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10.08.2020 | Halya Coynash
The right to a fair trial

High-level sabotage of judicial corruption probe into Ukrainian judges boasting of ‘political prostitution’

From left Pavlo Vovk, Iryna Venediktova, Yevhen Ablov Collage Slovo i Dilo
   

Several weeks after Ukraine’s National Anti-Corruption Bureau (NABU} publicly issued the most shocking allegations of judicial corruption and rigged court rulings, Prosecutor General Iryna Venediktova has still not  ordered the suspension of the judges implicated.   Nor is this the only reason for suspecting that efforts are underway to sabotage a second NABU attempt to bring charges against the head, deputy head and other judges from the Kyiv District Administrative Court and the head of the State Judicial Administration.  A judge notorious for his politically motivated rulings under President Viktor Yanukovych has now illegally ordered that the investigation be taken away from NABU, with the Prosecutor General’s Office empowered to determine its jurisdiction. This is of concern both because of the Prosecutor General’s baffling reluctance to suspend the judges and because of an intercepted conversation that suggests that the Prosecutor General’s Office sought to torpedo the NABU searches and public revelations on 17 July 2020. 

Background

Several of the judges implicated in the NABU investigation, but in particular, OASK president, Pavlo Vovk, have been the subject of many journalist investigations due to a lifestyle, expensive holidays, etc. that in no way correspond to their official salaries.  Vovk was first appointed president of the District Administrative under Yanukovych and during Euromaidan, OASK was notorious for unlawful rulings against peaceful assembly.  It also gained, and has retained, notoriety for many eyebrow-raising rulings.

On 26 July, 2019, searches were carried out of the offices of OASK, with these followed by a press briefing involving Artem Sytnyk, Director of NABU, and Serhiy Horbatyuk, Director of the now dissolved Special Investigations Department, dealing with the vast majority of Maidan investigations.

The material presented and the intercepted conversations certainly appeared to point to involvement by Vovk and three other judges in dodgy court rulings organized to ensure the removal of certain members of the High Qualification Commission of Judges [HQCJ] and appointment of others.  HQCJ has a critical role to play in ensuring (or blocking) judicial reform, particularly through the qualification assessments that it makes of judges. Its makeup was of direct interest to Vovk who had received a negative assessment from the Public Integrity Council which could only be ignored with the support of a two-thirds majority of the members of HQCJ.  The material exposed during the briefing had first emerged due to an investigation carried out into the activities of District Administrative Court judges during Maidan, by investigators from NABU, the Special Investigations Department and the SBU [Security Service].

Allegations were also made of Vovk’s involvement in rigged court rulings involving the Human Rights Ombudsperson Lyudmila Denisova and the head of the State Judicial Administration, Zenoviy Kholodnyuk.

The initial reaction from the Prosecutor General’s Office then was to deny that NABU and the Special Investigations Department had provided any evidence to back their allegations, however, amid public outrage over the allegations, information was issued on 30 July 2019, stating that Vovk and the others were to be formally notified that they were under suspicion.  

Any progress appears to have ended almost before it began and by August 2019, the High Council of Justice had refused to suspend Vovk and the other judges.  Vovk was then re-re-elected OASK president in January 2020.  This came six days after Ukraine’s legislators on 15 January rejected important amendments which would have passed consideration of appeals against the appointment of new members of the High Qualification Commission of Judges from OASK to the Supreme Court.  The MPs must have been aware of the grave allegations against OASK judges, including its president and deputy president. 

The charges announced on 17 July 2020 against Vovk, his deputy Yevhen Ablov; Ihor Pohribnichenko, Ihor Kachur, Bohdan Sanin, Oleksiy Ohurtsov and Volodymyr Keleberda, as well as Kholodniuk, the head of the State Judicial Administration, were startling in their scope, but also backed by shockingly explicit intercepted conversations.  All are accused 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.  They are accused of passing wrongful court rulings to serve their own interests or those of politicians or business structures, as well as of using the possibility of such rulings as a means of political pressure.  One favoured method is to use law suits from dummy claimants to block or halt proceedings or developments that were not in their interests.

The conversations, mostly in Russian, use choice language and demonstrate frightening 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 accuses the judges of having used various unlawful means of ensuring that no ‘inconvenient’ members should be appointed to HCJ.   

The investigators accuse Vovk of exerting influence on other courts as well, and indeed, on 29 May 2019, 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.”  He 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.

It would be difficult not to agree with Serhiy Horbatyuk’s assessment of the situation three weeks after such revelations.  He writes: “You would think that the reaction of all responsible heads of the state and of state bodies would be unanimous, swift and blunt; the investigation and court examination timely and the reaction of the High Council of Justice immediate and proactive. And, as a result, that those guilty would be punished, including as a lesson to others.

But no.  Ukraine’s President is silent, so too are most MPs.  The bodies of judicial self-government are silent and, what is most important, there is silence from those bodies which are obliged to react – from the High Council of Justice and the Prosecutor General.  The latter is supposed to create the conditions and ensure that a swift, comprehensive and unbiased investigation is carried out without obstruction.

What is more is that when detectives and prosecutors, properly carrying out their duties and overcoming opposition, endeavour to ensure a comprehensive and objective investigation and take measures on prosecuting those implicated in crimes, the management of the prosecutor’s office openly obstructs them and threatens “to deal with them”. “

Horbatyuk goes on to mention the audio recordings published by Censor.net on 6 August 2020 which appear to show an attempt to disrupt the operation and pressure and threats by the head of the Department of the  Prosecutor General’s Office on the prosecutors involved in investigating this case.  Censor.net alleges that Andriy Lyubovych, the Deputy Prosecutor General who signed the documents informing the above-listed individuals that they are under suspicion has been removed and stripped of his procedural powers.

This, Horbatyuk says, together with the long failure to apply for preventive measures to be imposed against the judges, is further evidence that both the management of the law enforcement bodies, and the heads of the country “prefer to have courts and judges who disregard the law and are engaged in “political prostitution”.  For this they use all possible unlawful mechanisms to obstruct the investigation”.  

Horbatyuk also mentions the ruling obligingly passed by another notorious judge, namely Serhiy Vovk from the Pechersky District Court.  Vovk was very seriously involved in political persecution under Yanukovych and it says a lot about the failure of judicial reform in Ukraine that he has remained in his post.  Back in August 2019, Serhiy Vovk awarded the highly contentious former Head of Yanukovych’s Administration and ‘grey cardinal’ of the current administration millions in ‘damages’. 

His ruling on 4 August, in response to an application from the lawyers representing the deputy president of OASK, Yevhen Ablov,  appears to be entirely illegal.  In it, he ordered that the NABU investigation be handed over “to another body of pre-trial investigation”.  NABU is planning to lodge a complaint with the High Council of Justice, while the Specialized Anti-Corruption Prosecutor intends to challenge the transfer in the High Anti-Corruption Court.  The law is clearly on NABU’s side, and the latter accuses those judges who issue such orders of effectively defending the interests of those suspected of grave crimes.

There is still silence from the Prosecutor General, although it will soon be a month since the second instalment of absolutely damning charges were announced against prominent Ukrainian judges.  It is noteworthy that a preventive measure was brought against the Head of the State Judicial Administration , since Kholodniuk’s post does not require permission from the Prosecutor General’s Office.

Horbatyuk writes that in his view “investigation of these criminal proceedings and their results, the consideration of disciplinary proceedings regarding those judges should be a marker of whether there remains in Ukraine any home for true justice and an independent and truly efficient prosecutor”. 

This may depend on how great the efforts are to keep the subject in public view.  Efforts in 2019 were clearly not sufficient, and it is small wonder that the taped conversations repeatedly demonstrate cynical confidence of the speakers’ absolute impunity.


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