Ukraine’s attempt to reform law enforcement is failing miserably
More than four years after the EuroMaidan Revolution that drove President Viktor Yanukovych from power, not a single former or incumbent top official is behind bars in Ukraine.
The kleptocracy run by Yanukovych still has not been broken up.
Post-revolution law enforcement reforms, with the possible exception of the National Anti-Corruption Bureau of Ukraine, or NABU, have failed, anti-corruption and law enforcement experts argue.
And civil society, which had to re-focus its resources to Russia’s war against Ukraine, has not been strong enough to ensure the cleansing of the nation’s corrupt legal system.
The reasons are many: There are few reformers at the top of the political hierarchy, law enforcement cadres were often recruited by government loyalists, new people from outside the corrupt system were blocked from getting law enforcement jobs, and competition procedures were often unfair and manipulated.
“Corrupt bodies can’t cleanse themselves,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, told the Kyiv Post. “Public officials shouldn’t have the right to participate (in commissions for recruiting new cadres).”
NABU a success?
The only relatively successful reform was the creation of the NABU. But one success wasn’t enough: The rest of the system found ways to hamper the new agency’s work.
The commission for the appointment of the NABU’s top officials was chosen by the cabinet, the president and the Verkhovna Rada in 2014. However, public officials were banned from being commission members, and the commission came to be dominated by independent civil society representatives.
There was also one foreigner on the commission — Giovanni Kessler, the director general of the European Anti-Fraud Office.
A maximum number of people from outside the law enforcement system were eligible for the competition, Shabunin said.
"The competition for the NABU was probably the only fair one," he added.
As a result, the NABU has shown better results than other law enforcement agencies: it has not been afraid to take on top incumbent officials like ex-State Fiscal Service Chief Roman Nasirov, ex-People’s Front lawmaker Mykola Martynenko, and others. However, as an investigative agency, the NABU is dependent on the Special Anti-Corruption Prosecutor’s Office (SAPO). The prosecutors authorize NABU inves- tigators' actions and sign arrest and search warrants.
This dependency provided a tool to obstruct NABU.
How SAPO failed
The problems with the Special AntiCorruption Prosecutor’s Office are rooted in the way its members were selected.
The majority on the committee that appointed the leadership of the anti-corruption prosecutor’s office, which prosecutes cases investigated by the NABU, were appointed by the Verkhovna Rada in 2015, and a minority was delegated by the Council of Prosecutors.
Most commission members represented civil society, and there was one foreigner: U.S. prosecutor Mary Butler.
However, only prosecutors were eligible for jobs at the anti-corruption prosecutor’s office initially, although later non-prosecutors could also apply. As a result, almost all anti-corruption prosecutors now come from the old, corrupt prosecution service.
Hence the results: in April the NABU released audio recordings in which Chief Anti-Corruption Prosecutor Nazar Kholodnytsky is heard pressuring anti-corruption prosecutors and courts to stall cases, urging a witness to give false testimony, and tipping off suspects about future searches. Kholodnytsky confirmed that the tapes were authentic but said they had been taken out of context.
In July, Kholodnytsky's office also closed the embezzlement case against Interior Minister Arsen Avakov’s son, Oleksandr Avakov, and the minister’s ex-deputy Serhiy Chebotar despite massive evidence against them, including alleged video footage of them discussing a corrupt deal — which Chebotar called a montage.
How e-declaration failed
Another new body, the National Agency for Preventing Corruption, is tasked with checking officials' asset declarations.
Half of the commission that chose leaders of the National Agency for Preventing Corruption was appointed by the cabinet, the president and parliament in 2015, and the other half was delegated by civil society.
However, the procedure for choosing civil society representatives was compromised, with little-known NGOs that have little to do with fighting corruption nominating their candidates. As a result, Transparency International disputed the selection process in court.
“The leadership of the NAPC was chosen by a politically dependent commission, and it could not have chosen honest top officials of the NAPC,” Shabunin said.
The discredited agency has so far failed to punish a single top official for violations in their asset declarations. Hanna Solomatina and Oksana Divnich, ex-top NAPC officials, said in November that the agency was involved in large-scale corruption and was completely controlled by the Presidential Administration. The NAPC and the Presidential Administration denied the accusations.
An attempt to reform the Prosecutor General's Office by appointing new top local prosecutors in 2015 was also still-born.
The Prosecutor General’s Office delegated most members to the commissions for choosing top local prosecutors, and the rest of the members were lawmakers delegated by the Verkhovna Rada.
Then Prosecutor General Viktor Shokin also had an extra tool: he had a right to choose among the three candidates nominated by each commission.
As a result, 87 percent of the top local prosecutors chosen by Shokin turned out to be incumbent top prosecutors and their deputies, and no one from outside the prosecutorial system was hired.
The old, distrusted prosecution service was thus kept intact.
The creation of the patrol police, which replaced the Soviet-style corrupt traffic police in 2015, was more successful since civil society had significant influence on commissions that recruited officers.
However, the vetting of the police in 2016, which was supposed to cleanse the police force of corrupt, dishonest and incompetent officers, was also an aborted reform effort.
Commissions for the vetting of police were dominated by Interior Ministry representatives.
Representatives of civil society were initially a minority in some of the commissions, but the most prominent civil society groups withdrew in June, saying that Interior Ministry officials were blocking the reform, which was denied by the ministry. They also said the ministry was using police-friendly NGOs to promote its interests on the commissions.
“In May 2016 Avakov’s advisors took over the vetting process, and it was controlled by the Interior Ministry completely from then on,” said journalist Olga Khudetska, who was a member of one of the commissions.
Eventually, only 5,656 police officers, or about 6 percent of the police force, were fired as a result of the vetting procedure. And of these, many have been reinstated by Ukraine's notoriously corrupt judiciary.
The State Investigation Bureau, which is currently being set up, is expected to take all investigations away from the Prosecutor General's Office.
The commission for choosing the State Investigation Bureau’s leadership was appointed by the Verkhovna Rada, the president and the Cabinet in 2016 and was made up mostly of politicians.
One of the commission’s members, People’s Front lawmaker Yevhen Deidei, was sentenced to a 5-year suspended prison term for banditry, battery and robbery in 2012. He declined to comment on the sentence.
"How can lawmakers prosecuted in criminal cases select the leadership of a law enforcement body?" Shabunin said.
Oleksandr Lemenov, a Reanimation Package of Reforms expert who monitors the State Investigation Bureau, has argued that the selection of the bureau’s leadership had been rigged in favor of government loyalists. The bureau denied the accusations.
However, in September State Investigation Bureau Chief Roman Truba effectively admitted that the selection process was compromised and rejected 27 tainted candidates for bureau jobs, saying that some of them were suspects in criminal cases. Lemenov said, however, that Truba had appointed other tainted candidates.
Meanwhile, in 2017 a new Supreme Court was created by the High Qualification Commission. Most of the commission was appointed by the Council of Judges, and civil society is not represented at the commission.
The Public Integrity Council, the judiciary's civil society watchdog, said in October that it had “grounds to assume that the (recent Supreme Court) competition was rigged” by the High Qualification Commission so that it would appoint politically loyal candidates. The commission denied the accusations.
During the Supreme Court competition, 210 scores were assigned for anonymous legal knowledge and practical tests, and the High Qualification Commission could assign 790 points out of 1,000 points without giving any explicit reasons.
The Public Integrity Council believes the assessment methodology is entirely arbitrary and subjective, which allowed the authorities to appoint political loyalists to the court. The High Qualification Commission denies the accusations.
To make the competition’s criteria objective, 750 points should be assigned for anonymous legal knowledge tests and practical tests, Vitaly Tytych, a member of the Public Integrity Council, has argued.
Of the 120 Supreme Court judges who were appointed, thirty were vetoed by the Public Integrity Council because it believes they do not meet integrity and professional ethical standards. However, the vetoes were overridden by the High Qualification Commission, and they were appointed.
The same fate may befall the ongoing competition for the High Anti-Corruption Court.
Under the law, the Public Council of International Experts — a foreign advisory body — can veto candidates for the court.
However, if the High Qualification Commission arbitrarily chooses exclusively political loyalists, it will not matter who is vetoed since the remaining candidates will also be loyalists, Tytych told the Kyiv Post.
Hanna Solomatina, ex-head of the National Agency for Preventing Corruption's department for financial monitoring (C), and Oksana Dyvnych (R), ex-head of NAPC’s internal audit unit, attend a meeting of parliament's anti-corruption committee on Nov. 15. (Volodymyr Petrov)