Zelensky's reform risks dissolving notorious court but leaving judicial corruption intact

Ukraine’s President Volodymyr Zelensky has put forward draft bills formally aimed at dissolving a court notorious for multiple eyebrow-raising rulings and for high-level judicial corruption scandals.  There have long been calls for the President to do just this, however, as the bills now stand, the District Administrative Court in Kyiv (OACK) may end up dissolved in name alone.  This was categorically not why almost 26 thousand Ukrainians signed a petition in the second half of 2020, demanding the court’s dissolution.   

Two bills were tabled on 13 April 2021.  No. 5369 is on dissolving the District Administrative Court in Kyiv and creating the Kyiv City District Administrative Court, while No. 5370 proposes amendments to the section on transitional provisions of the Law on the Justice System and the Status of Judges.

The DEJURE Foundation issued a statement following the publication of the two bills. These, it says, formally meet the stated aim and will suspend the stamping of wrongful rulings by OACK.  The latter will be dissolved, with it being replaced by the Kyiv City District Administrative Court. The bills propose that OACK would lose its power to exercise justice from the moment the passed laws are published, a step which the DEJURE Foundation welcomes.  This, they say, would mean that Pavlo Vovk, the current president of OACK and main figure in the corruption scandals, as well as his people, would immediately lose any power to issue further rulings.

Not for long?

At present, unfortunately, the bills appear to propose little more than a change in name.  There is nothing about what should happen to the current OACK judges, with this meaning, DEJURE says, that in accordance with usual procedure, the judges would simply be transferred to the new Kyiv City District Administrative Court.  This would be automatic, meaning no competition for the posts and no checks carried out of the judges’ professional integrity.   The new court would also retain all of the exclusive jurisdiction in examining disputes involving the central authorities which is now enjoyed by OACK.  This has ignored the Memorandum signed with the International Monetary Fund which envisages that some of these powers be passed to the Supreme Court or any other court. 

All of this means, Stepan Berko from DEJURE notes, that the current president of OACK, “Pavlo Vovk and his dodgy colleagues would retain their present influence on the judiciary.”  While broadly welcoming the President’s initiative, the DEJURE Foundation is therefore calling on MPs to ensure that the risks which the bills now pose are eliminated.

It is to a large measure due to Vovk and his people that OACK has lost any credibility or public trust and why the above-mentioned petition was initiated since only the President is able to table a bill to dissolve the court.   

The petition was initiated by journalist Danylo Mokryk on 30 July 2020., following publication by the National Anti-Corruption Bureau [NABU] of yet more compromising conversations in Vovk’s office. Mokryk wrote that each day that OACK continues its existence, was another day in which a mockery was being made of the justice system in Ukraine.  The petition should force the President to finally take the stand that he should have taken when the first tapes were made public in July 2019. 

Those first tapes already warranted swift response, with none forthcoming. Even before the new revelations in July 2020, anti-corruption activists, like Vitaly Shabunin, warned that OACK was effectively governing the country.

On 17 July 2020, NABU posted new accusations, against not only Pavlo Vovk, but also his deputy Yevhen Ablov; Ihor Pohribnichenko, Ihor Kachur, Bohdan Sanin, Oleksiy Ohurtsov and Volodymyr Keleberda, as well as Zenoviy Kholodniuk, the then head of the State Judicial Administration.  All were suspected of involvement in a criminal organization aimed at seizing state power by establishing control over the High Qualification Commission of Judges and the High Council of Justice, and by creating artificial obstructions to their work.  NABU asserts that they passed wrongful court rulings to serve their own interests or those of politicians or business structures, and that they used the possibility of such rulings as a means of political pressure.  One favoured method was (and, unfortunately, is) to use law suits from dummy claimants to block or halt proceedings or developments that were not in their interests. 

Just as a year earlier, NABU made public such recordings, allegedly of conversations involving the suspects. The conversations, mostly in Russian, use choice language and demonstrate a staggering level of cynicism.  At one point, for example, Vovk asks if anyone doubted their “political prostitution” while elsewhere he effectively boasts that their court has survived untouched by all the reforms.

NABU asserts that the judges used various unlawful means of ensuring that no ‘inconvenient’ members should be appointed to the High Council of Justice.   They accuse Vovk of exerting influence on other courts as well, with one of the tapes, from 29 May 2019 of particular importance.  On it a voice that appears to be Vovk’s can be hearing boasting that “two courts belong to us, the Constitutional Court and the District Administrative Court.”  The person who is seemingly Vovk hints that his influence was behind the notorious judgement by the Constitutional Court on 28 February 2019 that found the article of Ukraine’s Criminal Code imposing liability for illegal enrichment to be unconstitutional.

On 1 October 2020, the High Anti-Corruption Court suspended Kholodnyuk from his post as head of the State Judicial Administration.  The High Council of Justice has twice blocked the suspension from their duties of Vovk & Co. 

Vovk has on several occasions simply failed to turn up for questioning.  In other cases, that might lead to measures being taken to ensure that a person appeared.  Instead, on 17 March 2021, High Anti-Corruption Court judge Andriy Bitsiuk refused to extend the criminal investigation against Vovk, Ablov and others accused with them of creating a criminal organization.  The decision was not subject to appeal.

It is, of course, for the courts to determine whether criminal behaviour has been proven, however getting to court level appears an almost insurmountable problem, with suspicions mounting as to the players involved in such sabotage.  It would be a travesty if this latest move ended up as a mere cosmetic change in name.