12 Skeletons in the HACC Closet

This article, written by Yevhen Solonyna for Radio Liberty, discusses the 12 candidates for the HACC who were not “blacklisted” by the Public Council of International Experts but identified by civil society organizations.

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Several anti-corruption organizations have analyzed the dossiers of candidates for the High Anti-Corruption Court who successfully passed two testing stages. They identified all kinds of issues in the profiles of over 50 candidates. For their part, the Public Council of International Experts identified their own list of candidates to be reviewed and possibly banned from the competition. Even so, 12 candidates remain who were marked unworthy by civil society organizations yet not “blacklisted” by international experts.

Radio Liberty provides the facts identified by activists and urges the candidates as well as other parties to the Anti-Corruption Court formation process to express their opinion as well.

The High Anti-Corruption Court of Ukraine, whose constitution is being selected these days through an open competition, is considered practically the most important court of Ukraine by experts and civic activists. It will have the absolute priority in review of corrupt officials’ cases, and its newly selected judges are relied on much more than the judicial system of Ukraine overall, since the latter can hardly say it enjoys the trust of the Ukrainian society, being considered a source of corruption and conspiracy in the country. It explains why the formation of the HACC draws more public attention than any other court in Ukraine.

The Public Council of International Experts (PCIE), which participates in the selection of candidates, has put 49 out of 113 candidates under review, since it has doubts about their integrity. The right to ban “questionable” candidates from the competition belongs to the High Qualification Commission of Judges (HQCJ), which oversees the HACC competition. To proceed, a candidate must be supported by the majority of the joint HQCJ/PCIE meeting (12 people), with at least 3 of the supporters representing international experts. Under any other circumstances, the questionable candidate drops out of the competition under the Ukrainian legislation on the Anti-Corruption Court.

At the first HQCJ/PCIE joint meeting on 18 January, the experts removed 8 candidates from the competition. It is expected that none of the 49 candidates identified as questionable by international experts will leave the competition the same way.

Thus, out of the candidates who successfully went through the previous competition stages and are not doubted by the HQCJ and the PCIE as of now, at least 12 have more or less “unpleasant” facts in their career, which may put their integrity into question. The situations are different: from traffic violations and failing to pay the respective fine to making decisions on out-of-office days or failure to recuse oneself from a case with a clear conflict of interest.

Just Out of Business and into Judiciary: Family Affair

Dnipropetrovsk oblast judges Ihor Chaikin and Olha Chaikina are husband and wife. The “judicial family” used to do business in the past. Ihor Chaikin’s TOV MetKolirExpo is closed as of now. Olha Chaikina’s 2014 declaration mentions that she is a member of the authorized share capital in a Ukrainian enterprise. This clause disappears in the later declarations. Olha Chaikina explains that, like her husband, she closed down her business after becoming a judge.

Neither another judge in the family (even if it is a candidate for the Anti-Corruption Court), nor past business constitutes a violation under Ukrainian legislation. What is more interesting is the significant quantity of real estate in the couple’s possession, as well as a few violations of which the candidates are guilty.

Judge Ihor Chaikin made several judicial decisions in Russia, which may have violated article 18 of the Law of Ukraine “On Judiciary and the Status of Judges.”

Ihor Chaikin violated traffic rules with subsequent administrative penalties multiple times – but in all cases, the judge successfully contested the fines.

Olha Chaikina’s father also was a participant of a traffic accident: on 22 April 2017, his Land Cruiser 200 failed to give way to another car, which it was supposed to do under traffic rules. Admittedly, the judge’s father was recognized as guilty and fined.

The Anti-Corruption Action center pointed out the couple’s assets, saying that the declared accounts, real estate and money look like they belong to “a successful businesswoman,” not a judge.

Olha Chaikina responded sarcastically on her Facebook page:

“Yes, successful, yes, formerly a businesswoman, since I did business up until July 2012 – until appointment as a judge. Hence the assets: cash, immovable and movable property. Judges don’t fly to their positions from the Mars, do they? They have their own life before the court. Or don’t they?” she writes.

She claims the attention to her biography and declarations is connected with the fact that her written test score is quite high.

Besides, none of her or her husband’s relatives worked as a state official at the time of their appointment – they all engaged in “independent entrepreneurship,” says the judge on Facebook.

One of Olha Chaikina’s former defendants in a criminal proceeding filed a lawsuit against her accusing her of dishonest behavior and causing him emotional distress. The court refused to open a proceeding against judge Chaikina, though.

The judge restricted the work of media in the courtroom completely or partially several times. In one of her decisions on prohibition of video and audio recording of a trial, Olha Chaikina wrote: “Photo and video recording of the court hearing by representative of the media… as well as audio recording… may cause negative impact on the society, lead to violations of dignity, rights and freedoms of other people who are not party to the hearing and create a prejudiced negative public opinion about individuals who participate in review of the complaint.”

Son Not Fined, Father Not Recusing Himself

Judge Andrii Bitsiuk works in Zavodskyi rayon court of Mykolaiv. Activists have found out a few cases when he amended the texts of court verdicts that had already been announced. In one of the cases, he changed the phrase “grant partly” to “grant.”

Andrii Bitsiuk has never been in a traffic accident – unlike his son.

The son, having no insurance, drove with headlights off at nighttime and ended up in trouble. He was supposed to pay UAH 425 of fine, which was later changed to just a warning. In the second accident the court cancelled the fine that Bitsiuk’s son was supposed to pay, again, letting him off with a warning.

As for Andrii Bitsiuk’s judicial history, activists point out violations when the judge’s recusal was requested. There was a case when he failed to review this motion within the deadline, instead reviewing it much later and denying it.

In another situation, judge Bitsiuk denied request for recusal filed by the prosecutor, claiming that the prosecutor failed to provide the presence of witnesses. Yet, it turned out that the prosecutor and the witnesses were present, while the judge himself was on medical leave at the time.

Overtime and Official Language Neglect

Candidate Marian Mytsak (Pavlohradskyi rayon court of Dnipropetrovsk oblast) has no controversial facts in his dossier – except for two.

In 2013 and 2015 he was officially participating in professional training int he National Judge School of Ukraine. Under the law, there was no way he could be present in the court at the time. However, he somehow managed to prepare three judicial documents during his off-duty time, say civil society organizations having investigated his bio.

The second interesting fact about Marian Mytsak is that he is not very fond of the national language: judicial registers contain 529 documents prepared by him in Russian.

Similar facts have become known about a different candidate.

Ihor Kudriavtsev, judge of Starobilskyi court in Luhansk oblast, prepared 619 verdicts and other judicial documents in Russian. In 2013, he also made one judicial decision while out of office participating in professional training.

As of now, Kudriavtsev is a successful contender for the High Anti-Corruption Court, having passed the written test – yet, two years before, he failed to pass the written test at the Supreme Court competition, according to the Chesno movement.

Deputy head of Chernivtsi oblast Appeal Court Vitalii Marchak actively paticipated in professional training seminars, yet during his educational trips to Kyiv he somehow made court decisions in Chernivtsi.

Viktor Maslov, judge of Trostianetskyi rayon court in Sumy oblast, also made 109 judicial decisions during his professional training in June of 2015 in the National Judge School of Ukraine. Despite the fact that the training was taking place in a different city, the judge made 4 court decisions per day on average.

However, the current “overtime leader” is Ivan Kotubei from Mukachevo. During the recent years he has undergone professional training four times, but during the 78 days of professional training in other cities he managed to produce about 350 documents in his court.

Judges with Vested Interest

Ukrainian law prohibits judges from reviewing cases in which they have a vested interest: this rule applies even to situations when an economic entity that provides any services to the judge is one of the parties to the trial.

However, Ivan Kotubei, who has a USD 25,000 loan from Universal Bank, judged multiple lawsuits of this bank to borrowers on their debts, and the bank won some of the cases.

Violations of Judiciary Rules

Oleksandr Leonov works in one of Odesa courts and used to be a judge in Donetsk before the war. Currently, he is successfully moving along in the HACC competition. However, back on 7 September 2017, the High Council of Justice identified shortcomings in his work.

“The judge violated the principle of equality of all parties to the trial before law and court, competitiveness of the parties and their freedom to provide their proofs and prove their credibility to the court,” are just some of the accusations of Leonov by the HCJ. Despite the serious accusations, the High Council of Justice did not prohibit him to work and did not even reprimand him, letting him off with a warning.

Lateness and Mistakes

Judge Iryna Shykeria from Pervomaisk in Mykolaiiv oblast was occasionally late with submission of her judicial decisions, according to the Register of Court Decisions.

She also often edited the text of verdicts that had already been announced. It is unclear whether the amendments in question are just typos or if they actually change the content of the decision.

Minor Violations

Oksana Oliinyk from Okhtyrka in Sumy oblast successfully passed the previous stages of the HACC selection. She has been brought to administrative liability for living without a passport (ID) for some time and for traffic violations. In both cases, she contested the judicial verdicts, so she did not pay any fines.

Head of Novovorontsovskyi rayon court in Kherson oblast Viacheslav Kanevskyi became famous after, being summoned to the army, he did not use corruption or personal connections, choosing to go through training and going “on a business trip” to the front line as part of the National Guard.

A judge and a warrior, embodying love for Ukraine, is now applying for the Anti-Corruption Court and has passed all the stages as of now.

But even such an exemplary judge has certain questionable moments in his judicial career.

In September of 2014 (before the mobilization) he participated in professional training. But the register of court decisions contains one verdict by Kanevskyi dated the same day when he was supposed to be undergoing training in Odesa.

In most cases, when the trial concerned people Kanevskyi knew personally, he recused himself. However, once judge Kanevskyi examined a case where the defendant was the employee of ATOV Avtosvit – an enterprise whose director is none other than the judge’s father (or there are two enterprises of the same name in the area – editor’s note).

The employee violated the law on placement of external advertising. The judge recognized his father’s employee as guilty and fined him.

Some of the aforementioned issues look minor, but judges are being selected for the most important judicial positions in Ukraine, say anti-corruption experts.

To make sure the newly-created Anti-Corruption Court is trusted by the society, candidates with such facts in their biographies should be allowed to work there, says legal advisor of Transparency International Ukraine Maksym Kostetskyi. 

“The Anti-Corruption Court has to become a success story. It will only be possible if the judges representing the new institution are professional and honest. There is reasonable doubt about the integrity of some of the current HACC candidates. Clear discrepancy between the candidate’s lifestyle and expenses and his or her income, out-of-office decision-making, political ties, failure to declare assets and attempts to conceal them – all of this makes such candidates highly questionable. It is essential that the newly created institution should be trusted by the society, which will be hard if such potential candidates make it to the court,” he says.

On 27 December, the High Qualification Commission of Judges published the test results of HACC candidates, including candidates for the Appeal Chamber of the HACC.

By 26 January, members of the Public Council of International Experts have to check the candidates and veto those they find questionable.

On 18 January, the first special joint meeting of the HQCJ and the PCIE took place, where 8 candidates out of the 49 “blacklisted” by international experts were removed from the competition.

The next joint meetings of the HQCJ and the PCIE will take place on January 21, 22, 23, 24 and 28.

After that, the High Qualification Commission of Judges will interview the remaining candidates and remove the candidates they deem less worthy.

Adoption of the law on the anti-corruption court was one of Ukraine’s commitments to its Western partners and a necessary prerequisite for Ukraine’s further cooperation with the IMF.

Creation of a specialized anti-corruption court is stipulated by the law “On Judiciary and the Status of Judges” adopted in 2016.