JUDICIAL REFORM AND THE FIGHT AGAINST CORRUPTION IN UKRAINE

2) legal regulation of flights in international airspace. Each state independently determines the procedure for admission of foreign aircraft to its airspace. Such a permit system is the basis of the legal regime of the airspace of all states today, which is mandatory for both scheduled and non-scheduled international flights. Note that no differences were found. The article also reveals the features of aviation and characterizes its types, which include civil and state aviation. The author also examined the problems existing in the legislation of Ukraine in the field of safety of international flights and suggested possible solutions.

Reforms have been slow due to the persistence of a 'deep underlying culture of corruption' (Ibid., 2.) embedded in the judicial system. Historically, there has been little 'tradition of independence' (Ibid., 7.) of the courts which explains why previous anti-corruption efforts, preceding 2014, have been stalled. Dubrovskiy labels all prior judicial reform as 'tokenistic' (Ibid.) merely serving a purpose to settle civil society demands for reform rather than a direct source of judicial improvement. Poroshenko's predecessor, Yanukovych, contributed to the reduction of public funds available for reform progress. Yanukovych's centralisation of control for nepotistic reallocation of 'rents to his family' (Ibid.) created a lack of available resources within the judiciary, withdrawing reform funding. This contextualises the slower pace of Poroshenko's reforms; however, more progress has been made since 2014, implying there is hope for change in the future, however long-term it may be.
Secondly, the creation of the National Anti-Corruption Bureau of Ukraine (NABU) was a significant anti-corruption reform, creating the first investigative body dedicated solely to rooting out corruption among high officials. The Bureau assesses cases of corrupt individuals, as well as monitors asset declarations, with the application of appropriate consequences for misconduct in public office. The Bureau works alongside two other new units; the National Agency for Prevention of Corruption (NAPC) and the Specialised Anti-Corruption Prosecutor's Office, both acting to aid the Bureau's enforcement of prosecutions. The establishment of the NABU was a reform aimed at 'cleansing government of corruption' (NABU, 2014). However, since its establishment in 2014, the NABU has been criticised for its lack of commitment with 'no high-level officials being convicted to date' (Kostanyan, 2017: 2). The Bureau has seen little success in its investigation into high-level corrupt officials as the agency's work has been obstructed by the 'unreformed' (Ibid.) Prosecutor General's office. Courts have been seen to 'routinely delay' (Ibid.) corruption hearings -a particular case demonstrating the rampant corruption was seen of the parliamentarian whose sentence was delayed by the Verkhovna Rada to allow him to 'slip out of the country before his prosecution' (Ibid.). Although much of this criticism was recorded in 2017, by January 2019, the NABU reported that 'UAH173.87 million in funds had been refunded' (NABU, 2019: 21) through corruption prosecution. Despite this large sum, the agency reports that out of the '745 proceedings under investigation' in 2019, merely '28 of these resulted in convictions' (Ibid.). Although this is a start, it must be considered too slight a fraction to be classified as a successful reform.
The organisation has been developed to become an established institution, with a 'director, permanent offices in Kyiv and a publicly elected civil society committee' (Bilan, Duane, Gorodnichenko & Sologoub, 2015: 5). This is evidence for its success in establishing itself as an authoritative government body, ready to implement anti-corruption reforms. The NABU investigators have become some of the 'highest-paid civil servants' (Bilan et al. 2015: 6) which not only attracts highly skilled detectives but more significantly 'insulates them from corrupting influences' (Ibid.). An important aspect of the NABU's success would lie in its independence from the government, without which it would not function effectively. However, within its first year, the NABU's integrity was compromised, with several attempts made by the government to manipulate the committee formation process.
The Ukrainian Criminal Procedure Code outlines the obligations of the Prosecutor General, which involve decision-making powers within the NABU. It must be noted that this position is 'appointed by the president' (Kalenyuk, 2015) and must be approved by the parliament. President Poroshenko had the largest political faction within the parliament, therefore, de facto, power over the appointment of one of the most influential positions within the NABU. This failed attempt at checks and balances undermines 'the fundamental principle of the political independence of anti-corruption persecution' (Ibid.) and the Bureau itself. Furthermore, the well-regarded anti-corruption Non-Governmental Organisation (NGO), Transparency International, filed a lawsuit against the government of Ukraine, alleging that the Cabinet of Ministers 'circumvented the law to control the process of vetting and appointing the NAPC's' (AntAC, 2015) management committee. These cases expose the Ukrainian government's inability to enforce lasting reform. The initial establishment of the NABU was met, practically instantly, with attempts to discredit the body's investigative capabilities. This was done by attempting to place individuals in charge who would serve to protect precisely those high-level corruptors which the body aimed to eradicate. Moreover, these cases demonstrate the NABU's vulnerability to political intervention into anti-corruption prosecution, thereby, decreasing its reliability to enforce reform.
The Bureau's vulnerability was further exposed in 2017, a few years after the initial cases, during its efforts to investigate corrupt members of the State Migration Service of Ukraine (SMSU). While documenting the participation of the First Deputy Head of the SMSU, a NABU undercover agent was 'illegally detained' (Unian, 2017) by the Office of the Prosecutor General, falsely accused of a 'provocation of bribery' (Ibid.). Undercover operations have been a vital aspect of the Bureau's investigations, as the investigative body does not have the authority for 'autonomous wiretapping' (Ibid.). Therefore, the intervention of the Prosecutor General's Office into the investigation of a highly corrupt individual demonstrates further the NABU's susceptibility to internal interference into anticorruption investigations. These cases are merely a few of many, with various examples of how the NABU's effectiveness is compromised by its lack of independence from the government. Furthermore, the Bureau's inability to obtain the necessary permissions and authority for wiretapping, required for the complex dismantling of internal corruption networks, confirms its failure, without which it will never be able to fulfil its aims.
Thirdly, in addition to the new Supreme Court, an entirely new court was created solely to assess corruption cases. The High Anti-Corruption Court (HACC) was established in April 2019 (Transparency International, 2019a) and has been one of the latest efforts in the fight against corruption. The court's purpose is to review cases put forward by the NABU relating to claims of abuse of power, bribery, illegal enrichment or fraud. Transparency International has been highly involved in ensuring the HACC's jurisdiction to be within the focus of NABU to ensure its independence from the rest of the judicial system, in hopes of minimising its susceptibility to corruption from other sectors. After reviewing the list of candidate judges, out of the 38 appointed to the HACC by the Ukrainian government, only seven were deemed unworthy of this position by a team of NGOs working in this field (Transparency International, AutoMaidan and AntAC). In light of this, it seems that the majority of judges within the body have passed the approval of civil society, after a thorough analysis of histories of 'judicial decisions, property, business and political ties' (Transparency International, 2019a).
These successes can be compared to the appointments made to the newly established Supreme Court in 2014, with the PIC evaluating '25 % of the total number of the court's judges' (PIC, 2017) as dubious or politically motivated. As the establishment of the HACC is a relatively new initiative, it is difficult to assess the success of its actions fully. However, its composition seems capable of providing Ukraine with a much-needed system through which to enforce corruption punishment. Dubrovskiy (2018: 30) praises the creation of the HACC as it has taken on 'symbolic importance' within judicial reform, which has seen particular success within the international community. However, he marks that despite the HACC being an 'important part of the effort' (Ibid.) for corruption awareness, it is yet to find success in its 'closure of the space for corrupt practices' (Ibid.). The lack of enforcement and investigation to break the corruption networks, created by years of bribery and illicit enrichment, must be prioritised. These investigations, whether carried out by the NABU or directly by the police, will bring these underground networks to justice, without which the HACC will simply not have any cases to review.
In his retrospective analysis, Giardullo (2018: 2) provides a compelling summary of the reforms introduced within the four years after the 2014 Revolution of Dignity during which 'protestors demanded an end to corruption'. He comments on Ukraine's 'struggle to bring the reform of its justice sector to completion' (Ibid.) indicating an attempted but unenforced reform path. The greatest weakness highlighted is the 'entrenched vested interest' (Ibid.) of elites within positions of authority which are slowing the ever-difficult process of change. Commenting on the renewal of the Supreme Court, Giardullo draws attention to its exhibitionist nature which merely provides a façade of change, passing the 'litmus test' (Ibid.) for justice-sector reform, without real transformation. The two courts were reformed four years apart from one another, yet the difficulties in the success of these reforms appear similar; with a distinct struggle in appointing independent judges. In order for reform to be effective, judges must be independent and free from susceptibility to corrupt practices, such as bribery, which have almost replaced the bureaucracy within jurisprudence. This failure to appoint such judges shows that Ukraine, although taking clear steps towards reform, has deeper institutional difficulties with corruption, which inevitably delays reforms.
Finally, the resolution of this barrier to reform lay in the creation of a governing body, with authority to aid the selection of independent judges. Thus, the High Qualification Commission of Judges (HQCJ) was re-established as a dedicated and impartial body in the assessment, qualification and appointment of judges to courts within Ukraine. However, despite the hopes of the reboot, the 'HQCJ failed to perform its duties' . The newly reformed body 'discredited itself by recommending tainted judges' (Ibid.) to the new Supreme Court. The ninemonth-long proceedings of the assessment and recommendation of judges to the new Supreme Court were undermined after the Public Integrity Council (PIC) criticised the selections. The PIC announced that '25 % of the total number of the court's judges' (PIC, 2017), selected by the HQCJ, received negative opinions. The re-appointment of these judges was damaging to the integrity of the newly established HQCJ, as well as the Supreme Court itself. It set a precedent that would allow politically dubious judges to maintain their positions of authority without consequence.
Furthermore, reform failures stem beyond the HQCJ due to the shortcomings of the High Council of Justice (HCJ). Under 2017 law, the HCJ assumed the 'function of appointing, disciplining and dismissing judges' (Kyiv Post, 2017), which aimed to remove the political element from the judicial system. Therefore, it was, in fact, the HCJ which 'greenlighted the appointment of the notorious judges to the Supreme Court' (Coynash, 2019) despite the overlooking by the HQCJ. The greatest downfall of the HCJ was the appointment of '227 Maidan judges' (Ibid.) persecuting peaceful EuroMaidan activists. Among these 'Maidan Judges' was a group who 'used disciplinary proceedings to harass independent judges' (Ibid.) who attempted whistleblowing within the court system. The case of independent judge Larysa Holnyk revealed persistent harassment against her attempts at challenging bribery within the judicial systems. Holnyk suffered an attack after publishing a video showing an unsuccessful bribery attempt from the Mayor of Poltava. After reporting the incident to the president of her court, he 'suggested her to accept the bribe, and criticised her stubborn attitude' (Judges for Judges, 2019) revealing the internal corrupt mindset of senior members. This incident was followed by an 'endless row of attempts to make work impossible' (Ibid.) for Holnyk, in a crude effort to showcase the consequences of whistleblowing within the judiciary. The failings of both the HCJ and the HQCJ in preventing the existing corrupt judges from maintaining control within the system deconstructed the hopes of a 'post-Maidan full overhaul of Ukraine's judiciary' (Ibid). Thus, this discredited the work of the HQCJ as well as undermining the reforms against the re-appointment of corrupt officials.
Conclusions. Judicial sector anti-corruption reform has been largely unsuccessful. These failures are evident through the persistent appointment of tainted judges, flawed assessments by the HQCJ and HCJ and the ultimately unreformed Supreme Court. Political dependence of the courts and telephone justice, in which 'prosecutors settle cases over the phone' (Wilson, 2016: 7), both remain the most significant barriers to anti-corruption reform. Reform has failed to see through the overhaul of the judiciary, falling short of the aims set out in 2014.
Firstly, despite the requirements for asset disclosure, the NABU investigations against corrupt individuals and the re-established HQCJ, politically dubious and corrupt judges have remained in power. Bohdan Lvov, Mykhailo Smokovych and Stanislav Kravchenko are but a few examples of such individuals. Lvov, selected as the head of the Cassation Commercial Court, has 'violated Supreme Court law […] bypassing the automatic ease distribution system' (Chyzhyk, Zhernakov, Maselko, & Halushka, 2019) to gain illicit assets. Smokovych and Kravchenko have also failed to declare illegally obtained assets through bribes and manipulation of the justice system (Ibid.). Secondly, the flawed assessments of HQCJ and HCJ further contributed to the downfall of corruption reform in Ukraine. These bodies allowed for the aforementioned judges to remain in power, despite evidence drawn against them of blackmail, political interference and bribery. The bodies 'ignored nearly 60 % of negative conclusions regarding judicial candidates' ) provided by the PIC. While tainted judicial appointments proceeded with-out concrete justifications, 'whistle-blower' judges, like Serhii Bondarenko, recommended by civil society panels, received the lowest integrity scores from the commissions (Ibid.). The newly established commissions, which aimed to eradicate the corrupt individual appointments amongst judges, failed to remain truly independent and apolitical in their selections. Lastly, the unreformed Supreme Court has demonstrated various cases of 'questionable rulings' (Ibid.). One of the notorious examples has been the Supreme Court ruling in favour of the oligarch Firtash's acquisition of commodity companies. Firtash, 'indicted on bribery charges by the United States government' (Ibid.), was allowed the transfer of illicitly gained funds to personal offshore accounts. This case demonstrates the persistence of oligarchic state capture and influence over the judiciary.
The judicial sector was reported as the least progressive reform compared to the success of reforms within other sectors. The European Parliament reported 'outstanding steps forward in areas such as public procurement, macroeconomic stabilisation and the decentralisation process' (European Parliament, 2017), as will be discussed in the following chapters on success. However, the judicial sector has remained lagging in its reform progress, with public trust at a significant low. Merely 3 % of Ukrainians reported as having complete trust in the body compared to the significant 62 % who reported no trust at all (Democratic Initiatives Fund, 2019). As of 2015, the figures reported 2.4 % and 51 % (Ibid.) respectively, revealing the lack of progress and public trust in Ukraine's courts. To conclude, overall, the judicial sector reforms under Poroshenko have not seen the success anticipated at the start of his presidential term, and there is yet much reform to be passed and enforced within Ukraine's historically corrupt judiciary.