2024-09-23T14:24:00+03:00 Publications 2024-09-23T21:45:01+03:00

Ukrainian news

"Shadow report" on justice. Input - grants. Output - rumors

"Shadow report" on justice. Input - grants. Output - rumors

Ukraine's attempts to join the EU have brought new monsters to life. The so-called "shadow reports" appeared - documents of hundreds of pages, which are taken into account by the European Commission officials. However, they have already been called "biased, non-objective, and sometimes outright incompetent assessments and conclusions," which is a repetition of the narratives of the "yellow press." The fact is that the team of authors is narrow and quite specific.

Ukraine is preparing to join the EU and has been adapting its legislation for many years. This is happening with varying success, but the project is moving forward. The latest half-yearly report contains 900 pages, prepared jointly by 140 government agencies. It may not be ingenious, but it is guaranteed to be expert.

Of course, any government will exaggerate its achievements and hide its shortcomings. Therefore, the European Commission has a pretty good mechanism for obtaining objective data: to find experts who will give an alternative view of reality. Then you can compare the two sources and draw more or less adequate conclusions.

Of course, these experts should be of incredible quality, like the Einsteins of the profession, and they should provide in-depth analysis. But in practice, things are not so brilliant.

Brilliant experts are unavailable; the Einsteins either hold positions or have their own businesses. So the "shadow reports" are given to acquaintances and friends, sometimes far from professional. This is very similar to Lenin's statement about cooks who can run the state, with the difference that our cooks are preparing shadow reports that the entire European Commission will rely on.

I don't know how other countries deal with this. But Ukrainian "shadow reports" would have the only fate of decorating the EU archives. They do the best they can, and the result is rather mediocre. In addition to the poor quality of the product, the "experts" probably put their own wishes inside the document or simply take revenge on the professional community that once sanctioned them. And now, they are back with a vengeance. Avengers...

It would be really funny, but... Either EU officials don't know what they are dealing with. Or they do, but the money has been spent, and they have to pretend that the "shadow reports" are masterpieces. This is how European commissioners begin to refer to this second-rate product in their work. A typical phenomenon known as the role of the individual in history emerges. Unfortunately, in this case, we are not talking about Einstein at all.

Once you start in the wrong direction, there is very little chance of reaching the right destination. We have the opposite of what it should be. In the case of Ukraine, we get a second-rate pseudo-expert "soap" that damages the image of not only Ukraine but also the European Union.

HUMILIATING ASSESSMENTS

Let me tell you about one such case. Recently, Vice Prime Minister for European and Euro-Atlantic Integration and Minister of Justice Olha Stefanishyna met with representatives of the European Commission. The meetings are regular, as every six months Ukraine prepares official reports on the adaptation of its legislation to the European Union. This time, our delegation was surprised that the European officials did not refer to the latest official report of the authorities. They had on their desk a so-called "Shadow Report on Justice and Fundamental Law" prepared by several grant organizations. The document itself can be found here.

It turned out that the conclusions in the two documents differed so significantly that it was as if they were talking about two different countries. Moreover, no one had seen the Shadow Report before the meeting, as it had been prepared only the day before. However, it was commissioned by the European Commission, so by now the document has been distributed to hundreds of recipients. They had to take it into consideration, if not to work with, then at least to take it into account.

"I have never seen such a serious report prepared by civil society - not in any country where I have worked before. We will use this report when formulating our recommendations for the screening report, as well as when considering the draft roadmap of rule of law reforms that Ukraine will need to prepare to move forward on its EU accession path. And, of course, these materials will be used to define the benchmarks for the accession negotiations. Therefore, the report is very timely in terms of our work with Ukraine," Manfredas Limantas, Head of the Rule of Law and Anti-Corruption Sector at the EU Delegation to Ukraine, wrote about the report.

Well, I don't know if Mr. Limantas thought carefully before saying that. All the feedback that I have heard from within the professional legal community in Ukraine says exactly the opposite. The professional legal community has studied the document, and the first conclusions are ready. I would call them humiliating - not only for the authors of the Shadow Report, but also for the European Commission, which spent considerable money on it.

The National School of Judges has studied the section on judicial training and characterized it as "biased, biased, and sometimes outright incompetent assessments and conclusions", which is a repetition of the yellow press narratives.

The National School of Judges' claims boiled down to three points.

First, none of the so-called "experts" visited the school and did not try to analyze the content of the educational activities. Yet they were the ones who evaluated them.

The second is that instead of studying, the "experts" from the public sector based their conclusions on... interviews with other representatives of the public sector. That is, they talked to themselves, shared their rumors and preferences, and then compiled a report based on this. The quality of this report was vividly described by the National School of Judges, and I look forward to similar conclusions from other communities.

Third, despite the low quality of the analysis, the Shadow Report's conclusions are very bold. In particular, civil society organizations recommended that the European Commission abolish the school of judges and create a training center on the basis of the High Qualification Commission of Judges (HQCJ). You will find something similar in other sections of the document, which covers almost 500 pages.

I would like to remind you that the conclusion of the National School of Judges concerns only a small fragment of the Shadow Report. Similar conclusions were reached with regard to other sections. Given that the legal community does not like public scandals, the discussions were informal. Nevertheless, they were very active, and not in favor of the reformers. The example of the National School of Law has proved that it is possible to express a public position, so we are waiting for new assessments.

IS THE "SHADOW REPORT" SO INNOCENT?

Recently, I wrote about another "Shadow Report", which concerned customs reform. That report was prepared by the former head of the Customs Service, Max Nefyodov, who is now consuming EU grants. Both of these facts were decisive.

It turned out that behind all the critical assessments were the hidden interests of Nefyodov and his supporters. They want to outsource the electronic document management system of the Customs by creating a certain clone of Prozorro, through which a group of electronic intermediaries will earn money. That's why they pushed the idea of a "reboot" of the customs - in my opinion, to appoint loyal managers and promote their own project. All of this is powerfully covered by terms like "fight against corruption", "digitalization", "re-certification", "independence" and "transparency".

The "shadow report" on customs turned out to be limited and lobbying, but the most surprising thing was what happened next. No one was even interested in what was inside the document, because the goal was different. Shortly after the report was released, the Europeans began to push the reform itself through their ambassadors, which boils down to a complete "recalculation" of the team. I am sure that the telephone law was not left out. The draft law on the reform had been lying in the parliament for two years, but it was revived and adopted as a whole the day before yesterday.

How was it finally pushed through? A few days before the vote, the National Anti Corruption Bureau (?!), with the support of the US Embassy, organized an international conference "Ukraine on the Way to the OECD". Not only ambassadors were invited to the event, but also half of the parliament and a bunch of foreigners. And a day later, MPs voted in favor of the bill, even if they did not agree. The project was kicked down the road.

Not for the first time, they created a poll: are you for or against joining the EU? If you are in favor, then vote properly. To get into the EU, Ukraine must first join the Organization for Economic Cooperation and Development, and customs reform is one of the requirements for joining the OECD. Who included this requirement and for what purpose is another conversation that no one wants to start.

In other words, the content of the Shadow Report did not matter. What was important was the sequence: report - ambassadors' appearance - conference - voting. That is, they approached the issue very procedurally. And the Ukrainian government, which is entirely dependent on the money of the collective West, did not even discuss the issue itself.

What will the "customs reform" look like? There is reason to believe that it will not be very successful. There has been only one successful "reset" in the history of independent Ukraine, and that was the police reform. They just fired all the old police officers and hired new ones off the street. The upside is that the police stopped taking bribes on the roads, although they are no longer in a hurry to chase criminals either. There was a downside, too, but no one saw it: the qualified personnel of the Kuchma-Yushchenko-Yanukovych era were washed out of the investigation and operational work. Some may say, well, let it go, we got rid of the trash. No question, but professionals have been replaced by newcomers or activists who are good at making presentations but not at investigating. The quality of police work has been falling for a long time, although the numbers are normal. This is a stubborn fact. Now let's look at the reforms of the court and the prosecutor's office. Prosecutors and judges are not regulators, they cannot be trained in six-month courses, and knowledge of the law alone is not enough. So, who will replace them? That's right, with scientists and novices under the supervision of activists. In words, everything will be fine, but in reality, it will not.

So, I suspect that the Shadow Report is just a technical step that should invariably end in reform. This is a far-fetched pretext that should lead to massive personnel changes and a struggle for financial flows.

REFORM DEJA VU

The example of customs showed that talk of corruption and reforms can hide very specific desires.Is there anything similar in the legal report? I am not a lawyer by training, so I will leave the conclusions about the competence of the authors of the document to the experts. Instead, I reserve the right to comment on the political component.

During the presidency of Petro Poroshenko, reforms of the courts and the prosecutor's office were led by civil society activists. Civil society organizations cooperated with the Presidential Administration, in particular with the Deputy Presidential Administration in charge of the judiciary, Oleksiy Filatov. They, in particular, destroyed the Supreme Court of Ukraine and replaced it with the Supreme Court. New judges were appointed through the rebooted High Council of Justice and the High Qualifications Commission of Judges. Later, they took over the courts of appeal, and then planned to move on to the courts of first instance. Everything was exactly as the authors of the Shadow Report demanded.

And what? Under the slogans of getting rid of corruption, thousands of professionals were fired from the courts and the prosecutor's office and replaced with people loyal to Poroshenko and NGOs. But sociology has shown that the reforms have failed. Indeed, the head of the new Supreme Court, Mr. Knyazev, was elected on the largest bribe in the history of the judicial system. His accomplices voted for his dismissal to avoid dismissal and investigation themselves. This is not the only element of the farce. For example, Mr. Romaniuk, the former chief justice of the still-abolished Supreme Court of Ukraine, was criticized for corruption, and today he is a member of the Integrity Council, which selects judges of the Constitutional Court of Ukraine and checks them for corruption and moral integrity. These are vivid examples of how promises differ from reality. The state of justice and the level of legality in Ukraine remained in an incredibly poor state.

Something similar happened in the prosecutor's office.

What strikes you when you look through the pages of the Shadow Report? Civil society organizations are repeating the same narratives that they promoted in 2014 and in 2019. Corruption, reforms, reboots, commissions, involvement of international experts - all of this has already happened. Reforms have been underway in each of these areas for years. Great and powerful results have been promised, but nothing is working, even though hundreds of NGO representatives have already joined the current government. In fact, they are now the government. Nevertheless, the Shadow Report proposes to reform these areas again. By the way, the same thing is happening incustoms, procurement, energy, etc. This is some kind of endless professional grant-earning déjà vu.

It seems that there is no point in reforms except for reforms. They lead to the seizure of power and the receipt of another funding from the Ukrainian budget and EU grants. Isn't power and money the main goal of reformers?

A LITTLE ABOUT THE NGO A

little bit about the authors of the Shadow Report.

The activities of so-called NGOs in Ukraine were romanticized back in the days of Viktor Yushchenko. The public was presented with people with honest eyes and clean hands. They were seen as centers of ethics, morality and selflessness. Over the past decade, thousands (!) of NGOs have been created in Ukraine under this legend, and thousands of people are involved in their work. We know these people mostly under the name "activist".

As is often the case, the initial effect of the emergence of activists was good, because during the Yanukovych era they were an effective counterweight to the government and prevented the establishment of a monarchical regime similar to Russia's. But after the victory of the Revolution of Dignity, there was a certain rebirth, and activists began to cooperate with the authorities on a massive scale, and even compete for positions by cooperating with certain elites within Ukraine.

These activists are different from those who drive cars for the Armed Forces, raise money for animals, and prevent the destruction of architectural monuments. These activists receive grant funding (mostly from the US and EU) and are fully booked because they have more important tasks to do. For more than a decade, literally billions of dollars have passed through them, mostly in the form of grants. Gradually, they are integrated into the government, hiding the real beneficiaries.

The most popular slogan of these (grant) activists is the fight against corruption. This is a very convenient legend, because there will always be violations and shortcomings, especially in a poor country like ours. So, under the guise of fighting corruption, they can effectively solve personnel issues. Under good slogans, power is seized and loyalists are appointed to responsible positions. In particular, these NGOs lobby for the appointment of so-called public councils at each ministry, and (if they succeed) demand that the right people be appointed to senior positions, or organize competitions through which the officials they want are appointed. This is the first characteristic of this movement.

The second is that we can speak to some extent of a large-scale international business that boils down to the consumption of billions in grants. I will not say that this activity does not bring any results, but for the most part, it is still about the use of money. Moreover, the lion's share of the money remains in the US and the EU. Less than half of it reaches Ukraine, but even this is enough to maintain a powerful network of influencers who call themselves activists.

And let's not forget that they have a strong cover in the media and social networks. Today, they are the dominant media force, and they set the agenda through the media. Everything is quite conceptual.

In my opinion, these three features are the key ones for modern NGOs: control over the government, distribution of funding, and a strong media presence. There is even a certain new normal: if you want to make a career, imitate these people. Like optimistic posts of reformers and periodically pretend to "hit the rock" yourself. Don't thank them.

AUTHORS OF THE SHADOW REPORT

The "Shadow Report" was prepared by several NGOs. The release, which is replete with quotes, gives the impression that there are many authors, and this should enhance the impression of expertise. In fact, the circle of authors is quite narrow and specific. Let's talk about it a bit.

HERE IS AN INFOGRAPHIC

Figure one. "The Shadow Report was funded by the EU's Pravo-Justice project.

For many years, European money has been spent on the quadrangle: reform of courts, prosecutors, justice and property rights control. It is consumed mostly by official government agencies of Ukraine. Only a small portion of the funding goes to NGOs.

Nevertheless, the authors of the Shadow Report went beyond the courts-prosecutors-justice-property quadrangle and also tried to assess legal education, the bar, the fight against corruption, protection of LGBT and disabled people's rights, etc. I think that the EU provides much more grants, so they decided to "cram the unwanted" into the Shadow Report to show how fruitful the secret army of activists funded by the EU is working in Ukraine.

Figure two. The Ukrainian Bar Association (NGO).

I wrote a lot about this structure when Poroshenko's judicial reform was underway. Unlike the specialized associations (prosecutors, judges, lawyers), this is a mixed club that includes everyone - judges, prosecutors, lawyers, as well as academics, students, and politicians. According to some reports, the UBA is a very convenient corruption platform, where you can come to solve very specific issues without risking being recorded. The case of Supreme Court Judge Knyazev, who was a member of the UBA, was probably born during one of these meetings.

The Association has also always cooperated well with the authorities. In the Poroshenko era, the UBA helped the Poroshenko Administration lobby for judicial and prosecutorial reform. Not the least role in the UBA was played by Denys Bugay, a well-known lawyer who had the indiscretion in Yanukovych's time to cooperate with the young oligarch Serhiy Kurchenko, and today is still under investigation in the Brokbusinessbank case.

But nowadays, new stars are rising in the Presidential Administration. This includes Hanna Ogrenchuk, who a few years ago got married in St. Tropez to Andriy Dovbenko, who was called the "watchdog" of the Ministry of Justice under Pavlo Petrenko and who later bought a mansion in London near the Royal Palace. The wedding was attended by the then head of the Presidential Office, Andriy Bohdan. Mr. Bohdan appointed Ms. Ogrenchuk to the Legal Reform Commission, where she remains to this day, representing cooperation with the current government.

Another star is Ilya Kostin, a member of the UBA board, who was a lawyer in the military, worked in the Defense Ministry and was directly involved in the scandal of buying eggs for 17 UAH. And, of course, the star is Andriy Vyshnevsky, a member of the Presidential Administration, who will be discussed in more detail below.

The third Figure. "Advocates of the Future" (NGO).

On behalf of this NGO, the aforementioned Andriy Vyshnevsky demands to reform the prosecutor's office and the bar. In the days of Yanukovych, Mr. Vyshnevsky was the head of the free legal aid. His career peaked when he was appointed Deputy Minister of Justice after the Revolution of Dignity. But he was fired from there soon after. According to one version, at the insistence of the Canadian government, because Mr. Vyshnevsky wanted to spend the money that Canadians allocated for free legal aid on repairing the roof of the Ministry of Justice. Mr. Vyshnevsky himself says that he was fired for political reasons. I do not know what is true.

Some time later, he headed the Ukrainian chapter of Transparency International, from where he moved to work as a deputy at the National Agency on Corruption Prevention. However, he was also fired from there, and also after the scandal. Mr. Vyshnevsky lost his lawsuit against the National Agency for Prevention of Corruption, and now he works as a publisher, and in his spare time he analyzes the prosecutor's office and the defense bar for the Shadow Report.

In this document, he, among other things, calls for the reform of the bar and promotes education programs for lawyers. Perhaps the secret of such a call is that the Canadian government learned about the repair of the Ministry of Justice's roof from lawyers. It would be surprising if Mr. Vyshnevsky remained grateful for this. By the way, not everyone is critical of Mr. Vyshnevsky. Recently, at a meeting in Brussels, Oleksandr Oliynyk, Director of the Justice and Criminal Justice Directorate of the Ministry of Justice, spoke about a well-known head of free legal aid who suffered because of his principled position. Here it is.

The fourth Figure. Transparency International (NGO)

TI is a powerful international brand. It is an extensive network of NGOs operating in different countries. It uses grant funds to fight corruption and promote transparency, and in Ukraine it actively influences government decisions. In the Shadow Report, they were responsible for the corruption section. Indeed, there is no place where it is not relevant to talk about corruption, and the presence of the TI brand itself adds weight to the document. I would only add that Mr. Vyshnevsky headed TI Ukraine for several years, between dismissals.

Figure five. "Legislative Initiatives laboratory" (NGO).

It has been operating since 2000 and is now a highly integrated structure in the government. It is known, in particular, for drafting a law on the financing of political parties - the one that allows the Servant of the People, European Solidarity and others to receive tens of millions even during the war (!).

The activity of this NGO can be viewed as a bridge between activists and the government, and it is indeed so. Read the press releases of Legislative Initiatives laboratory and you will discover a powerful life that you had no idea about. These are regular conferences, discussions, and contacts with Europeans, which (I suspect) are funded by Europeans themselves. The NGO industrially produces projects such as the "Code of Ethics for Parliamentarians" or a gender-sensitive assessment of practices in parliament, which leads me to conclude that it passes through considerable flows of grant funding. I don't know about its real effectiveness.

As for the Shadow Report, there is an interesting detail. One of the project managers is Mr. Vyshnevsky's wife. Is it him again? Yes, dear friends. In my opinion, this recurrence indicates an extremely narrow circle of people involved in international projects. In Ukrainian realities, this could be called nepotism, but they would rather be called like-minded people.

Figure six. The Zmina Human Rights Center (NGO)

This is a kind of hybrid of a media outlet and a grant-management structure (in particular, from USAID). As for the legal sphere, it works quite closely with Mykhailo Zhernakov, who has been one of the NGOs' lobbyists in the legal sphere for many years (a kind of Mr. Shabunin from the judiciary) and receives numerous grants on this topic. During the Poroshenko era, he helped organize the judicial reform and was loyal to the Poroshenko Administration. But later he began to distance himself from it in order to continue his struggle. Under Zelenskyy, he became even more closely involved in the government. Of course, in order to fight the authorities and break this rock.

What do we see from the list above?

First, it is a rather narrow circle of people who are related to each other (and even family members). In particular, Messrs. Vyshnevsky and Kostin.

Secondly, there are many experts in the same UBA, but they are not involved in the preparation of the Shadow Report. Instead, only a few people are authors, and the discussion is replaced by Ctrl+C Ctrl+V. This may be a sign of a lack of expertise.

Third, funding. The above-mentioned organizations, except for the UBA, have many years of "experience" in working out grants. It can be said that being dissatisfied with critics is their business. The more problems, the better; or criticism for the sake of criticism. There is a conflict of interest. I think that the Shadow Report is supposed to be objective, but in reality it is a dumping ground for accusations and, perhaps, deliberate manipulations. Manipulation is all the more likely because both Mr. Vyshnevsky and Mr. Kostin were once dismissed from the legal system, so they have personal reasons for being dissatisfied with the current state of affairs and may be deliberately pumping up the negative. As we can see from point one, there is no one to stop them, because they are all one big family.

And fourthly, it is a form of "doublethink" - when two opposing points of view are true at once. The so-called "experts" regularly criticize the actions of the government, pretending to be independent, but in fact working closely with it. The only thing that remains unchanged is the role of activists, for which they receive regular grants. In the Shadow Report, they again demand a "reset" of the legal system. Of course, with the participation of themselves. Of course, subject to funding.

ON THE REFORM OF THE BAR

I felt a certain déjà vu when I read the section on bar reform. I recalled the times of Poroshenko, when the Presidential Administration tried to take control of the Bar Association with the help of activists and legal fringe groups. At that time, almost the same arguments were said and written that I saw in the Shadow Report.

At that time, the NGOs, together with the Poroshenko Administration, pushed for the reform of the bar, the only legal sector that does not receive any state funding but has a powerful influence on the state of affairs in the industry. Activists acted as an informational battering ram, telling every radio set how lawyers should be tested for their knowledge of zebras and mammoths. At the same time, Poroshenko's people were pushing draft law No. 9055 through the Verkhovna Rada. Only the organized resistance of tens of thousands of lawyers prevented this "reform". Perhaps fortunately, because the bar remains the only normally functioning legal institution, even if it is not without problems (Lenin used to be ideal, and now Mr. Vyshnevsky is).

So what's the deal today? I think I have found the answer. At the same time, I saw identical points in the Shadow Report and the press release on the occasion of its preparation. They relate to the appointment of two representatives to the High Council of Justice (HCJ), who should be appointed by the legal community. But it does not appoint them, I suspect, because of security concerns. After all, in order to nominate its representatives, an all-Ukrainian congress must be convened, and it must be preceded by regional meetings with an official announcement in the press about the time and place of such meetings, and the number of delegates reaches five hundred people. After Poltava bombing, hardly anyone would dare to do this. In addition, elections in time of war can hardly be called legitimate when many lawyers are at war and can neither vote nor be elected, and another part is abroad. If so, the reasons are the same as for not re-electing the president and parliament in Ukraine.

I do not rule out that the authors of the Shadow Report may be lobbying for their own interests under the guise of criticism, portraying them as socially useful. I do not exclude that there are those who would like to appoint themselves or their representatives to the bar self-government structures or to earn money from professional training. It is not difficult to figure out who these people are, because only one NGO, the Lawyer of the Future, worked on the part of the Shadow Report devoted to the bar. Despite its name, this structure is not a bar association and does not represent any part of the legal community. The entirety of the report is almost entirely the work of the aforementioned Mr. Vyshnevskyi, who seems to have personal grievances against the leadership of the Ukrainian National Bar Association (UNBA). Yes, him again.

I am confident that the UNBA will make public its point of view on the relevant section of the Shadow Report.

Again, I am not going to analyze whether Mr. Vyshnevsky's proposals are professional and adequate, because I am not a professional lawyer. Let me put it another way: in the section on the bar, everything looks sloppy at the moment. The opinion of one, even a very qualified lawyer, cannot be presented as a comprehensive proposal for reforming such a complex area as the legal system. This is only one opinion, and there are tens of thousands of specialists in the bar.

Even in Poroshenko's time, the criticism was carried out by a group that tried to create an alternative bar association. And here we have the point of view of one single lawyer with two high-profile dismissals (from the Ministry of Justice and the National Agency for Corruption Prevention), albeit the former head of free legal aid.

It is very ridiculous that the entire European Commission is guided by the conclusions of a single person with a problematic reputation.

WHAT IS THE OVERALL PURPOSE OF THE SHADOW REPORT?

I'm not an expert, but even I can't call the document in-depth. It is a compilation of news and government reports, a kind of Ctrl+C Ctrl+V. Rumors and hearsay are laid on this foundation. Finally, it is polished with conclusions about the need for decisive reforms.

In other words, it seems that the authors of the document are not experts in the areas analyzed, but instead are politicians. For some reason, out of the blue, they make unrelated statements that boil down to one thing: new people should be appointed, carefully selected by them. Why them? Because they are supposedly representatives of the EU.

I'm not going to argue whether we need a change of power in the courts, prosecutors, or justice agencies. I recall the experience after Euromaidan, when activists and the BPP-Narkofront tandem appointed determined, revolutionary patriots. It ended very badly. So I am sure that the reform cannot be reduced to moving beds and appointing favorites.

As for my personal assumptions, I tried to find for myself what unites all these 538 pages of the Shadow Report. For myself, I have formulated three thoughts that run through the entire document:

1. EU money for monitoring was not spent in vain.

2. We need to keep spending EU money.

3. "Trust us". Under the slogans of European integration, very specific people present an extremely subjective view of things, which is presented as objective. In the language of journalism, this is manipulation and even an attempt to use Ukrainian society for mercenary purposes. In the language of activists, this is the fight against corruption.

It seems that reforms are endless as long as they are so well funded.