Reform watch: Rule of law reforms blocked by corrupt actors

Ukraine’s reform record has been bleak over the past month.

Pro-government members of a selection panel have refused to appoint the winner of the contest for the chief anti-corruption prosecutor. Another contest – for the State Investigation Bureau’s head – was seen by civil society as rigged.

Ukraine’s two most prominent household names for corruption – judge Pavlo Vovk and President Volodymyr Zelensky’s Deputy Chief of Staff Oleh Tatarov – remain unpunished and continue to block reforms.

At the same time, judicial reform has not seen any progress in recent weeks.

Here’s a round-up of key developments in the past month:

SAPO failure

The biggest fiasco happened with the selection of the chief anti-corruption prosecutor, who heads the Special Anti-Corruption Prosecutor’s Office (SAPO) and oversees all cases pursued by the National Anti-Corruption Bureau of Ukraine (NABU).

The selection was almost over in December, but pro-government participants of the selection committee blocked the process when it was clear that the candidate who is deemed to be independent was winning.

The appointment of an independent professional who is free from political influence has been one of the key requirements of Ukraine’s Western partners and donors.

NABU detective Oleksandr Klymenko has received the highest score. However, pro-government members of the selection panel refused to nominate Klymenko as the chief anti-corruption prosecutor twice — on Dec. 21 and Dec. 24.

Since then, the panel’s head Kateryna Koval blocked the selection process by demanding that the Security Service of Ukraine and other state agencies conduct a second background check on Klymenko.

Klymenko – like all other candidates – has already passed a background check. The National Agency for Corruption Prevention and anti-corruption activists say that a second background check would be unlawful.

Koval said on Jan. 13 that she is waiting for a response on the background check from the Prosecutor General’s Office but it had not responded so far. She said that the panel would not nominate the winner until it receives a response.

Roman Kuybida, one of the panel members, wrote on Jan. 13 that five members have demanded holding another meeting to nominate the winner, but Koval refused. According to the rules of procedure, a meeting of the selection panel must be held if at least four members demand it.

Koval claimed that there was no quorum. This allegation was denied by Kuybida.

The panel’s repeated failure to appoint the winner goes against Zelensky’s earlier promises that the head of SAPO would be appointed by the end of 2021.

The President’s Office didn’t respond to a request for comment.

The fiasco is also likely to spoil relations with the West and disrupt lending from the International Monetary Fund (IMF).

“Despite Ukraine’s urgent need for financial aid from the IMF and military aid from the U.S., Zelensky’s team continues to spurn them,” said Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board. “Is the safety of corrupt members of their team more important for the President’s Office than the safety of all Ukrainians?”

On several occasions, members of Zelensky’s team facing criminal charges — such as his deputy chief of staff or lawmakers representing his party — were saved from prosecution by the Prosecutor General’s Office, which oversaw the cases in the absence of the head of SAPO.

When he came to power in 2019, Zelensky said there wouldn’t be special treatment for his allies if they commit crimes.

Rigged contest?

Another debacle took place during the selection of a new chief of the State Investigation Bureau, a key agency that investigates crimes committed by top officials not linked to corruption.

On Dec. 31, Zelensky appointed Oleksiy Sukhachov as the head of the State Investigation Bureau.

The seat of the bureau’s head has been vacant since 2019, while the contest for a new chief had been stalled for nearly two years. However, in December the selection process was unexpectedly sped up, and most of it took place during the winter holidays, when the public paid little attention.

Anti-corruption activists say that the selection panel for choosing the bureau’s chief is entirely controlled by the President’s Office, and Ukraine’s foreign partners have refused to send their representatives to the panel to avoid legitimizing a fake contest. In recent years most government contests without foreign experts’ participation turned into a farce, with competition procedures often being blatantly violated or serving as a façade for the behind-the-scenes promotion of tainted government loyalists.

Only seven candidates were allowed to take part in the recent job selection contest, compared to about 60 candidates in the previous contest in 2017.

Sukhachov was fired from the prosecutor’s office in 2019 because he failed to pass a test of legal knowledge as part of a vetting procedure. Anti-corruption activists also argue that there are violations in his asset declaration. He denies the accusations of wrongdoing.

Corruption unpunished

The saga of presidential deputy chief of staff Tatarov and his alleged corruption has reached a finale. In December, Kyiv’s Shevchenkivsky District Court ordered prosecutors to close the bribery case against him, saying that the deadline for investigating it had expired.

For Zelensky, this means that Tatarov is exonerated. The president said in November that the story with Tatarov’s criminal cases was “over.”

It took one year to save Tatarov from prosecution. In 2020, Prosecutor General Iryna Venediktova, a Zelensky appointee and loyalist, blocked the charges against Tatarov by twice replacing the group of prosecutors in charge of the case. She then took the case away from the NABU and gave it to the Security Service of Ukraine, headed by Zelensky's long-time friend Ivan Bakanov.

In 2021, the Shevchenkivsky District Court refused to extend the Tatarov investigation, and prosecutors effectively killed it by missing the deadline for sending it to trial.

The official’s impunity enabled him to continue sabotaging key reforms, according to the assessment of the Anti-Corruption Action Center.

Tatarov has handpicked pro-government members of the selection panel for choosing the anti-corruption prosecutor, according to Radio Free Europe/Radio Liberty. These members have effectively blocked the appointment of the winner, NABU detective Klymenko.

Tatarov also has a personal reason to block his appointment: Klymenko was in charge of investigating the Tatarov bribery case. Klymenko said in a Jan. 10 interview with news outlet Ukrainska Pravda that if he was the chief anti-corruption prosecutor, he would do a better job with the Tatarov case.

The tainted selection panel for choosing the State Investigation Bureau’s head was also effectively controlled by Tatarov, according to Oleksandr Lemenov, head of anti-corruption watchdog StateWatch.

Four of the six panel members, as well as Sukhachov and Tatarov, are members of the editorial board of the Criminal Law Newsletter, a legal publication. Lemenov argued this is a conflict of interest.

One of the panel members denied being acquainted with Tatarov, while others did not respond to requests for comment.

“Russia’s 100,000 strong army is preparing to invade Ukraine, and Zelensky and (his chief of staff Andriy) Yermak are saving corrupt officials on their team,” Shabunin said on Facebook. “...The story with Tatarov and the selection of the chief anti-corruption prosecutor will be among those that will bury Zelensky’s second term.”

Another high-profile official charged with corruption, the notorious judge Pavlo Vovk, also remains unpunished and continues to block reforms.

In December the Kyiv District Administrative Court, headed by Vovk, ruled to cancel the rules of procedure for selecting the anti-corruption prosecutor and shut down the selection process. Independent lawyers have lambasted the ruling as legal nonsense.

The ruling will come into effect if it is supported by an appellate court.

Tatarov and Vovk, who denied the accusations of wrongdoing, did not respond to requests for comment.

Judicial reform stalled

Judicial reform, which seemed to make progress last fall, is stalling again.

Both foreign experts and Ukrainian judges are supposed to take part in the creation of a new High Qualification Commission and in firing and hiring members of the High Council of Justice. These governing bodies of the judiciary have been discredited due to their protection of corrupt judges and persecution of whistleblowers.

In November, the Ethics Council was created for hiring and firing members of the High Council of Justice.

However, the Ethics Council’s rules of procedure pushed back the assessment of incumbent High Council of Justice members to Feb. 8. Before that, the Ethics Council will assess new candidates for the High Council of Justice.

DEJURE, a legal think tank, believes that this delay creates a great risk that discredited members of the council may avoid being fired indefinitely.

So far, the Ethics Council has not yet begun to hire new members or fire incumbent ones.

In September, a panel for selecting a new High Qualification Commission was also created. However, it has not launched a contest for commission jobs yet.

One of the possible reasons for the delay is that foreign experts want a new High Qualification Commission to be formed when the High Council of Justice has been already cleansed.

Meanwhile, there is an even bigger problem.

Given the Zelensky administration’s failure to ensure the selection of a chief anti-corruption prosecutor and the compromised selection of the State Investigation Bureau chief, a similar scenario may play out with the ongoing judicial reform.

This is not something new: the previous judicial reform plan announced by Zelensky in 2019 had also failed.

Corrupt actors in Ukraine’s political establishment may also use courts to destroy the reform. In October, the Supreme Court asked the Constitutional Court to review the judicial reform law, which may lead to its cancelation.