Western taxpayers’ money has been squandered on different useful or useless projects around the world, and they must have become accustomed to it.
Frankly speaking, why should Europe line the pockets of corrupt Ukrainian judges when there are many outrageous cases of the government in Kyiv wasting its own money? This should force the European Union to pay special attention to the bogus judicial reform that is currently going on in Ukraine.
Last year, Ukraine’s High Qualification Commission and High Council of Justice held a competition to create a new “reformed” Supreme Court. Members of the Public Integrity Council, the judiciary’s civil society watchdog, believe the competition was heavily rigged, and the only “reform” consisted in the court being brought under President Petro Poroshenko‘s control and an overwhelming majority of the corrupt old guard dominating the court.
Ukraine is now about to create an anti-corruption court along the same lines. Western donors have effectively agreed to conditions that will allow Poroshenko to create puppet anti-corruption court under his control. Foreign donors will not have the powers to select judges, and the flawed and arbitrary assessment methodology will remain the same as that for the Supreme Court.
Ukraine will, as a result, get another $2 billion tranche from the International Monetary Fund, which does not seem to care whether Ukraine’s anti-corruption court is independent or not. The compromise on the anti-corruption court comes exactly at the same time as the fake “murder” of Russian opposition journalist Arkady Babchenko in Kyiv on May 29 and his subsequent “resurrection” by Ukraine’s SBU security service a day later. The SBU claims the fake death was necessary to uncover a plot to kill Babchenko by the Kremlin. However, until unimpeachable evidence is provided – it looks like a publicity stunt by Poroshenko and his allies, further undermining the international credibility of the Ukrainian authorities.
Rigging the selection process
During the practical test stage of the Supreme Court competition, some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool of promoting political loyalists. The High Qualification Commission has illegally allowed 43 candidates who had not received sufficient scores during practical tests to take part in the next stage, changing its rules amid the competition.
Members of the Public Integrity Council believe that the rules were unlawfully changed to prevent political loyalists from dropping out of the competition. The High Council of Justice and the High Qualification Commission illegally refused to give specific reasons for assigning specific total scores to candidates and refused to explain why the High Qualification Commission has overridden vetoes by the Public Integrity Council on candidates who do not meet ethical integrity standards.
Moreover, the commission nominated thirty discredited judges who do not meet integrity standards (according to the Public Integrity Council) for the Supreme Court, and Poroshenko has already appointed 27 of them to the Supreme Court (out of 115 appointees). These judges have undeclared wealth, participated in political cases, made unlawful rulings (including those recognized as unlawful by the European Court of Human Rights) or are investigated in corruption cases. Newly-appointed Supreme Court judge Vyacheslav Nastavny participated in the politically motivated trial of Yury Lutsenko, then an opposition politician and now prosecutor general, under ex-President Viktor Yanukovych.
The case has been recognized as political by Ukrainian and European authorities. So now the ironic dilemma is: should Lutsenko be jailed again, or should Nastavny be kicked out of the court? Meanwhile, the new Supreme Court’s only deputy chairman is Bogdan Lvov. He is under investigation in a graft case against Pavel Grechkovsky, a member of the High Council of Justice – a body that appointed Lvov, which makes it even more absurd.
According to the investigators, Grechkovsky promised to help in a legal dispute with Lvov’s assistance for $500,000. Lvov is also under investigation as an alleged accomplice of ex-High Commercial Court Chairman Viktor Tatkov and his deputy Artur Yemelyanov, who has been charged with unlawfully interfering in the automatic distribution of cases as part of one of the largest corruption schemes under Yanukovych.
Not coincidentally, Lvov has worked at the same courts as High Council of Justice Chairman Igor Benedysyuk, a Poroshenko loyalist, during his whole career. Benedesyuk himself was simultaneously a judge of a Russian court-martial and a Ukrainian one in 1994, according to his official biography. This means he was a Russian citizen at the time, which is illegal for a Ukrainian judge.
Valentina Simonenko, who was nominated to the Supreme Court by the High Qualification Commission and the High Council of Justice, registered as a Russian taxpayer in Russian-annexed Crimea in 2015, according to the official register of Russia’s Federal Tax Service. This means she cooperated with Crimea’s illegal Russian occupation authorities.
Strangely enough, Western and European international organizations have sided with Ukrainian authorities, which rigged the Supreme Court competition, and not with the Public Integrity Council, which resisted the rigging. The European Union has a judicial reform project in the country – Support for Justice Sector Reforms in Ukraine, headed by EU Project Coordinator Dovydas Vitkauskas, who declined to comment. In one of his articles in 2017, Vitauskas praised the alleged openness and transparency of the Supreme Court competition.
Vitkauskas’ project has also been used to finance psychological tests for Supreme Court candidates. These have been criticized because they are essentially corporate loyalty tests that give more points to dependent candidates than to independent ones, which undermines the whole point of judiciary independence.
One of the candidates, Maxim Selivanov, dropped from the top of the ranking to the bottom because the psychological tests showed he had never had a boss before, said Vitaly Tytych, a member of the Public Integrity Council.
The European Union spent €8.6 million on Vitauskas’ project in 2014 to 2017.
In July, Poroshenko managed to trick European Commission President Jean-Claude Juncker, himself, who agreed with Poroshenko’s idea that Ukraine doesn’t need a full-fledged anti-corruption court.
Council of Europe
Meanwhile, the Council of Europe has given a grant to the Association of Lawyers of Ukraine, which has consistently lambasted the Public Integrity Council. Support for the Implementation of the Judicial Reform in Ukraine, a Council of Europe project, is headed by Andrey Kavakin. He has often sided with the High Qualification Commission against the Public Integrity Council. He claimed in 2016 that the Public Integrity Council had assumed more powers than stipulated by the law.
The general secretary of the Council of Europe, Thorbjørn Jagland, claimed that the Supreme Court had been appointed through a comprehensive procedure aimed at choosing the most professional candidates. Lithuanian-born Council of Europe expert Danutė Jočienė said in February that the Public Integrity Council has no right to criticize judges for issuing a specific ruling.
The Council of Europe declined to comment on the issue and did not give any information on its funding for judicial reform projects in Ukraine.
The OSCE’s view
Oleksandr Vodyannikov, a coordinator of the Organization for Cooperation and Security’s projects in Ukraine, said in an article last year that “a lot of candidates did not deserve (the Public Integrity Council’s) conclusions.” He also claimed that such candidates would be the “most honest” judges.
Vodyannikov argued that “the Supreme Court competition was unprecedentedly transparent.” Moreover, he claimed that there had been no rigging of the competition and said that “the High Qualification Commission complied with the clauses of the law on the judiciary and status of judges.”
Vodyannikov also lashed out at the Public Integrity Council, saying it has “no right to assess candidates’ specific court ruling but only a candidate’s judicial work as a whole.” He added that the council has conflicts of interest and must consider “making its ranks more ethical.” “Some approaches of the Public Integrity Council have superficial generalizations and are based on dubious sources of information,” Vodyannikov said without giving a single specific example.
Vodyannikov said he was not aware of the accusations against him.
“We did not provide financing for the process of selection of Supreme Court judges or to finance activities of the High Qualification of Judges in terms of performance of their duties,” he said.
Meanwhile, in June, the OSCE’s Office for Democratic Institutions and Human Rights backed Ukrainian authorities by suggesting that the Public Integrity Council be stripped of its right to veto judges deemed to be corrupt or dishonest.
In total, the OSCE spent €3.3 million on judicial reform-related projects in Ukraine in 2014 to 2017, including €762,900 in 2017.
Stopping the spending spree
How much more European taxpayers’ money has to be wasted to make them realise they are squandering it on fake reforms in one of the world’s most corrupt countries?
Western leaders must either cut the funding or set conditions that will make it impossible for Ukrainian authorities to fool them.
Such conditions include foreigners’ participation not only in vetoing but also in selecting Ukrainian judges and a completely fair and objective assessment methodology.