Translated by Ollie Richardson & Angelina Siard
The well-known lawyer described to “Strana” what mechanisms the authorities use to force judges to pass the necessary decisions, and why everything will change next year…
In the middle of July the president Petro Poroshenko announced that the reform of the judicial branch of power will come to an end in Ukraine in 2018. “We will finish the reformatting of the judicial system this year. We will create the anti-corruption court this year,” promised Poroshenko on air of the “Freedom of Speech” program, having placed an accent on the fact that Ukrainian reforms in the sphere of combatting corruption already received a positive assessment at the EU and NATO summits.
The guarantor of the Constitution emphasised that he puts in maximum effort so that the new system becomes an example of objectivity and impartiality. “Anti-corruption institutions are already independent, including independent of the president,” said Poroshenko. And he expressed the belief that all courts in Ukraine must become anti-corruption ones as a result of the carried-out transformations.
But the optimism of the president isn’t shared by everyone.
The former Deputy of the Chief of the Presidential Administration, the well-known lawyer Andrey Portnov in an interview to “Strana” described how in reality the judicial system in the post-Maidan Ukraine functions, and with the help of what concrete tools the current authorities put all the courts in the country under strict control.
Petro Poroshenko stated that thanks to the well-coordinated work of the authorities and European partners, the reform of the judicial system entered into the home straight. He affirms that its main result will be actually independent courts, nearly for the first time in the history of independent Ukraine.
“I would compare the way that the president of Ukraine presents his actions in relation to the judicial system of Ukraine to bringing the European commission to a zoo and showing it the most beautiful peacock with a tail conforming to European standards, but then eating it the next day. It is possible to go on and on about the efforts of the president, the coalition, the authorities in general, about how many reforms they carried out, but let’s look at judicial sociology. I suggest to rely on the opinion of those sociological agencies that have a credible past. For example, the ‘Razumkov Center’ and the ‘GFK’ company don’t cause, as it seems to me, people to have doubts. So, the ‘Razumkov Center’ shows that the trust of citizens in the judicial system decreased by two and a half times in comparison with 2013. I wouldn’t like to thus present the situation as if affairs in the judicial system at the time of the previous authorities were faultless. Let’s just say that things were bad. So things were bad back then, but now they start to become two and a half times worse.”
Can you specify concrete times when these turning points for the worst happened?
“I can show this with the help of explaining the ways and mechanisms the president controls and governs the judicial system, and converts this influence into his own dividends. Lately we have seen three or four judicial reforms – laws on cleansing the judicial system, on lustration, then there was a law on the judicial system and a heap of different congresses of judges for the implementation of this law. Changes were even made to the Constitution regarding justice. But what did we receive at the end?
The first thing is lustration. If there is such a political decision, despite its obvious illegality and anti-constitutionality, then please, start to implement it! But the fact is that the authorities started its selective embodiment, having dragged out the process for three years. And what determines selectivity? It means that one judge was subjected to lustration and it was shown to everyone that yes, they are able to implement it and ‘punishment was received’. But the other five or ten judges were simply ‘hooked’ and were forced to work for the authorities. And these five or ten judges receive a warrant for the arrest of opposition politicians, businessmen, and those who the authorities want to finish off. And what do these judges do in such a case? They know for sure that there are mechanisms for their dismissal, moreover – they are subjected to exactly the same measures (as their lustrated colleagues are) and it is very possible that they, for example, were involved in the events on Maidan. But they are kept in the holster for two-three years and are forced to work for the current authorities. Yes, it’s not all judges who behaved in this way, many didn’t want to be humiliated – some were dismissed and some resigned. But a number of people were thus forced and motivated to work for the authorities. And this is just one mechanism.”
What other tools are there to make judges obedient?
“The second one is evaluation, the so-called recertification of judges. The authorities tell them that after they have passed through evaluation, they will receive a bigger salary than the one they had under the ‘dictatorship’ (Yanukovych). But I will offer a reminder – under that ‘dictatorship’ the ordinary judge of a district court in a remote area received the equivalent of $2,000 per month. But now, after recertification and lustration, after a collection of verbal promises were made, the salary of this same judge will be about $1,000.
In other words, the salary was increased by its twofold reduction. It is just a comedy film. But even this isn’t the whole story – let’s look at how this recertification and evaluation is carried out. It is carried out in accordance with criteria that is vague and unknown to anybody. For example, such an expert as a psychologist is dragged into the evaluation process and speaks with the acting judge, and decides that this judge somehow isn’t suitable for work from a psychological point of view. I.e., someone has administered five years of justice, and now it was found out – after all, it is the psychologist who decided this – that he isn’t suitable and is no good. But where did this psychologist come from, what is his academic background, what license and expert position does he have in order to be able to evaluate the judge? And who controls him?
But this isn’t all. After the psychologist, the High Qualifications Commission of Judges of Ukraine (HQCJU) is then involved, which is under the full control of the Presidential Administration and is given the monopoly right to decide the fate of the judges. Thus, even the numerous activists who today fight in the judicial system ‘against the old regime of the past’ criticise the competition for the Supreme Court that was held by the HQCJU. In other words, we have one more way of punishing judges. At the same time, this same HQCJU declares a pause very often in a number of evaluation cases. This word by itself seems to be harmless, but in reality it is one of the considerable levers of pressure. It works as follows: when the question of evaluating judges is being considered, the evaluation of one judge may be subjected to a pause that lasts sometimes 2 to 2.5 years. In relation to another judge this pause can last 1 week, and for others it might not happen at all. I.e., this ‘pause’ in itself is an independent unit of measurement for sale and there is the option of obtaining a pause in exchange for the services (not to mention money) of the Presidential Administration or the Ministry of Justice. After all, the same head of the HQCJU (Sergey Kozyakov) is appointed on the quota of the Ministry of Justice and is completely under the control of the Minister of Justice (Pavel Petrenko, a creature from ‘People’s Front‘). And, of course, the minister can call the head of the HQCJU and decide which judge’s evaluation should be paused and which judge’s evaluation shouldn’t be paused. By the way, later it will be possible to issue another command. And the pause will be stopped, and the judge either will or will not receive power. And this is the third mechanism that is used to pressure judges.”
There is also a fourth one?
“Yes, and this one is relatively new. It is the ‘freshest’ and is being used against those judges who passed through the aforementioned circles of hell, survived lustration and communication with activists from various public controlling organisations, showed all their property, and passed the tests of the psychologist, High Qualifications Commission, and even the Supreme Council of Justice under the control of the President. After all of this such judges encounter the presidential decree on the liquidation of courts (it was published at the end of 2017).
This wording can also sound harmless, but what stands behind it? The president signed this decree 6 months ago, but half a year on and nothing has happened. And after all, the president, for example, liquidated the Shevchenkovsky court, and created a district one on its foundations; he liquidated the Goloseevsky court and on its foundations created a district court together with the Pechersky one… All of this means that the judges from the liquidated courts must be transferred to the new courts. But this will be done ‘partially’ and according to unknown principles. All others risk being left without work. If these transferrals happened during the same stage – the following day after the liquidation of district courts, then there will be no gap. But when this procedure is dragged out for already half a year, it means that during all these 6 months these judges will wait to see if they will become judges in the new court? And they won’t be so lucky if they don’t want to make decisions that are unprofitable for the authorities. It is precisely for this reason that today, albeit informally, the vast majority of judges are guided by this decree, and that’s why they show hyper loyalty to the wishes of the authorities.”
You state that the Higher Council of Justice and the High Qualifications Commission are completely loyal to the Presidential Administration. What do you base your statement on?
“Let’s look at the Higher Council of Justice (HCJ). With all due respect to him, but someone on the presidential quota (Igor Benedisyuk) heads it. He can be as independent as he wants, but the HCJ in total consists of 21 persons, among who there are those who came from presidential and parliamentary quotas, where the people who were appointed are obviously not from the opposition. In addition, there are the quotas of the prosecutors’ conference and the congress of scientific institutions, which are completely under the control of the government and the President. At the same time, currently there are only 7 judges plus the chairman of the Supreme Court, despite the requirements of the Council of Europe – that judges must form a majority part of the HCJ. I.e., the judicial corps in this body is in the minority. Thus, having sold the story about European standards to the population, the authorities are rolling back the judicial system to an older version from many years ago, towards times that were still right at the beginning after the arrival of Ukraine’s independence.
As for the HQCJU, it was created in a similar way. There are two representatives from the head of the State Judicial Administration, who are completely subordinated to the president, and the quota of the Commissioner for Human Rights and the Ministry of Justice, which belongs to ‘People’s Front’ under the right to private property. Yes, there are those who were elected at the Congress of Judges, but I will offer a reminder about how it happened: everything was carried out under the control of the presidential administration, which controlled the election of delegates for Congress. So, the quota of the Congress of Judges, to some degree, is also ‘presidential’.
As a result, we have the following: the president controls the HCJ, HQCJU, State Judicial Administration, and all judicial infrastructure that is in this or that way centred around either the Prosecutor General’s Office or the processual and procedural difficulties that a judge can encounter. And pay attention to how it is framed for society – ‘combatting elements of the old regime’. All of this evaluation concerning the property of judges and so on is without doubt correct, but it is precisely the selectivity of this process, the duration of the procedure, and also the complication of the process and its dependence on specific officials that completely changed the ideologeme of these European standards. Under our conditions it is simply an absolute forgery.”
It was considered for a long time that new anti-corruption bodies have to become some kind of safety lock for the authorities. First of all, NABU…
“Everyone saw the head of the Anti-Corruption Bureau (Artem Sytnik) at the president’s home at night and heard his explanation – he was discussing the anti-corruption court with Poroshenko…
Firstly, it isn’t in his competence. The Security Service can with the same success come to the president’s house at night and discuss the formation of the Shevchenkovsky court of Kiev just because the SBU is headquartered in this district. I.e., this is illegal activity in itself.
Secondly, all of this is opaque because, as it turns out, the nighttime formation of the anti-corruption court takes place…
Thirdly, was there indeed a need to voice this thesis (the need for the creation of the Anti-corruption court) at night at the president’s house? After all, it was already voiced by the IMF, World Bank, the US State Department, European Commissioners, USAID, dozens of international diplomatic institutions, and also by Ukrainian public organisations. Why, after the sum of all these signals received from everywhere, was it necessary to arrive at night – to give one more signal? But after all, the head of the Anti-Corruption Bureau already gave this signal several times on TV. Did the president not hear this and it was thus necessary to come at night?
It is absolutely obvious that this is indeed extra procedural communication. Some anti-corruption activists say that after this meeting no actions will happen that we can visibly see. So there is no need to evaluate actions, it is possible to evaluate inaction. Pay attention to the fact that the quantity of public questions that were sounded with concrete facts, including in relation to the deputy head of the Presidential Administration Aleksey Filatov, weren’t given an assessment by NABU.”
I.e., Bankova Street managed to find the needed keys to “unlock” Sytnik?
“I think that the keys to this person were being searched for long ago. And concerning why activists and deputies have no pretensions to the head of the Anti-Corruption Bureau – I think that it is simply inconvenient for them. After all, all of them were moderators of this anti-corruption movement, as well as its headliners who constantly acted in this respect. And everything that they were building their policy around suddenly collapsed. To recognise their mistakes or to strengthen the signals about this is a much bigger evil for them than to make a remark to the head of the Anti-Corruption Bureau. But the first fact is that he was found in the President’s home. And the second fact: we understand that his explanation is a lie that can be exposed in absolutely everything. It means, among other things, that he also lies to journalists.
If to put all these factors in one puzzle, we will see that NABU also lost its independence. Sytnik for sure discusses something with the president, and it’s certainly not what he declared before. And the fact that the head of NABU visits the home of the president is a signal to all the rest: ‘Look, the president controls even NABU!’. And even if he doesn’t control it, this meeting will create a feeling of such control. And after such things, judges will think that you shouldn’t pass decisions that go against the president, after all, even NABU, which was earlier considered to be independent, is in his hands.”
And what can you say about the degree of independence of the Specialised Anti-Corruption Prosecutor’s Office, the head of which the director of NABU quarrelled with?
“Only lazy people don’t speak about the fact that the authorities completely control the Specialised Anti-corruption Prosecutor’s Office (SAPO), because the authorities revealed in an operational-technical way certain disciplinary violations that were committed by the head of the Specialised Anti-Corruption Prosecutor’s Office Nazar Kholodnitsky. This is how they ‘hooked’ him. Pay attention to the fact that already for 3 or 4 months the Qualification and Disciplinary Commission of State Prosecutors doesn’t take into account these facts. What does this mean? He closed cases that needed to be closed – sometimes it remains idle, sometimes it remains active, but he is in dependence, he is already dependent.
The authorities are going to form an Anti-corruption court in exactly the same way. And before this its role was assumed by the Solomensky district court of Kiev, just because it is based in the same district of the capital that NABU and SAPO are based in. I.e., these pre-judicial investigation bodies go to Solomensky district court to obtain sanctions, including for arrests, searches, and also temporary access to things and documents. So let’s look at the Solomensky court – after all, it works like a certain carrot and stick.
The first thing: several judges were transferred there without a competition taking place and in accordance with principles that are unclear. Some were transferred there from Lugansk, some from Kirovograd, and who knows why precisely these judges were transferred to the Solomensky court? This doesn’t follow from anything. If today the anti-corruption court is the Solomensky court, then why are judges appointed there in an opaque way? And without any procedure?
The second thing. I will remind that when the Solomensky court (let’s call it the ‘Solomensky anti-corruption court’) approved the carrying out of searches at the home of the former head of National Agency for the Prevention of Corruption (NAPC) Natalya Korchak, exactly two weeks later NAPC started the complex verification of the declarations of the judges of this court. So please tell me – will this court authorise something against NAPC? Even if members of NAPC start stealing sausages from a shop with their own hands, the court won’t authorise anything. Because earlier it did give authorisation, and thus immediately became the victim of persecution.
And such cases are very numerous when the authorities on the one hand declare that ‘judicial institutes are independent’ and, on the other hand, have many more levers for their suppression. Examples of this are the closure of cases in relation to functionaries from ‘People’s Front’, for who everything is like water off a duck’s back. But after all, there was the journalistic investigation into deliveries of defense equipment, which involved the head of the Committee on National Security Sergey Pashinsky, or maybe not enough facts were published in connection with the president and his environment’s Panama offshore? Why here do the Anti-Corruption Bureau and the Specialised Anti-Corruption Prosecutor’s Office remain idle? Because mechanisms of putting pressure on those who can counteract this theft are created; they are in operation and are being constantly exhibited.
For example, the case where the heads of SAPO tried to decide during a meeting who from them will contact the ‘grandmother in Soloma’, meaning the implementation of certain agreements with the leadership of the Solomensky district court of Kiev. This proves that the authorities use extra procedural communication with courts regularly. But it’s not even here that special cynicism can be found. I will remind that the powers that be justified Maidan and everything that is connected to the protests of citizens in 2013 by stating that it is being done to also bring order to the judicial system. They lectured everyone by saying that someone contacting [influencing – ed] the court will never happen again. Excuse me, but what on earth is this [influencing Solomensky court – ed] all about?! Why did you kill such a number of people if you continue to contact [influence – ed] the court anyway? After all, you (the authorities) definitely have no moral right to do so. After all, you killed people, you went through Maidan and brought war to the country. But when this fact was made public, nobody even batted an eyelid. I.e., this became a tradition: ‘What’s so bad – someone called the court and gave an instruction?’. Moreover, one of the heads of department in the Presidential Administration comes into the courts with written permission, and all of this is known, and everybody knows what cases they control. And this is indeed ‘living in a new way’ [Poroshenko’s 2014 election slogan – ed], and ‘democracy’ came.
I.e., returning back to our previous example – the peacock in a zoo was shown, and the next day his tail was bitten off and eaten. And the European Commission remembered only this beautiful peacock. After all, nobody reported to it [the EC – ed] what later happened to the peacock.”
But European Commissioners left, and Ukrainian judges remained here. What should they further expect from the authorities, and who are the main beneficiaries of the scheme of putting the clamps on justice in favour of Bankova Street?
“The appointment of judges from the liquidated courts to the new ones awaits us in the next few months. And we, in return, will observe every such judge. Although I can predict already now how it will be: those who made decisions against the interests of the authorities won’t be a part of the new courts. There will probably be some exceptions, but only for those who didn’t make such extremely principal decisions against the will of Bankova Street and ‘People’s Front’. This will be used in order to create a certain picture of ‘justice’. But the key people who went against the system won’t be a part of the new courts.
Moreover, pay attention – in the last six-eight months (after the decree on the liquidation of courts was published) no decisions were made against the authorities at all. In the best case scenario, the judges postponed hearings. Yes, this is also connected to the courts being overloaded, but the judges themselves don’t want to hear resonant cases in relation to representatives of the authorities. They wait until they are reassigned. And such is their formula of dependence.
In parallel with this we observe the process of the devaluation of anti-corruption institutions, a delay with the creation of the Anti-corruption court (with the simultaneous placement of the ‘small anti-corruption court’ – Solomensky – under the control of the authorities). All of this means the systematic deliberate work of the authorities, which doesn’t happen incidentally, but comes from a sole center.
And it is such a center that can govern the Prosecutor General’s Office, NABU, SAPO, HCJ, and HQCJU. Only President Poroshenko and his environment possess the tools to influence all these institutions. That’s why when he argues with pathos that he built an independent judicial system, it is necessary to refer not only to the sociology that I sounded at the very beginning of our interview, but also to the collection of data that was illustration above. It shows how precisely the judicial system is being controlled and via what mechanisms. Having studied them, anyone who has nowadays faced the judicial system can look at their court decision, superimpose it on the facts that I gave, and understand whether they were handed an independent judicial act, or one that isn’t very independent.
But judges, providing services to the authorities, have a concrete agreement and understand that there will be a certain indulgence in them. For example, the deputy head of Anti-Corruption Bureau all the time visits the head of the Court of Appeal of Kiev Yaroslav Golovachev. He comes with a list, gives tasks, and they are fulfilled. In other words, here is the moral of the story underneath all of this for Bankova Street: you rob and steal (I mean President Poroshenko), but please – stop the pathos. It is simple – if you see any brilliant thing, then steal it and walk on. There is no need to lecture people with moralising, don’t brag that you are building an independent system and that you carry out reforms. Take what you stole and be on your way, you have 6 months left to steal, before elections. In December the electoral campaign starts, continue to steal the resources that you manage to steal, thanks also to this judicial system that will legalise it for you, convert all of this into money, and deposit it in your Panama [offshore account – ed]. And after elections there will be a new president. And if they will have the political will, then experts – including from our team – will informally help to take it all back and give it back to the State. We will turn president Poroshenko and all his criminal community into complete paupers.”
Who from the members of the President’s environment do you mean?
“I mean absolutely everyone. Let’s take the president, the head of his administration, all of his deputies, the Prime Minister with all his ministers, the Prosecutor General’s Office – all of this is a criminal community, which either pretends that it doesn’t see anything, or thinks that ‘it’s not me who stole’. For example, let’s extrapolate this situation to me. I received international sanctions because I was a member of the previous political team [Yanokovych – ed] four years ago. And they are like this today – they are members of this team [a member of the government – ed], and they see that president Poroshenko placed money in Panama, but they don’t resign or resolutely protest. So, continue to sit in office and think that ‘it is they who are the thieves, I am the reformer, and I invented Prozorro‘. No, all who sit there are idle. I.e., a certain common lustrational logic must extend to all this political team. That’s why I consider that in 6-9 more months a new story of emigration will start, of returning property to the State, of expropriation of assets, of being declared as wanted and arrests. And we must prepare ourselves for an absolutely new reality.”
In this new reality will there be a place for anti-corruption bodies, or should they be reformatted or completely closed? After all, over the last 4 years big hopes were laid on them, numerous new institutions and structures were created: NABU, NAPC, ARMA [National agency of Ukraine for finding, tracing and management of assets derived from corruption and other crimes – ed], SAPO, and now the Anti-corruption court. We don’t see any real improvement in the sphere of combating corruption…
“Whether or not the law-enforcement system will expand, I don’t know, but I would give advice to anyone who will come to power: look, if you read the news you will see that the Ukrainian agenda consists of such messages: the first news items will be a murder, a rape, a theft, a robbery, and grand theft auto. The next news items will be ‘a search is ongoing, arrests are being made, the measure of restraint is being elected, and there is some bandit infighting’. After this it will be written that President Poroshenko opened a toilet on the route Tsyuryupinsk-Kherson. All of this is the agenda of today’s Ukraine. In this situation there is a need to reduce the number of law enforcement employees – not those who are responsible for street safety, but especially those who come [to Solomensky court – ed] for search warrants, etc.
Meanwhile, the word ‘searches’ must become very rare, and the carrying out of such investigative actions at someone’s home must become extraordinary. The day’s agenda must transition towards news about agriculture – the milk yield increasing; about medicine – new medicines being purchased; about education – something innovative happening in the scientific environment. That’s why a sharp reduction in the number of law enforcement employees – even a maximal one – is the correct step, so that they simply have no time to go to court to obtain warrants.”
It is unlikely that judges believe in such a “bright future”. But what is more interesting is what they say in their environment about the present situation in Ukraine and how they relate to the authorities?
“Firstly, it is obvious that most judges are waiting for a change of government, and consider them to be a temporary invasion. Many even consider this as the occupation of Ukraine by people who, with all their political team (the whole coalition of two factions, including the president’s party), have an approval rating of 5.5%. All are waiting for them to leave.
Secondly, all the people who were earlier dismissed from the system will be restored anyway – some with the help of the tools of the ECHR, some via the mechanisms of the constitutional complaint, and others will receive reincarnation after the change of government in the new judicial reality.
The key thing that judges speak about, and I am very familiar with this, is that many of them want to become participants of the Big Nuremberg process concerning those who today govern Ukraine. Nobody doubts that all the current governors will sit in the detention cages of the Kiev courts. And you know, there is the wrong impression that those who appointed judges also control them. The previous president also appointed many people, and today it is him that they judge. Nobody can control judges in the long term – only in the current situation and in the medium term, when you have a carrot and a stick for them, and the judge also has certain questions for the authorities. And it is at these coordinates that interaction is still possible. But as soon as Poroshenko will stop being in power, I don’t think that there will be a judge whose hand will tremble whilst writing out the warrant for his arrest. There are no doubts about this. And you can document this as my prediction.”
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