Editor’s Note: The opinions expressed in the op-ed section are those of the authors. Oleg Sukhov is a staff writer at the Kyiv Independent. He has been covering the judicial corruption and judicial reforms in Ukraine since 2014.
Russia’s full-scale invasion of Ukraine was a wake-up call for all patriotic Ukrainians, who reacted to it by helping the army and each other. For them, Russia's war is a reminder of what Ukraine strives to be: a developed, Western-oriented country with ingrained democratic values.
But kleptocrats are using the war to achieve the opposite results. They are taking advantage of the lack of focus on reforms amid the war in an effort to perpetuate corruption while no one is paying attention.
By blocking the judicial reform and maintaining tainted courts, they are entrenching corruption – pulling Ukraine away from the West and pushing it back to Russia's modus operandi, in which corruption, nepotism, and a lack of transparency are the norm.
As a result, Ukraine is continuously stumbling on conditions set by the EU as part of the alliance's granting of candidate status to Ukraine, including cleaning up the country's judiciary. Surprisingly, the judicial reform is being killed with the help of previously praised Western experts serving in the Ethics Council, a newly formed body tasked with launching judicial reform.
The Ethics Council is selecting members of the High Council of Justice, the judiciary’s highest governing body.
The Ethics Council is comprised of three Ukrainian judges and three foreign experts, with four members' votes necessary to approve an appointment. If the vote is split, the foreign members’ opinion prevails.
Yet, in May and June, the Ethics Council approved several tainted candidates who do not meet integrity standards for appointment to top judicial jobs and vetoed a well-known whistleblower and anti-corruption crusader.
A major purpose of the reform was to restore trust in the judiciary. Just six months into the process, the council killed society’s trust in the reform.
Members of the Ethics Council have denied the accusations of wrongdoing.
On June 23, the Ethics Council vetoed Larysa Golnyk, a judge at Poltava’s Oktyabrsky Court, claiming that she does not meet ethics and integrity standards. She is one of Ukraine's most famous corruption whistleblowers.
The main justification for the veto was a Facebook post that Golnyk wrote in 2017. In the post, she criticized her colleagues for re-electing Oleksandr Strukov, the chairman of the Oktyabrsky Court, for a fifth term in violation of the law and compared them to sheep.
Strukov, a notorious judge implicated in several corruption scandals, was re-elected unlawfully as Ukraine's law explicitly banned court chairmen from being elected for more than two terms. Golnyk has also accused Strukov of pressuring and physically assaulting her in connection with her conflict with Oleksandr Mamai, the mayor of Poltava.
In 2015, Golnyk published video footage featuring Mamai pressuring her to close a corruption case against him. She also published footage of his deputy unsuccessfully trying to bribe her in exchange for closing the case.
Golnyk was also beaten by unknown men in 2017 in what she says was revenge for her whistleblowing campaign.
Ethics Council’s blunder
There are several reasons why the Ethics Council’s decision was wrong and unlawful.
First, the kleptocrats took Golnyk’s Facebook post out of context, which was way more important than the post itself. Her post was her reaction to a corrupt, politicized, and dysfunctional judiciary and its efforts to persecute her for speaking out.
Second, the veto against Golnyk contrasts sharply with the Ethics Council’s decision to approve several tainted candidates with corrupt backgrounds. While Golnyk’s alleged crime consisted in writing a Facebook post, those candidates’ wrongdoings are real and serious.
Anti-corruption watchdogs said that these candidates had violated asset declaration rules, which can mean they were attempting to conceal their property. They have also whitewashed and supported numerous judges implicated in corruption, and persecuted whistleblowers and anti-corruption crusaders.
Several of the tainted candidates have helped notorious judge Pavlo Vovk, charged with organized crime, escape justice. Vovk is seen as the symbol of lawlessness and injustice in Ukraine.
Third, according to the United Nations Bangalore Principles of Judicial Conduct, the values of judicial independence and zero tolerance for corruption are much higher in the hierarchy than formal politeness towards other judges.
Rather than being a violation of ethics, Golnyk’s post can be considered a manifestation of the main value for a judge – independence and integrity. The Ethics Council effectively punished her for disobeying the corrupt establishment and discouraged honest judges from taking a stance.
Why did this happen?
Ukrainian kleptocrats used Russia's war as an excuse to destroy the transparency of the judicial reform by banning broadcasts of Ethics Council meetings. They used the foreign experts as a façade for their shady dealings.
The foreign experts on the Ethics Council include British judge Anthony Hooper, U.S. judge Robert Cordy, and Lavly Perling, ex-prosecutor general of Estonia.
As the reason for banning broadcasts, they cited alleged security risks due to the ongoing Russian invasion – an excuse that has been used by Ukraine’s corrupt elite for years. On the very first day of the full-scale invasion, Feb. 24, the National Agency for Corruption Prevention also shut down public access to all officials' asset declarations, citing security reasons – even though the public registry didn't indicate the addresses of their properties.
This is a spurious pretext because there is nothing useful Russia can find out from such broadcasts. Ukrainian kleptocrats will use this to hide their corrupt wealth from Ukrainian society, not from the Kremlin.
Moreover, foreign members of the Ethics Council have decided not to communicate with Ukraine’s civil society in an alleged effort to prevent external influence. As a result, the foreign experts have come under the influence of corrupt actors – mostly through the Ethics Council’s secretariat.
The purpose of inviting foreign experts was to have people with proven integrity, independent from the Ukrainian government. This was the correct approach but it is not a panacea.
It is not clear if these specific experts are independent and have integrity. They could have reached some kind of political bargain with Ukrainian judicial elites.
But even if these foreign experts are independent and have integrity, they appear to have very little knowledge of Ukraine and the context of Ukraine’s political institutions and especially the judiciary, which has been slowing down Ukraine's development for years. This is why it was easy for those interested in maintaining corrupt courts to manipulate people unfamiliar with Ukraine.
The solution for such a lack of knowledge would be to contact Ukrainian judicial and anti-corruption watchdogs, who have made it their life's work to clean up Ukraine's courts. However, as of now, foreign experts have decided to ignore them.
After this fiasco, all members of the Ethics Council, including the foreign experts, must resign or be fired through a special law. The reform should be re-launched, with full transparency and online broadcasts of Ethics Council meetings.
A new Ethics Council should be formed, and it should preferably include either stronger and more independent foreign experts or independent representatives of civil society with an impeccable reputation.
Only then can Ukraine achieve victory in the war with corruption, which will make it a well-functioning and strong state capable of defeating Russia.