Olena Sotnyk: How to finish the revolution in Ukraine
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)