Ukraine’s at­tempt to re­form law en­force­ment is fail­ing mis­er­ably

Kyiv Post - - Na­tional - BY OLEG SUKHOV SUKHOV@KYIV­POST.COM

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.

Pros­e­cu­tion ser­vice

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.

Po­lice re­form

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.

Ukraine's FBI

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.

Ju­di­cial re­form

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)

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