Ukraine takes two steps ahead and one step back in the fight against corruption

President Volodymyr Zelenskyy is adamant that his country's future belongs in the EU, but he is under pressure to change the Constitutional Court.

Even if the Russians invade your country, the clock does not stop when it comes to cleaning up corruption and bringing the judiciary up to EU convergence standards.

With the EU poised to release reports on Kyiv's progress in March and October, Ukraine's development on rule of law is faster than predicted, but it's a case of two leaps forward and one (very scary) foot back.

For Ukrainian President Volodymyr Zelenskyy, who has said that his country's "future belongs in the EU," maintaining momentum is critical, especially given that Kyiv's membership faces opposition from established EU countries whose powers would be weakened by such a large new member. France's President Emmanuel Macron stated in May that Kyiv is "in all likelihood decades" away from joining the EU, and Western European countries are always concerned about insecurity, corruption, and the cost of rebuilding a war-torn nation.

Ukraine is presently moving fairly swiftly in this environment. With the appointment of a new chief prosecutor, the fight against corruption has gained momentum, with many high-profile cases eventually concluding in sentences. The Ukrainian parliament also abolished the Kyiv Administrative District Court, known as Ukraine's most corrupt court.

On the downside, there is rising anxiety about the Constitutional Court, which has supreme legal authority and can overturn government decisions. A proposed change threatens to allow political influence in a body that would screen candidates for judicial positions. This could be a big impediment to Ukraine's European aspirations. The European Commission and the Venice Commission, a Council of Europe advising body on constitutional law, have both issued warnings.

Ukraine's most corrupt court is being closed down.

The dissolution of Ukraine's Kyiv Administrative District Court is largely regarded as one of the most beneficial milestones in the fight against corruption, although it was not without difficulty.

Zelenskyy made the bill to abolish the court a priority in April 2021. The Ukrainian parliament, on the other hand, did so only four days after the US Department of State sanctioned its chairman, Pavlo Vovk, for seeking payments in exchange for meddling in judicial and other public processes.

According to Mykhailo Zhernakov, chairman of the board of the Dejure Foundation, a nongovernmental group working on judicial reform, the US sanction on the court's chief judge was the final straw.

However, Vovk's resignation was also the result of tremendous pressure from Ukrainian civil society organisations that exposed the court's wrongdoings and anti-corruption organisations that probed its key judges.

The National Anti-Corruption Bureau of Ukraine (NABU) released the so-called Vovk tapes in 2020, which revealed a large number of fake lawsuits, unlawful rulings, and pressure by Vovk on judges and officials, as well as wiretaps of both Administrative Court judges and top lawyers in connection with a criminal case against Vovk.

“What made the Kyiv Administrative District Court so powerful was its unique jurisdiction that covered not only local authorities of Kyiv, but also all the government bodies located in Kyiv. And that means all government bodies,” Zhernakov said. “That broad jurisdiction gave them an enormous concentration of power. And that is why it must be divided with the creation of the new administrative court.” 

Following the release of the tapes by local investigative journalists, the public gained insight into huge obstruction of justice and bribery at the highest levels. To this day, all of the judges and officials identified on the tapes deny their legitimacy.

Vovk himself described the court's dissolution as a "hurried decision" by parliament, made in response to pressure from "certain activists and lobbyists groups." In contrast, British Ambassador Melinda Simmons hailed it a "wonderful day for judicial reform."

The accusations against Vovk, according to Rostyslav Kravets, a lawyer defending numerous Ukrainian judges, were entirely false, and the court reform was "supported by foreign forces."

Activists and Ukraine's international partners have frequently stated that foreign specialists should ensure transparent competition for appointments in Ukraine's judicial system, which is heavily influenced by political connections, but Kravets resented the international criticism.

“This is wrong. Can you imagine me coming to London to help them elect judges?” Kravets said. “Europe has been trying to sell the idea that all judges in Ukraine are criminals, who take bribes. That forced many to leave their posts or rule in favor of unlawful decisions.”

Another move onward

The appointment of Oleksandr Klymenko as the lead anti-corruption prosecutor was the second big step forward.

The notorious Kyiv Administrative District Court banned the appointment of the former NABU anti-corruption detective in 2021. Klymenko rose to prominence after probing a bribery case involving another high-ranking official in Zelenskyy's administration: Oleg Tatarov, deputy head of the president's office. Despite the fact that Tatarov was charged with bribery, his case was transferred from the authority of independent anti-corruption agencies to Ukraine's security agency. The case died not long after that.

Tatarov openly promised to establish his innocence, claiming that the prosecution against him was a personal vendetta by Artem Sytnyk, the NABU's then-head.

After nearly two years of stalling and intense pressure from international partners, Klymenko was appointed as the new director of the Special Anti-Corruption Prosecutors Office in July of this year. "Independent anti-corruption infrastructure is a vital component of democracy in Ukraine," President Andriy Yermak said in a statement on Klymenko's appointment.

Several graft probes have been cleared since Klymenko took office, with former top officials ending up in courts, pre-trial detention camps, or paying fines.

The significant step back

On the same day that Ukraine abolished the administrative court, it made a critical error in revising its crucial Constitutional Court.

On December 13, Ukraine's parliament approved a measure to overhaul the Constitutional Court, although watchdogs warned of the possibility of political involvement in the appointment of justices under the new system.

The new method creates an advisory panel of three government officials and three independent experts, each of whom has the equal number of votes when it comes to selecting judges. They would select candidates with a simple majority vote. The group's judgement is also not final, so candidates who did not pass the review can still run for Constitutional Court seats.

The Venice Commission proposed modifying the current statute and adding a seventh member to the advisory committee to provide the independent experts a casting vote during the selection process on December 19. It also suggested making the advisory group's judgements binding, making it impossible for candidates who received bad ratings to become Constitutional Court judges.

However, on his way from Bakhmut to Washington the next day, Zelenskyy signed the bill into law, defying the Venice Commission's suggestion.

"Simple majority voting" indicates that independent experts will need the votes of government political appointees to advance a candidate to the next stage. "With these limitations, the advisory group will be unable to get independent candidates through," said Zhernakov of the Dejure Foundation.

Reformists in Ukraine require external pressure.

Ukrainian civil society organisations urged international allies to maintain their pressure on the Constitutional Court revision. According to Zhernakov, as a result of the Russian invasion, several foreign partners are now avoiding public criticism of Kyiv in order not to play into the hands of Russia or Ukraine's detractors in the EU.

“Due to Zelenskyy’s well-deserved popularity, international partners prefer not to criticize Ukraine as harshly as they did before as they don’t want to undermine him in any way during active warfare. But there has to be a red line,” Zhernakov said.  

The European Commission eventually weighed in on December 23. Ana Pisonero, enlargement spokesperson, stated that the Commission expected Ukrainian authorities to fully implement the Venice Commission proposals and would monitor the process.

The head of the Anti-Corruption Action Center, a Kyiv-based watchdog, Vitaliy Shabunin, said in a statement that if not amended, the new selection system will give the president's office effective influence over the Constitutional Court. The White House did not reply to a request for comment on this story.

“This is a fantastic risk. The Constitutional Court is the only institution that currently limits political power in the country. And precisely because it is not controlled by the government, it can control the government,” Zhernakov said.

In a sign of the Constitutional Court's prominence, it sparked a crisis in 2020 by ruling that some aspects of Ukrainian law were unconstitutional. That ruling ended public access to electronic asset statements as well as criminal penalties for lying in electronic declarations. According to the National Agency for Corruption Prevention, these amendments effectively halted Ukraine's battle against corruption. The Venice Commission attacked the court's ruling, and international society condemned it.

More than a thousand officials evaded responsibility for lying in declarations, and only the efforts of the authorities and the public allowed the threat to the anti-corruption apparatus to be neutralised.

With the assistance of Zelenskyy, civil society and international allies were able to clean up the Constitutional Court and other top judicial bodies. And the court's former chairman fled abroad.

When questioned why Zelenskyy had now approved such a contentious measure, Zhernakov stated that while the Ukrainian government has worked hard to move Ukraine closer to the EU, there are still some in the president's office who are resistant to change.

“And while Zelenskyy is in Bakhmut or in the U.S., they are slipping in things like this. Because they want to keep control over the key legislative institutions,” Zhernakov said.  

Civil society is preparing to fight back, while the space for criticism is currently constrained due to the conflict. According to Zhernakov, the concern is that Russia would wrongly use criticism of the Constitutional Court to portray Ukraine as an undemocratic and corrupt country.

“Usually, Russian propaganda is baseless and can be refuted with simple fact-checking. But when instead of EU integration reforms the authorities sign the laws like the Constitutional Court one, they give not just a weapon, but a HIMARS to Russian propaganda,” Zhernakov said.

By fLEXI tEAM