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Selection panel fails to appoint anti-graft prosecutor, undermines ties with West

by Oleg Sukhov December 22, 2021 2:55 PM 4 min read
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Members of the special anti-corruption prosecutor selection panel meet via Zoom on Dec. 21, 2021. (SAP Selection - 2021/YouTube)

A selection panel failed to appoint a new chief anti-corruption prosecutor at what was supposed to be its final meeting on Dec. 21.

Panel members blamed a recent decision by a tainted court led by a judge suspected of corruption.

What anti-corruption activists see as the latest act of sabotage by the President’s Office follows months of delays in the selection of the prosecutor. Pro-government members of the selection panel have disrupted numerous panel meetings since 2020 by failing to attend.

The chief anti-corruption prosecutor oversees all cases pursued by the National Anti-Corruption Bureau of Ukraine (NABU). The selection of an independent professional who is free from political influence has been a key requirement of Ukraine’s Western partners and donors.

"(President Volodymyr) Zelensky and (his chief of staff Andriy) Yermak have finally blocked the appointment of a chief anti-corruption prosecutor," Vitaly Shabunin, head of the Anti-Corruption Action Center's executive board, wrote on Facebook on Dec. 21. "They did this in an in-your-face and blatantly lawless way to leave no doubt among our Western allies that Zelensky and Yermak spit them in their faces."

The President's Office denied the accusations.

"We are interested in the completion of the necessary procedures by the selection panel by the end of this year and appointment of the most worthy candidate as the chief anti-corruption prosecutor," the President's Office said in a Dec. 20 statement. "As of today, we can state that the selection process has complied with the law."

In November, Zelensky also said he was not aware of any pressure on the selection panel by the President’s Office.

Final meeting

The panel that chooses the prosecutor consists of four international experts and seven members delegated by parliament.

On Dec. 21, the selection panel assigned final scores to the two finalists. NABU detective Oleksandr Klymenko got 246 points, beating prosecutor Andriy Synyuk who got 229. They had previously passed all the selection stages, including written tests and final interviews.

The Anti-Corruption Action Center has praised Klymenko for investigating top officials, including Zelensky’s deputy chief of staff Oleh Tatarov. Activists raised concerns about Synyuk's independence since he is a direct subordinate of Prosecutor General Iryna Venediktova.

The selection panel did not gather a majority on Dec. 21 for a vote to nominate Klymenko as the chief anti-corruption prosecutor. Five out of six pro-government panel members failed to vote for appointing Klymenko.

However, lawyer Vitaly Tytych argued that both finalists lacked the credentials to be effective because pro-government panel members had had the ability to veto the best candidates and because there had been no mechanism to ensure the transparent and fair selection of the best one.

Ruling by Vovk's court

As one of the reasons for not voting for Klymenko's appointment, the selection panel referred to a Dec. 20 decision issued by the Kyiv District Administrative Court, headed by Ukraine's most infamous judge Pavlo Vovk.

The court ruled to cancel the rules of procedure for selecting the anti-corruption prosecutor and shut down the selection process. The court claimed that the selection panel allegedly had no legal authority to adopt the rules of procedure.

Drago Kos, one of the foreign experts on the panel, sent an emailed statement criticizing the decision.

"We knew for some time that this court decision - as the last resort to destroy the work of the commission - was coming and we are not surprised by it," Kos wrote. "What is a surprise for us, is its weak substantiation, which will enable us to challenge it at the second instance," he added.

"Meanwhile, we will continue with our work - if our colleagues from the quota of Verkhovna Rada will allow us, of course."

The Anti-Corruption Action Center's assessed that the court ruling makes no sense because there is a law explicitly giving the selection panel the necessary powers.

Lawyer Tytych also said there is absolutely no legal merit to the decision, which is completely political and lacks common sense.

“This is not a court decision as such, it’s the use of the powers of the court with criminal aims,” he told the Kyiv Independent.

The court did not respond to a request for comment. Since Kyiv District Administrative Court is the court of first instance, its decisions do not take legal effect until an appellate court upholds it.

Zelensky's role?

Vovk, as well as other judges of the Kyiv District Administrative Court, has been charged with corruption and obstruction of justice but the cases against him have been destroyed by Prosecutor General Venediktova, a staunch loyalist of Zelensky.

The president has also abandoned plans to liquidate Vovk’s notoriously lawless court. Oleksiy Ogurtsov, the judge who issued the Dec. 20 ruling on the anti-graft prosecutor selection, is an accomplice of Vovk in these cases.

In audio recordings published by the NABU, Vovk is heard discussing numerous corrupt deals, giving illegal orders and quipping that no one should doubt the court’s “political prostitution.” One of the judges of his court was recorded saying that he supports “any lawlessness in the judiciary.”

Anti-corruption activists argue that the court's decision on the selection of the anti-corruption prosecutor is Vovk's favor to the President's Office in exchange for impunity. "The decision made by the Kyiv District Administrative Court is not accidental and was written at the President’s Office," Shabunin said on Facebook.

Several top allies of Zelensky have allegedly cooperated with Vovk in influencing the judiciary, according to tapes published by the investigative journalism project.

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