The Big Fail

Poroshenko’s ju­di­cial over­haul ends ac­ri­mo­niously

Kyiv Post - - Front Page - BY OLEG SUKHOV and OKSANA GRYTSENKO SUKHOV@KYIVPOST.COM an and GRYTSENKO@KYIVPOST.COM

In re­cent weeks, Pres­i­dent Petr Petro Poroshenko has been try­ing to se sell what he says is as a com­pre­hen­sive pack­age of ju­di­cial re­forms. But the much-touted chan changes are al­ready seen as dam­aged­dam­age goods. The con­se­quence, crit­ics say, is fail­ure to make any of Ukraine Ukraine’s three main le­gal in­sti­tu­tions — th the dis­cred­ited Soviet-era courts, pros prose­cu­tors and po­lice — any more trus trusted, in­de­pen­dent or ef­fec­tive tha than they are to­day. And this mean means that Ukraini­ans quest for jus­tice is go­ing to be put on hold in­def­i­nitely, likely mak­ing Ukraine’s in­cum­bent politi­cians even more un­pop­u­lar.

First, the High Coun­cil of Jus­tice, which is con­trolled by pres­i­den­tial al­lies, on Sept. 29 ap­pointed 111 new Supreme Court judges, in­clud­ing 25 dis­cred­ited judges ve­toed by the Pub­lic In­tegrity Coun­cil, a civic so­ci­ety watch­dog.

The ve­toed can­di­dates in­clude those un­der in­ves­ti­ga­tion for cor­rup­tion and other al­leged crimes, judges who presided over po­lit­i­cally mo­ti­vated tri­als, those whose as­sets do not match their in­come, and ones with clear con­flicts of in­ter­est, ac­cord­ing to the ad­vi­sory watch­dog.

The coun­cil said on Oct. 3 that it had “grounds to as­sume that the com­pe­ti­tion was rigged to ap­point can­di­dates hand­picked be­fore­hand, and the Pub­lic In­tegrity Coun­cil was used to

le­git­imize this process.”

Poroshenko and the High Coun­cil of Jus­tice de­nied the ac­cu­sa­tions.

“The Supreme Court will start op­er­at­ing this year, and this will be its best com­po­si­tion since Ukraine be­came in­de­pen­dent, be­cause aca­demics, le­gal schol­ars, lawyers, hu­man rights ac­tivists and lower-level judges will be­come (Supreme Court) judges for the first time,” Poroshenko said on Oct. 4.

Sec­ond, the Verkhovna Rada on Oct. 3 passed a ju­di­cial re­form bill that would ef­fec­tively halt many high-pro­file crim­i­nal cases, in­clud­ing ma­jor cor­rup­tion cases and those into crimes com­mit­ted dur­ing the EuroMaidan Rev­o­lu­tion that drove Pres­i­dent Vik­tor Yanukovych from power on Feb. 22, 2014.

It also made many other in­ves­ti­ga­tions im­pos­si­ble, crit­ics of the leg­is­la­tion say.

And third, Poroshenko has blocked the cre­ation of an in­de­pen­dent anti-cor­rup­tion court for more than a year. He tried to fi­nesse Western and pub­lic pres­sure on Oct. 4, ad­mit­ting that such a court was nec­es­sary, but adding caveats that make it ap­pear he is again stalling for time. Some peo­ple think that Poroshenko’s fo­cus is to make as few changes as pos­si­ble un­til the March 2019 pres­i­den­tial and par­lia­ment elec­tions.

Tainted court

The Pub­lic In­tegrity Coun­cil on Oct. 3 urged Poroshenko not to sign any Supreme Court judges’ cre­den­tials un­til courts rule on al­leged vi­o­la­tions that oc­curred dur­ing the Supreme Court com­pe­ti­tion, and un­til the High Coun­cil of Jus­tice and the High Qual­i­fi­ca­tion Com­mis­sion ex­plain why they re­jected the Pub­lic In­tegrity Coun­cil’s ve­toes on can­di­dates deemed cor­rupt or dis­hon­est.

The vi­o­la­tions of the High Coun­cil of Jus­tice and the High Qual­i­fi­ca­tion Com­mis­sion in­clude set­ting a third min­i­mum score for can­di­dates dur­ing the first stage of the com­pe­ti­tion, fail­ing to set a min­i­mum score for psy­cho­log­i­cal and so­cial test­ing, and re­fus­ing to pub­lish can­di­dates’ prac­ti­cal work and scores given un­der each cri­te­rion of in­tegrity and pro­fes­sional ethics, the civic watch­dog said.

The High Coun­cil of Jus­tice and the High Qual­i­fi­ca­tion Com­mis­sion have de­nied that they com­mit­ted any vi­o­la­tions.

The Pub­lic In­tegrity Coun­cil also

asked Poroshenko to ini­ti­ate an in­ter­na­tional au­dit of the Supreme Court com­pe­ti­tion and a re­struc­tur­ing of the High Coun­cil of Jus­tice and the High Qual­i­fi­ca­tion Com­mis­sion, which the watch­dog said have failed to re­store trust in the ju­di­ciary.

Cases stalled

Another con­tro­ver­sial mea­sure was the adop­tion by par­lia­ment on Oct. 3 of amend­ments to pro­ce­dural codes that make the func­tion­ing of the new Supreme Court pos­si­ble.

One of the amend­ments will make it im­pos­si­ble to in­ves­ti­gate many crim­i­nal cases, crit­ics of the leg­is­la­tion say. Due to the le­gal chaos sur­round­ing its adop­tion, its ex­act word­ing was un­clear as of Oct. 5.

Un­der the amend­ment, prose­cu­tors would have to file no­tices of sus­pi­cion for sus­pects in crim­i­nal cases within six months for grave crimes, and within three months for crimes of medium sever­ity. Oth­er­wise, such cases would have to be closed.

More­over, all cases must be sent to trial within two months af­ter a no­tice of sus­pi­cion is filed, ac­cord­ing to the amend­ment.

This clause was ini­ti­ated by Rad­i­cal Party law­maker An­driy Lo­zovy.

Sergii Gor­batuk, head of the depart­ment on in ab­sen­tia cases at the Pros­e­cu­tor Gen­eral’s Of­fice, said that Lo­zovy had a con­flict of in­ter­est in this case, be­cause the bill will let him es­cape prose­cu­tion him­self. Lo­zovy is sus­pected by the Pros­e­cu­tor Gen­eral’s Of­fice of evad­ing taxes worth Hr 1.83 mil­lion.

Gor­batuk also said that all on­go­ing EuroMaidan in­ves­ti­ga­tions would have to be closed be­cause of the bill.

“It’s im­pos­si­ble to in­ves­ti­gate com­pli­cated crimes, es­pe­cially cor­rup­tion and eco­nomic crimes, within such terms,” Vi­taly Shabunin, head of the Anti-Cor­rup­tion Ac­tion Cen­ter’s ex­ec­u­tive board, said on Face­book. “This kills anti-cor­rup­tion re­form and any le­gal re­spon­si­bil­ity for any se­ri­ous crimes.”

Shabunin said the clause would en­able the au­thor­i­ties to close cor­rup­tion cases against State Fis­cal Ser­vice Chief Ro­man Nasirov, ex-Peo­ple’s Front law­maker Mykola Mar­ty­nenko, and Cen­tral Elec­tion Com­mis­sion Chair­man Mykhailo Okhen­dovsky.

The Rean­i­ma­tion Pack­age of Re­forms urged Poroshenko to veto the amend­ments, and they were even crit­i­cized by In­te­rior Min­is­ter Arsen Avakov and Ana­toly Ma­tios, the chief mil­i­tary pros­e­cu­tor.

Lo­zovy dis­missed the ac­cu­sa­tions, say­ing that his clause will pre­vent de­lays in le­gal pro­ceed­ings and pro­tect peo­ple from ground­less charges.

End to trans­parency

Another amend­ment to pro­ce­dural codes al­lows judges to ban the film­ing of court hear­ings even in open tri­als, and to pre­vent vis­i­tors from at­tend­ing them if there are not enough seats. Crit­ics say this will deal a ma­jor blow to the ju­di­ciary’s trans­parency.

Re­formist law­maker Sergii Leshchenko said the amend­ments would in­crease court fees and make courts “a priv­i­lege for the rich.”

The amend­ments also give state ex­perts a monopoly on foren­sic ex­am­i­na­tions, and only a court would be able to au­tho­rize a foren­sic as­sess­ment. Shabunin ar­gued that this clause would al­low the au­thor­i­ties to con­trol and block foren­sic as­sess­ments.

More­over, the amend­ments ban the Na­tional Anti-Cor­rup­tion Bu­reau of Ukraine from fil­ing mo­tions with any other court than Kyiv’s Solomyan­sky Court, where the NABU is reg­is­tered. Crit­ics ar­gue that this is an ef­fort by the au­thor­i­ties to re­strict the NABU, since they sus­pect the gov­ern­ment has in­flu­ence over the Solomyan­sky Court judges.

Anti-cor­rup­tion court

Another cru­cial as­pect of ju­di­cial re­form is the cre­ation of an in­de­pen­dent anti-cor­rup­tion court, which would be ca­pa­ble of jail­ing cor­rupt of­fi­cials — some­thing the dis­cred­ited con­ven­tional courts have failed to do.

Poroshenko on Oct. 4 fi­nally caved in to pres­sure, and said that he would sup­port leg­is­la­tion to cre­ate anti-cor­rup­tion courts. Pre­vi­ously, he had re­sisted the idea, propos­ing so-called “anti-cor­rup­tion pan­els” at ex­ist­ing courts in­stead.

He sug­gested cre­at­ing an anti-cor­rup­tion court, an anti-cor­rup­tion cham­ber at the Supreme Court, and rep­re­sen­ta­tive of­fices of the anti-cor- rup­tion court in the re­gions, while at the same time hold­ing com­pe­ti­tions to choose anti-cor­rup­tion judges at lower-level courts in Kyiv.

“An anti-cor­rup­tion court should be cre­ated as the re­sult of a com­pe­ti­tion, with civil so­ci­ety’s over­sight,” Poroshenko said. “But it can­not be turned into a kind of po­lit­i­cal in­qui­si­tion, which some peo­ple are dream­ing about.”

Poroshenko pro­posed cre­at­ing a work­ing group and reach­ing a con­sen­sus be­tween the op­po­si­tion and the gov­ern­ment.

The cru­cial is­sue is whether the com­pe­ti­tion for an anti-cor­rup­tion court will be car­ried out trans­par­ently and in­de­pen­dently, or wheth-

er the process will be un­der the con­trol of the dis­cred­ited cur­rent es­tab­lish­ment.

Ac­cord­ing to a bill spon­sored by Leshchenko, Ye­gor Sobolev and other re­formist law­mak­ers, anti-cor­rup­tion judges will be ap­pointed through an open and trans­par­ent com­pe­ti­tion, with the par­tic­i­pa­tion of civil so­ci­ety and rep­re­sen­ta­tives from Western coun­tries. The judges would have higher wages and se­cu­rity guards to en­sure their in­de­pen­dence and safety.

Poroshenko, who dis­missed the op­po­si­tion bill as a “PR stunt” on Oct. 4, fa­vors a com­pet­ing bill sub­mit­ted by Ser­hiy Alex­eyev, a law­maker from the Poroshenko Bloc, on the cre­ation of anti-cor­rup­tion cham­bers.

Alex­eyev’s bill stip­u­lates ap­point­ing anti-cor­rup­tion judges at lower courts through com­pe­ti­tions that have been crit­i­cized by non-govern­men­tal or­ga­ni­za­tions as be­ing non-trans­par­ent.

Un­til such com­pe­ti­tions are held, in­cum­bent judges of Ukraine’s dis­cred­ited and cor­rupt ju­di­ciary will choose anti-cor­rup­tion judges from among them­selves, and this could con­tinue for a long pe­riod of time, ac­cord­ing to the bill. At ap­peal courts, there will be no com­pe­ti­tions at all, with anti-cor­rup­tion judges cho­sen by in­cum­bent judges.

Poroshenko’s crit­ics are skep­ti­cal about his re­cent state­ment on anti­graft courts, see­ing it as another ploy.

Shabunin said the work­ing group was a de­lay­ing tac­tic, while Leshchenko said Poroshenko would likely push for the com­pe­ti­tion for the anti-cor­rup­tion court to be held un­der the guid­ance of the High Coun­cil of Jus­tice and with­out for­eign ex­perts.

That would put the com­pe­ti­tion un­der gov­ern­ment con­trol, ren­der­ing it mean­ing­less, Poroshenko’s crit­ics ar­gue.

(Kostyan­tyn Ch­er­nichkin, Volodymyr Petrov)

The pho­tos show Lady Jus­tice out­side Kyiv’s ap­peals court and the gates to Ukraine’s Supreme Court. Many of the 11 newly ap­pointed justices are crit­i­cized for their marred bi­ogra­phies. The Pub­lic In­tegrity Coun­cil, a civic so­ci­ety watch­dog, ve­toed 25 of them on sus­pi­cion of cor­rup­tion.

(Volodymyr Petrov)

Anti-cor­rup­tion ac­tivists protest by the build­ing of High Qual­i­fi­ca­tion Com­mis­sion of Judges on March 1 de­mand­ing to pub­lish the pro­files of the can­di­dates for the Supreme Court. They wear the black robes of judges and black masks and the posters say­ing “It’s not your busi­ness” as a sym­bol of se­crecy of the process of choos­ing the judges. The 25 out of 111 judges ap­poined for Supreme Court on Aug. 29 had been ve­toed by the Pub­lic In­tegrity Coun­cil, a civic so­ci­ety watch­dog.

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