President Volodymyr Zelensky on Dec. 20 endorsed a law that sets a new procedure for selecting judges to the Constitutional Court of Ukraine (CCU). Now the competition commission should consist of six members – three from Ukraine and three international experts.
However, the Venice Commission, which received the text of the draft law before the vote in the parliament, does not support this option. They insist on seven members of the commission, including one international representative. The European Commission also expects corresponding changes as this is an important reform for Ukraine's accession to the European Union.
The Ukrainian authorities are still resistant. But Vitaliy Shabunin, the head of the Anti-Corruption Action Center, believes the decision will have to be made. In an interview with Kyiv Post, he explained the current state of Ukraine's judicial system, whether it is independent and who is involved in corruption in the country.
How do you assess the state of the judicial branch of power given the liquidation of the Kyiv District Administrative Court and the adoption of the law on the Constitutional Court of Ukraine?
Let's start with the Constitutional Court. The first requirement is that negotiations on accession to the European Union will not begin without the adoption of the necessary laws. I mean the reform of the Constitutional Court, the core of which is the procedure for electing judges. That is, this reform must comply with the recommendations of the Venice Commission. The adopted law signed by the president contradicts the requirement. The Venice Commission stated that, firstly, the law came too late and they did not have time to analyze it. Secondly, the adopted law does not foresee a majority of independent experts.
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I think the bill was sent late intentionally in order to quickly vote on the document. It looks like a planned operation. But it seems the government shot itself in the foot because the law will still need to be voted on again or Ukraine will have to renounce European integration.
Government officials say that international representatives should not have the final say because we are a sovereign state and Western experts cannot make decisions in our country…
And who said they will be foreigners? Representatives from international organizations can be Ukrainians. And I "like" the position of some officials on the sovereignty of Ukraine. Aid from the West accounts for 60 percent of the national budget. Are there any questions of sovereignty?
What is your prediction? Will they vote on the law once again?
There are three options: 1) the Venice Commission will change its decision (which is unlikely); 2) we will change the law; or 3) we won't meet the conditions of accession to the EU and we won't join it.
Can we state that by adopting the law some officials are blocking Ukraine's joining the EU?
No, they want to control the Constitutional Court. I am convinced that Zelensky and his team want to join the EU. It's just that now everyone's position is as follows: "We are the young leaders of the free world, we stopped the Russian horde." That's true but it doesn't allow you to behave this way – you cannot be the leaders of the free world and gain control of the key state institutions.
Does anyone control the Constitutional Court now?
There is no power now that influences the majority in the court.
Should we expect our international partners to stop negotiations with the authorities until the amendments to the law on the Constitutional Court are considered and adopted?
There will be no negotiations as long as the law exists as it is now. Moreover, with all its actions, the authorities are strongly arguing for Russia's discrediting Ukraine rather than for Ukraine.
What does the liquidation of the Kyiv District Administrative Court demonstrate to our judicial system?
First of all, that such arbitrariness is unacceptable. You see, when Pavlo Vovk, the head of the Kyiv District Administrative Court, before everyone's eyes does what he wants, makes the court come to necessary decisions for money – this is a signal to all judges that "it means it is acceptable."
It's not good that this court was not liquidated earlier, without involving the Americans and introducing sanctions against Vovk. This should have been an internal state decision. Therefore, I want to ask MPs from the ruling Servant of the People party, who talk about independence: why didn't you manifest independence with regard to the Kyiv District Administrative Court during your year and eight months in power?
Sanctions were imposed on Vovk right now because a congress of judges who should elect members of the High Council of Justice will be held on January 11. Then the High Council of Justice will become plenipotentiary that will launch the judicial reform. And now the Ethics Council (a body that inspects candidates for the High Council of Justice) has made a list of persons who can be appointed to the High Council of Justice. Vovk and the Kyiv District Administrative Court were the key group that blocked this election, motivating congress delegates not to vote.
Now there is a judicial mafia declaring that the High Council of Justice is not needed because the council would be able to dismiss judges.
What is this mafia?
For example, the Council of Judges of Ukraine, the Kyiv District Administrative Court, which is still influential. Judges listen to Vovk as he is still in office because only the High Council of Justice will be authorized to remove him. That's why he is persuading judges not to vote for electing members of the High Council of Justice, so he can keep his status.
That is, Vovk can become a judge again in the future if there are no further relevant decisions regarding him?
No, he is so toxic that he won't come back. There are two scenarios – either he continues to hold the post of a judge and receive his salary until he is imprisoned, or he finds himself in the High Council of Justice, which will definitely throw him out of the system.
Currently, the number of corruption investigations has decreased due to the closed registers and lack of public access to information. Can we say that this is a "golden age" for corrupt officials?
Sixty percent of the national budget is Western money. The figure will be higher. This means that any corruption scandal in Ukraine is like stealing Western money. To steal from the budget now means to undermine the trust not only of Western elites but of their societies and voters – the trust that is the key to getting weapons and money. Whoever steals from the budget is really an enemy of the country.
Do they steal? Yes. This can be seen from purchases. Is this a global vertical scheme including the top political leadership? It doesn't look like that – it's happening locally.
The slogan of the Anti-Corruption Action Center is "Corruption has a name." What is the name of corruption in Ukraine today?
Our organization follows the policy: we engage in public criticism or confrontation with the authorities only if all previous methods have failed (negotiations, expert explanation, competitions conducted with international experts, stories, examples, etc.). During the war, we changed this position.
Moreover, we're not investigators. We give 90 percent of the information about the schemes to the media. Given these two facts, we are gentler with the authorities in communication and we rarely conduct investigations.
Therefore, I will refrain from answering this question because the persons whom I would name are currently speaking on behalf of Ukraine to the world from which we need money and weapons.
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