The Ukrainian judiciary has gone through several reform processes during the last six years. Nevertheless, it probably remains the least reformed field. Former President Petro Poroshenko failed to rid Ukrainian courts of corrupt judges and recently had to face them himself when prosecuted by the new government. Coming to power in 2019, President Volodymyr Zelenskyy also launched judicial reform initiatives which were partly supported by civil society. However, they did not fix the critical underlying issues.
In June 2020, Zelenskyy introduced another bill on the judiciary. Experts criticized the bill, calling it an imitation of reform. Their main grievance was that it did not fulfill the key requirement for improving the state of Ukrainian courts, namely to reboot the bodies of judicial self-governance and to change the principles of their formation. The first days of July were to see a consideration of the bill. However, the Voice party managed to have it removed from the agenda for the purpose of revision.
While on the legislative level, the fight for a fair judiciary is ongoing in Parliament, Ukrainian courts continue to have more and more scandals.
A plethora of political cases
The picture above is drawn by Yuliya Kuzmenko – a pediatric surgeon and volunteer who has been detained for more than half-a-year as a suspect in the 2016 murder of Belarusian-Ukrainian journalist Pavlo Sheremet. She drew it while in jail and gave it together with a statement of support to the lawyer of Odesa corruption fighter Serhiy Sternenko, prior to the appeal hearing on his case.
“The torch is passed to you. I drew this picture while following your kangaroo court[…]. Loneliness and the feeling of a spreading wildfire. Well, the system is going into a nosedive with suicidal stubbornness, throwing innocent people in jail or house arrest, making mistake after mistake. And then they say that we are destabilizing the country. Stay firm, and give ‘em hell in the courts, you do it well!”
Kuzmenko’s prosecutors have never provided convincing evidence to prove her involvement in the assassination. However, the courts still ruled in favor of her detention, dismissing all the arguments of her defense team. Sternenko, who survived three armed attacks and killed one of the attackers while defending himself, has now been charged with intentional homicide. The judge in this case also sided in favor of the prosecution, ignoring all arguments by the defense and ruling to place the activist under a 60-day house arrest.
Judges with tainted reputations considering case of corruption fighter Sternenko
Justice Volodymyr Buhil, who presided over the case on choosing a measure of restraint to Sternenko, has a dubious background.
He is one of the judges who — in connivance with the regime of disgraced ex-President Viktor Yanukovych — ruled to prosecute peaceful, anti-government protesters during the 2014 Euromaidan Revolution.
Buhil’s other commonly-known transgressions were to conceal his actual wealth when declaring his assets; falsely claiming he was attacked; and acquitting a defendant charged with a $500,000 bribe where he had a clear conflict of interest. Sternenko’s defense filed a motion to recuse the judge, but it was rejected.
The appeal of the decision on Sternenko’s house arrest fared no better: the court upheld the original ruling on his 60-day house arrest. The presiding judges had also been previously implicated in scandals.
As the DEJURE Foundation, an NGO advocating for effective judicial reform writes, judge Valeriy Lashevych helped Dmytro Sadovnyk, the ex-deputy of the Berkut law enforcement unit that was accused of involvement in killing 39 Euromaidan protesters, to escape from prison.
Sadovnyk had been confined to prison prior to September 2014 when the court changed his measure of restraint to night-time house arrest. The prosecutor appealed the decision.
However, the board of judges, headed by Lashevych, postponed the hearing no less than four times due to Sadovnyk’s alleged illness. The eventual hearing lasted two weeks. During this period Sadovnyk managed to escape.
Judge Ivan Rybak also served as a member of the board in Sadovnyk’s appeal, allowing him to escape; and he considered the case on Sternenko’s appeal, leaving the stringent round-the-clock house arrest measure in place.
The judges actually have a long history of politically motivated decisions: back in 2012, both Rybak and Lashevych were involved in the political prosecution of Yuriy Lutsenko, former Minister of Internal Affairs in the government of Yuliya Tymoshenko. Later, the European Court on Human Rights determined that the rulings made by Rybak and Lashkevych were in violation of human rights.
As later recorded by the DEJURE Foundation, another judge in Sternenko’s appeal, Mykola Yashchenko, was censured for not registering a house and land property in his declaration of assets.
That Sternenko’s case is considered by a set of judges with dubious reputations is not surprising. This usually happens when cases turn into political ones.
The infamous judge Serhiy Vovk
When the Sheremet assassination suddenly confronted Yuliya Kuzmenko, it was judge Serhiy Vovk who heard her case. Vovk — who is one of the most scandalous judges in Ukraine — led the court hearings regarding all three suspects in Sheremet’s case. In addition to Kuzmenko, the other two named suspects were musician Andriy Antonenko and airborne battalion nurse Yana Dugar.
The most notorious indignity by Vovk occurred in 2012 when he convicted the above mentioned ex-Minister of Internal Affairs Yuriy Lutsenko to four years in prison for an “illegal” celebration of the day of police. Criminal proceedings were underway against Vovk himself.
Ironically, six months after the first hearings on Sheremet’s case, it is Vovk who presided over recent charges against Poroshenko.
In the face of all of this, how is it possible that such clearly corrupt judges such as Lashevych, Rybak, Yashchenko, and Vovk continue to preside within the judicial system?
Who keeps corrupt and compromised judges in the system?
“No Ukrainian president could ever imagine a fair trial, therefore all the known judicial reforms had a particular aim: to preserve control and influence over the judiciary. Dear presidents, look in the past and you’ll see the fruits of your desires,” writes Roman Brehey, a Kropyvnytskyi judge who is credited with a spotless reputation.
Maintaining control over the judiciary has always been done by keeping “loyal” judges who were ready to render decisions based on politics in the system. [highlight]In turn, these “loyal” judges were created through the bodies of judicial self-governance: the High Qualification Commission of Judges and the High Council of Justice. [/highlight]The two bodies themselves were one-half comprised of judges elected by judges.
Such a system creates an obvious conflict of interest since ex-judges will typically back the colleagues who elected them.
However, both Poroshenko’s and Zelenskyy’s reforms failed to achieve this end.
Initially, Zelenskyy supported the reboot of the two bodies. So did his party, Servant of the People. However, the promises and actions of the president and his party changed dramatically.
Mykhailo Zhernakov, head of the DEJURE Foundation Board, and Stepan Berko, the board’s advocacy manager, outlined exactly why this changed in an article published in Ukrainska Pravda:
“Those who control the High Council of Justice control every judge. For years the Council served only the interests of politicians and oligarchs – they systematically persecuted independent judges and vice versa, and kept the dishonest ones in their positions.”
Failure to reboot the High Council of Justice
This body can recommend a judge for appointment; to bring or not bring judges to justice; or even dismiss them.
The plan had been to reboot the council members and to involve international experts in the selection process, which would have resulted in the majority of council seats held by actual representatives of society.
However, in reality, no legislative initiative in Parliament has taken the reboot into account. Instead, MPs have envisaged the establishment of an Ethics Commission, half of which would consist of international experts and the other half of the Council of Justice. The latter body refused to take part in the Ethics Commission and sabotaged implementation of the law.
Zhernakov and Berko stress that the power to execute the reform was also invested in the same Council of Justice which failed its previous stages.
Failure to reboot the High Qualification Commission of Judges
The High Qualification Commission of Judges holds the responsibility for conducting competitions for judicial positions, as well as for their attestations.
In November 2019, Parliament supported a law that foresaw the potential dismissal of commission members. The new cadres should have been elected with the participation of international experts.
However, the High Council of Justice blocked an open competition and then adopted provisions for the competition which precluded the role of international experts. As a result, the experts refused to participate and the High Council of Justice used that excuse to blame them for the failure.
Safeguarding their colleagues – a priority for judges
Today, Ukraine’s judiciary provides many examples that demonstrate how safeguarding colleagues is a high priority for judges.
For example, in June, the Constitutional Court of Ukraine made a decision to cancel Article 375 of the Criminal Code that holds judges accountable for their deliberate unlawful rulings. The Court has allowed Parliament half-a-year to change the regulation established by the article. If not revised by that time, the article will expire.
Experts warn that deleting this article will lead to the closing of hundreds of criminal proceedings against the so-called Maidan judges.
- Banning peaceful assemblies
- Convicting activists for alleged violent resistance to law enforcement officers
- Alleging violation of orders for peaceful assembly
- Using false documents to withdraw driving permits
- Sentencing protesters, then launching investigations against them
However, even before the ruling came into force, Ukrainian courts saw another scandal erupt relating to a Maidan judge.
On 30 June, the court vindicated judge Oksana Tsarevych who had been accused of depriving the Automaidan movement activists of driving licenses during the Euromaidan Revolution. The court determined that the evidence of the case was not consistent with a guilty verdict for Tsarevych. Moreover, it recognized Tsarevych’s claim that the Automaidan movement did not exist at all, since it was not officially registered.
Roman Maselko, Automaidan member and lawyer, argued that the Office of the Prosecutor did not call the key witnesses for the hearing. These were court personnel who intervened in the automated system that selected which victims’ cases came before Tsarevych.
Why is the new bill controversial?
Judicial experts have termed Zelenskyy’s proposed legislation as a bill on “fake judicial reform” that will not, by far, fulfill the basics for true reform. The bill will not compel rebooting the High Council of Justice and thus controverts the requirements of the International Monetary Fund (IMF).[highlight]Instead, the High Council of Justice will be given full control over the reform. [/highlight]
The leading NGOs in the judicial field called upon Parliament not to pass the bill until it is revised with the involvement of international experts together with those of civil society. The NGOs also called upon MPs to make provisions for the removal of dishonest members from the High Council of Justice. They are also insisting on a new procedure for the selection of incoming members, again engaging international and civil society experts.
After the president’s bill was taken off the agenda, MPs of The Voice prepared an alternative bill corresponding to the requirements of civil society and the IMF. On 15 July, the Parliament’s Legal Policy Committee declined the bill, supporting the President’s one which in fact is faking the reform.