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01.07.2019 | Halya Coynash

Bizarre court rulings point to mounting judicial rot in Ukraine

   

How do you bring customers flocking to your company, when there’s a serious competitor on the market?  If you’re in Ukraine, you can try getting an injunction placed on the competitor to stop virtually any of their activities. 

On 24 May 2019, the Baryshivka District Court in the Kyiv oblast allowed a request for an injunction lodged by an individual who had allegedly had a SkyUp Airlines flight delayed. The court suspended SkyUp’s licence pending a decision on the substance of this one fairly trivial claim. The court did, at least, refuse to ban SkyUp from carrying out any flights, however the airline is outraged, and says that it will be appealing against the ruling.

Outrage has now also been expressed by the supposed claimant who was tracked down by Skhemy investigative journalists.  She says that she had nothing to do with the suit, and has never even flown SkyUp.

This is one of two examples cited by Roman Kuybida of what he wryly terms the ‘Baryshivka School of Law’.  On 14 June, he reported that the same court had banned the Deputy Head of the National Bank from carrying out her duties on the basis of a civil lawsuit, claiming false information. It would seem significant that the claimant, who is from Kyiv, found himself a co-claimant, the head of his former company in Baryshivka, so that the case would be heard at the Baryshivka District Court.

In a disturbing article for the weekly ‘Dzerkalo Tyzhnya, Kuybida notes that over the last few months, courts throughout Ukraine have been issuing rulings whose arbitrary nature you do not need to be a lawyer to understand.  These are not only connected with business interests.  The Suvorov District Court in the Odesa oblast, for example, recently banned the High Qualification Commission of Judges from carrying out a qualification assessment of a judge purely on the basis of a civic suit demanding retraction of allegedly false information.

These have all been injunctions which, unlike rulings based on consideration of the substance of a case, can be passed without the parties being present.  They also have the advantage that they must be enforced immediately, whether or not they are appealed.  The injunctions are officially temporary, however that means little if examination of the suit can be dragged out as long as needed.

Other eyebrow-raising injunctions or rulings have been reported here over recent months.  These included an injunction from the District Administrative Court in Kyiv on 5 February 2019, suspending Acting Health Minister Ulyana Suprun from carrying out any ministerial duties pending consideration of a legal challenge brought by a highly controversial MP, Ihor Mosiychuk.   

This was not the only decision from the Kyiv District Administrative Court that has aroused concern.  There was also a highly controversial ruling on 18 April which found the nationalisation of PrivatBank to have been unlawful.  The ruling, which came just days before the second round of presidential elections which Volodymyr Zelensky was widely expected to win, was clearly in favour of Ihor Kolomoisky, the oligarch with whom Zelensky is generally seen as being linked. 

Lack of independence

Kuybida notes that all the injunctions he outlines were because judges in Ukraine are dependent on politicians and oligarchs.  Most alarmingly, he suggests that the team that served [former President] Viktor Yanukovych would seem to be on the offensive.

One of the first changes Yanukovych and his people made was to the justice system which back then in 2010 was already far from independent.  By Euromaidan and the politically motivated persecution of activists, the courts and the justice system generally were in a dire state.

Kuybida  explains that former President Petro Poroshenko did initiate and ensure adoption of some important judicial reforms.  Amendments to the Constitution in 2016 resulted in the President and parliament being removed from issues regarding judges’ careers and dismissals.

Some of the changes appeared very good, though their outcome was less than dazzling. This included the introduction of competitions for judges’ posts and an assessment of judges to confirm that they met the requirements for holding their posts. A Public Integrity Council was formed to take part in such assessments, however its powers were very limited and it was therefore unable to have a serious impact.

(see: Vital watchdog body refuses to take part in Potemkin reform of Ukraine’s judiciary )

What this led to, Kuybida believes, was the mere illusion of an overhaul.  He suspects that Poroshenko and his administration never intended to carry out real reforms since the process was entrusted to the High Qualification Commission of Judges and the High Council of Justice. Both bodies contain people “who did and continue to do everything to imitate change, while in fact maintaining the status quo.”  A few selective dismissals were intended to create the illusion of a genuine overhaul.

The so-called ‘qualification assessment of judges’ did not lead to the dismissal of judges who had demonstrated incompetence, corruption or lack of integrity, but simply entrenched the majority of such judges in their posts. Kuybida considers that this was in exchange for their loyalty and subservience to the political authorities. “Even the psychological tests were used to retain loyal judges and sift out those who could bring about change”.

The statistics are certainly damning. Of 2,700 judges who underwent such assessment, there were recommendations in the case of just over 150 (6%) that they be dismissed, with only 18 judges (0.5%) actually dismissed.  The vast majority of conclusions from the Public Integrity Council were simply ignored.

In the case of the first competition for judges of the Supreme Court, 25% of those appointed were people who had received negative assessments (details here).

Independent judges punished

The small number of judges who have faced disciplinary measures has included a whistle-blower on corruption and judges who demonstrated independence.

Larisa Holnyk : Ukrainian judge persecuted, physically attacked & prevented from joining Anti-Corruption Court after exposing corruption

Larisa Tsokal : Persecution for independent rulings? Ukrainian judge who refused to imprison Saakashvili dismissed;

Vitaly Radchenko issued a warrant for the National Anti-Corruption Bureau [NABU] to carry out a search of the Kyiv District Administration Court.

Non-standard solutions needed

Kuybida believes progress is possible, but certain “non-standard solutions” are needed.

The judicial bodies responsible for selection and disciplining of judges need a proper overhaul, and not just selection of new members according to the old procedure.  The rules themselves for forming these bodies need to be changed to ensure that the current informal practice for exerting influence does not lead to the old people being replaced by effective look-alikes, who will also serve oligarchs and politicians. He proposes that during this transformation period, these bodies should include representatives of parts of society that command greater public trust (human rights activists; journalists; members of relevant civic organizations etc). This proposal, Kuybida notes, is supported by experts from the Council of Europe and the EU.

The most important thing is that the members of these bodies are also required to meet appropriate standards of integrity given that it is they who are supposed to assess such qualities in others. International experts could be invited to take part in ensuring that such requirements were met.

There also needs to be a method for ensuring review of cases where a qualification assessment has ignored the negative conclusion reached by the Public Integrity Council.

At the moment, the possibility envisaged by the Constitution of dismissing judges who are unable to prove the legality of their property is quite meaningless, since there is no mechanism for monitoring this. The need for such a mechanism is glaring.  Civic monitors from the initiative ProSud, for example, have published details of the sumptuous lifestyle of judge Yevhen Chaku, from the Sixth Court of Appeal, who ruled on 21 June that Oleksandr Onyshchenko had not, as was widely understood, been evading justice for the past three years by hiding out abroad, but had been “taking part in horse races”.  This ruling has now led to the Central Election Commission being obliged to register Onyshchenko as a candidate for the coming parliamentary elections.

Kuybida explains that civic groups have prepared a presentation on further steps needed for reforms in Ukraine, including judicial reform, which will be presented at a conference on reform in Toronto at the beginning of July.

There is a chance, he says, to give a new impulse to judicial reform, and he hopes for the support of the international community in pushing Ukraine towards achieving this.

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