nate to the pros­e­cu­tor gen­eral, the SAPO showed char­ac­ter, in­de­pen­dence and deter­mi­na­tion. To­gether with those two in­sti­tu­tions, an in­de­pen­dently-se­lected an­ticor­rup­tion court could break Ukraine’s great cor­rup­tion chain.

But Kyiv is awash in myths and ar­gu­ments against this new court. Here are the top five ar­gu­ments against it, as well as my coun­ter­ar­gu­ments in its fa­vor:

1. “Ukraine’s ju­di­cial sys­tem is large enough to con­sider cases of all cat­e­gories. An­ticor­rup­tion courts will be re­dun­dant.”

Spe­cial­iz­ing the court sys­tem would not over­bur­den it; rather, it would make the sys­tem more ef­fi­cient through im­proved pro­ce­dures and higher-qual­ity de­ci­sions, and would ease the load on the en­tire sys­tem.

2. “An­ticor­rup­tion courts have not been par­tic­u­larly suc­cess­ful else­where. On the con­trary, the track record of other coun­tries proves their in­ef­fec­tive­ness.”

An­ticor­rup­tion courts have been quite ef­fec­tive in medium- and highly-cor­rupt coun­tries in Asia and Africa whose sit­u­a­tions re­sem­ble Ukraine’s.

3. “Es­tab­lish­ing a separate an­ticor­rup­tion court is a process that can drag on for sev­eral years. Es­tab­lish­ing an­ticor­rup­tion cham­bers in ex­ist­ing courts could be an eas­ier al­ter­na­tive.”

False. Par­lia­ment only needs to adopt pend­ing leg­is­la­tion to make it hap­pen.

More­over, there are two main goals to es­tab­lish­ing a spe­cial­ized anti-cor­rup­tion court: en­hanc­ing com­pe­tence in cor­rup­tion cases and en­sur­ing the in­de­pen­dence of the body con­sid­er­ing those cases. Es­tab­lish­ing an an­ticor­rup­tion cham­ber in­stead of a separate an­ticor­rup­tion court can solve only the first goal, since the sec­ond one re­quires spe­cial se­lec­tion pro­ce­dures. SAPO and NABU have demon­strated that the re­form of any sys­tem re­quires the

1992 — the ju­di­ciary of in­de­pen­dent Ukraine is es­tab­lished af­ter the Soviet Union’s col­lapse. 2001 — Pres­i­dent Leonid Kuchma's “small ju­di­cial re­form.” 2010 — Pres­i­dent Vik­tor Yanukovych es­tab­lishes au­thor­i­tar­ian con­trol over the ju­di­ciary by strip­ping the Supreme Court of ma­jor pow­ers and trans­fer­ring them to loyal courts and by stack­ing the Con­sti­tu­tional Court with his pro­teges.

2014 — The law on the restora­tion of trust in the ju­di­ciary on the dis­missal of judges who un­law­fully per­se­cuted de­mon­stra­tors of the Euromaidan Rev­o­lu­tion, which drove Yanukovych from power on Feb. 22, 2014. How­ever, so far only 34 of 351 judges in­volved in Euromaidan cases have been fired and 29 have been sus­pended.

2015 — The law to guar­an­tee the right to a fair trial bans dis­cred­ited Yanukovych-era court chair­per­sons from be­ing elected for more than two two-year terms but a bizarre le­gal in­ter­pre­ta­tion en­ables them to be­come chair­per­sons for a third, fourth and even fifth time.

June-july 2016 — Poroshenko signs leg­is­la­tion on the cur­rent ju­di­cial re­form, in­clud­ing the cre­ation of a new Supreme Court.

Fe­bru­ary-march 2017 — Anony­mous test­ing of Supreme Court can­di­dates for pro­fes­sional skills and prac­ti­cal tests

April-may 2017 — In­ter­views with Supreme Court can­di­dates, psy­cho­log­i­cal test­ing of can­di­dates. June-july 2017 — The High Qual­i­fi­ca­tion Com­mis­sion over­rides 75 per­cent of ve­toes by the Pub­lic In­tegrity Coun­cil on judges deemed to be cor­rupt or dis­hon­est, then nom­i­nates a fi­nal list of 120 can­di­dates. July 2017 — Poroshenko signs a law that ef­fec­tively gives him full con­trol over the Con­sti­tu­tional Court. Sept 14, 2017 — The High Coun­cil of Jus­tice starts con­sid­er­ing Supreme Court can­di­dates Sept. 25, 2017 — The High Coun­cil of Jus­tice fin­ishes con­sid­er­a­tion of Supreme Court can­di­dates. Later, it will make fi­nal de­ci­sions on ap­point­ments.

Anti-cor­rup­tion ac­tivists hold a protest in front of the Verkhovna Rada on May 16 against amend­ments seek­ing to re­strict the Na­tional Anti-cor­rup­tion Bureau of Ukraine’s in­de­pen­dence. (Kostyan­tyn Ch­er­nichkin)

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