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 Anti-Corruption 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 establishment of a separate body that runs under well-regulated, transparent selection procedures and public scrutiny.
4. “Anticorruption courts can become obsolete in the event of a successful judicial reform and the purge of the judiciary.”
Anticorruption courts do play a critical role in the transition stage. However, a real judicial reform should aim to cleanse the judiciary and select new, competent, and impartial judges. Currently, this part of judicial reform is failing. The majority of new Supreme Court justices came from the same system, many with dubious reputations, and their declared assets were not adequately verified. The completion of judicial reform does not necessarily purify the judiciary or ensure its independence.
5. “The track record of the new anticorruption bodies has proved their ineffectiveness. Therefore, an anticorruption court will also be ineffective.”
As of June 30, NABU was pursuing 371 criminal cases, 121 individuals had been indicted, and 78 criminal proceedings had been handed down by the court. But the investigations conducted by NABU are hampered at the trial stage, since most investigations require court authorization to begin. But the courts are the weakest link in the fight against corruption. Forming the new anticorruption court is the obvious and logical next step.
The establishment of anticorruption courts could help complete the investigation of corruption cases and prosecute those responsible, including those big fish that have eluded prosecutors. A lack of results in the courts, the unprecedented resistance of official Kyiv and the Indonesian experience inspire me to fight for this approach in my country and give the ideals of the EuroMaidan Revolution a chance to finally be realized.
Olena Sotnyk is a member of Ukraine’s parliament and an attorney in Kyiv. She tweets @LenaSotnyk. This essay was translated from Ukrainian to English by Vera Zimmerman and is reprinted with the author’s permission.
With President Petro Poroshenko blocking the creation of an anti-corruption court and 80 percent of the new Supreme Court coming from the ranks of corrupt and discredited judges, Olena Sotnyk has scant hope for the justice that Ukrainians crave.
That’s why the 34-year-old Kyiv lawyer is focusing her influence, as an opposition member of the 26-member Samopomich Party, on three priorities: Election reform, building a stronger middle class of voters and public TV. All three initiatives have a common denominator: They are aimed at reducing the influence of Ukraine’s oligarchs on the 2019 presidential and parliamentary elections.
But in the short run, she admitted in an interview on Sept. 18 with the Kyiv Post, the situation looks bleak in terms of advancing the nation’s judicial or law enforcement systems past their Soviet legacies of corruption and political subservience.
While legislation to create an independent anti-corruption court was adopted a year ago, Poroshenko and other powerful interests have blocked its creation, she said.
The reason is simple.
‘They are afraid’
“Of course, they are afraid it can be independent, qualified and rather transparent,” Sotnyk said. “We’ve been waiting for three years to see a result. If there would be any opportunity and capability of Ukrainian courts to take decisions and issue verdicts, we would see at least one or two or three. There are no results concerning this high-level corruption. It means there is no capacity and there is no will, and we are not going to get any verdicts.”
Poroshenko says that he “has no time” to wait for the creation of an anti-corruption court, noting that choosing a new Supreme Court -- a process still under way -- has taken 18 months. He also said that no other nations, except for a few poor African or Asian ones, have anti-corruption courts. Those were Poroshenko’s arguments earlier in September to members of the European Business Association and the American Chamber of Commerce in Ukraine. He repeated them at the opening of Victor Pinchuk’s 14th annual Yalta European Strategy conference on Sept. 15, 2017, in Kyiv.
But Poroshenko got a quick rebuke from John Kerry, the ex-U.S. senator and ex-secretary of state, who said that “in my nation, every court is an anti-corruption court.” The EuroMaidan Revolution that drove President Viktor Yanukovych from power on Feb. 22, 2014, “cannot be betrayed by business as usual which does not move on the issue of corruption,” Kerry said. “I think it’s vital for Ukraine to grab ahold of the moment. It’s not too late, but the decisions made here will help us to be able to defend the future of Ukraine that people have staked their lives for.”
But with Poroshenko unwilling to tolerate an independent judiciary, the president’s re-election in 2019 will bring “no changes” in this area.
“It’s the feeling we are not just going into the wrong direction, but that we are going to stay alone,” Sotnyk said. “Nobody is going to support Ukraine when the head of the country doesn’t want to do anything and is lying. Sorry, but it’s a lie to say the anti-corruption court is not going to work if you’re not even trying. It’s a matter of protecting his power or influence.”
Beyond the problems of a new 120-member Supreme Court that is not expected to be much different from the old, and the failure to set up an independent anti-corruption court, Sotnyk is worried that anti-corruption agencies established in recent years will stop working altogether.
She has in mind the National Anti-Corruption Bureau of Ukraine, the Special Anti-Corruption Prosecutor’s Office and the National Agency for the Prevention of Corruption. Aside from those three agencies, Sotnyk noted that the State Investigative Bureau -- created to take criminal investigative powers away from the General Prosecutor’s Office -- is not working yet. Already, NABU head Artem Sytnyk has publicly said it’s useless to keep bringing corruption cases to court when judges won’t accept them or hear them fairly.
Blocking corruption fight
Undermining the corruption fight is the goal of the Presidential Administration and Ukraine’s top oligarchs, she said.
“It’s one of the main goals of the oligarchic groups and Bankova (Poroshenko’s office),” she said. “In this case; there will be nobody who will resist or fight with high-level corruption, so they can feel free.”
Sotnyk thinks the minority of clean judges on the new Supreme Court will not be able to resist the pressure of the majority of distrusted judges. She lost faith in the selection process after results of the written examinations were made secret. “This written test was closed, so you will never know who was good in this test and who failed,” she said. “It’s totally controlled from very beginning to end.”
The best chance for the establishment of a genuine anti-corruption court, she said, rests with pressure from Western backers, a minority of reformers like herself in parliament and public pressure. That combination has helped achieve other reforms stalled by Poroshenko, including e-declarations of public officials’ financial assets and a lustration law to remove Yanukovych-era and other corrupt officials from public service.
But to win public pressure from Ukrainians, she said, politicians will have to do a better job of explaining the connection between a successful anti-corruption fight and the financial well-being of people.
She also said she hopes the Western lending institutions, the International Monetary Fund and others, will insist on the anti-corruption court.
If Poroshenko stops obstructing the process, she said, such a court could be up and running in a matter of months. She can think of at least a dozen qualified judges for such a court. “It is possible within eight months, maximum one year,” she said. “We can put it in the 2018 budget now.”
Sotnyk’s displeasure with Ukraine’s legal system extends to Prosecutor General Yuriy Lutsenko, who commands 15,000 prosecutors, and Interior Minister Arsen Avakov, who oversees 150,000 people in the National Guard and police.
“He needs to focus on the most serious crimes against the state,” Sotnyk said of Lutsenko.
Instead, the prosecutor general -- who is not a lawyer or a prosecutor by training or education -- behaves more like a politician, she said. He was appointed by Poroshenko on May 12, 2016 after international pressure forced the president to finally fire Viktor Shokin, Lutsenko’s predecessor, who obstructed the anti-corruption drive.
However, Lutsenko kept most of Shokin’s people in place.
“He is trying to focus on well-known figures and well-known surnames and to show results in very famous cases, like the case on Yanukovych,” Sotnyk said. “He’s posting on Facebook, where he’s giving the results before any judges, before any court procedures, before anything, like he’s the court of the last instance.”
The prosecutor general “should first of all be a lawyer,” she said, one reason why “nothing has changed” in the work of prosecutors since the EuroMaidan Revolution.
Many people think that the second most powerful person in the nation is Interior Minister Arsen Avakov, who is politically aligned with ex-Prime Minister Arseniy Yatsenyuk and the second largest faction in parliament, the 81-member People’s Front.
Avakov is seeking to expand the powers and his oversight over the National Guard, so that they have both military powers and police enforcement powers. Sotnyk opposes such a move.
“We have only one reform -- patrol police,” Sotnyk said. And even this change, in which salaries of patrol officers were raised to roughly $500 a month and they were given new cars by foreign donors, is not enough.
The reason, she said, is that criminal investigations are being performed by the old police guard, who are still underpaid and corrupt.
“Talking about all the others, we saw no reforms at all. Nothing. We have a huge problem with the criminal police, which is the main core of the department,” Sotnyk said. “Many of them make less than $200 a month, which is, if not an invitation for corruption, then an excuse not to do their jobs. They are not motivated at all,” she said. As a result, no criminal investigations of any consequence are carried out, she said.
Avakov also wants to remain as one of the most powerful people in the nation.
“It’s about control, it’s about influence,” she said of the balance between the forces of Avakov and Poroshenko, whose bloc in the 422-seat parliament is the most numerous with 135 members. The president controls the army, the Security Service of Ukraine, prosecutors, and judges, while Avakov controls the National Guard and police.
She said that she supports Finance Minister Oleksandr Danyliuk’s proposal for an elite state Financial Investigative Service to tackle big and complicated white collar crimes, such as bank fraud. But again, Sotnyk said, many ministers are competing over who will control the new agency.
Looking ahead, she said, she and like-minded members of parliament face a big public education campaign. “We need to make this linkage of anti-corruption fighting at the highest level with their prosperity, with their lives each day,” Sotnyk said. “Otherwise I am afraid Poroshenko is not going to pay any political price.”