The Washington Inquirer EditorKYIV — As Russian troops accumulated in the tens of thousands along Ukraine’s borders in December 2021, Moscow-friendly former leader Viktor Yanukovych was preparing for an offensive of his own – a bid to overturn, in court, the Ukrainian legislature’s decision that stripped him of his title and status as president in 2014.
Two months later, the Russian forces poured across the frontier, many of them pushing southward toward Kyiv in what was widely seen as an attempt to topple President Volodymyr Zelenskiy’s government and secure the installation of a Moscow-friendly leader.
Media reports and other evidence suggest the Kremlin may have considered Yanukovych a candidate for that role. A journalistic probe by Schemes, the investigative unit of RFE/RL’s Ukrainian Service, uncovered details about a pair of court cases that could have lent the fugitive ex-president’s appointment an air of legitimacy – on paper, at least, if not in the minds of millions of Ukrainians.
And while the Russian military’s march toward Kyiv failed spectacularly, the timing of the lawsuits and the judicial response to Yanukovych’s push for reinstatement raise persistent questions about the vulnerabilities of Ukraine’s court system to influence from abroad.
The court that ruled on both of Yanukovych’s suits, the Kyiv District Administrative Court (OASK), which handles suits against Ukrainian public institutions, has strong ties to the former president, who appointed its key judges during his 2010-14 term.
The judge who ruled on the first case, Ihor Kachura, served as a deputy minister of industrial policy during Yanukovych’s stint as prime minister in 2006-07; the judge who decided on his second case, OASK Deputy Chairman Yevhen Ablov, is a Yanukovych appointee.
Both Kachura and Ablov are among those accused in an indictment alleging “the creation of a criminal organization and abuse of power” that has been brought before an anti-corruption court by prosecutors. Four other OASK judges, including the chief, are also accused.
At no time did these factors prompt any public move to consider whether the fact that these judges were trying Yanukovych’s cases represented a conflict of interest.
Yanukovych’s first case was a demand for OASK to recognize that the Verkhovna Rada, Ukraine’s parliament, did not have the constitutional authority to declare on February 22, 2014 — the day after Yanukovych left Kyiv following the denouement of the Maidan protest movement and began his flight to Russia — that he had removed himself from office.
On December 28, 2021, OASK accepted the case and assigned it to Kachura.
As prime minister, Yanukovych had appointed Kachura as his deputy industrial policy minister in 2007. Kachura had served on the Central Election Commission (CEC) that confirmed Yanukovych as Ukraine’s president in 2004 — a decision annulled by the Supreme Court, which cited electoral fraud, amid massive protests known as the Orange Revolution. The election was rerun and won by Yanukovych’s opponent, Viktor Yushchenko.
Despite this background, Kachura did not recuse himself from Yanukovych’s case. A hearing was scheduled for February 16, 2022, just over a week before what would prove to be the date of Russia’s full-scale invasion of Ukraine.
In a ruling in early December, Kachura wrote that the case as initially filed contained violations and that in that form it should be considered by the Supreme Court – which on December 6 would uphold a treason conviction against Yanukovych for requesting Russian military assistance to put down the 2014 protests. The judge advised Yanukovych that the suit should be revised, and the case stayed with OASK after revisions were made.
Asked about the case’s timing, Kachura responded that scheduling is the responsibility of court secretaries. He did not comment further about the case.
“Since RFE/RL negatively covers the activities of the judicial system as a whole, I can hardly hope for an objective interview,” he asserted without elaborating. A judge on Ukraine’s Supreme Court was dismissed following a Schemes investigation that found he had Russian citizenship.
When asked why he did not recuse himself from the Yanukovych case, Kachura walked away.
Given Kachura’s participation in the CEC’s decision in favor of Yanukovych in the 2014 election, however, “there is definitely doubt about impartiality,” said Vadym Valko, a lawyer for Kyiv’s nonprofit Anti-Corruption Action Center.
Additional doubts about OASK would soon follow.
Eight days after OASK accepted his initial case, Yanukovych filed a second lawsuit against the Ukrainian legislature. This time, he alleged that, short of impeachment, parliament cannot strip the president of his title.
This case, accepted on January 5, 2022, went to OASK Deputy Chairman Yevhen Ablov, whom Yanukovych appointed to the court in 2010.
At the time, Ablov was one of just three of OASK’s 43 judges who were supposedly available, though case decisions examined by Schemes revealed that there were six more working justices – a total of nine.
As permitted under Ukrainian law, he opted to rule on the case without hearing from either the plaintiff or the defense.
Though the Code of Administrative Proceedings warns judges against summary judgments for cases of public interest, Ablov disputes that Yanukovych trying to reinstate his title as president was out of the ordinary.
“Each of our cases [in the justice system] concerns millions of citizens; even more so in OASK,” he told Schemes.
Ultimately, within one day of each other, Kachura and Ablov reached the same decisions on the Yanukovych cases – to leave the suits “without consideration” since the six-month deadline for appealing legislative acts had expired more than eight years ago. Although Yanukovych could have earlier requested an extension, he did not.
The two judges’ decisions, issued on April 20 and April 21, were handed down roughly two weeks after Russia completed the withdrawal of its troops from areas around Kyiv, pulling them back across the border. The retreat was one of several major setbacks for Russian forces and for Putin’s apparent goal of subjugating Ukraine.
Why the expiration of the deadline for Yanukovych’s lawsuits did not prevent OASK from accepting his cases remains unclear.
Zelenskiy’s deputy chief of staff, Andriy Smyrnov, who oversees judicial reform issues, told Schemes that OASK’s decision to accept Yanukovych’s two lawsuits “caused quite a stir” and created “a risk that the judiciary and individual judicial bodies could be used as a tool for certain people to achieve their dark plans.”
Smyrnov said he had “a serious conversation” about the matter with the court’s chairman, Pavlo Vovk, but did not elaborate.
In April 2021, Zelenskiy urged legislators to disband OASK, warning that the court could “put an end to any state achievement, reform.”
No concrete evidence directly links Yanukovych’s lawsuits to a possible Russian plot to return him to power following the full-scale invasion on February 24, which evidence suggests Putin believed would result in a victory for Russia within days or weeks at most.
But Putin has long described Yanukovych, 72, as Ukraine’s only legitimate president, and his false claim that the former president’s exit from power was the result of a Western-backed coup is central to the Kremlin narratives and efforts to justify the February invasion.
Under pressure from Putin, Yanukovych scrapped plans to sign a trade deal with the European Union in November 2013 and called for tighter ties with Russia instead, prompting the huge protests known as the Maidan and the Revolution of Dignity.
After he fled for Russia in late February 2014 following deadly fighting between security forces and Maidan protesters, who accused the authorities of opening sniper fire into their ranks, the Russian military occupied Ukraine’s Crimean Peninsula and Moscow fomented separatism across eastern and southern Ukraine, igniting war in the region known as the Donbas. That conflict is now part of the wider war Russia launched with the invasion on February 24.
About a week after that, the prominent media outlet Ukrainska Pravda cited an unnamed Ukrainian intelligence source as saying that Yanukovych was in Minsk as part of what could be a plan for his return to power in Ukraine – though the report was never confirmed — and a plane that had been used by Yanukovych was spotted in the Belarusian capital.
On March 8, Russian state media published an announcement in which Yanukovych appealed “presidentially” to Zelenskiy, urging him to “stop the war at any cost and reach a peace agreement.”
In August, the European Union imposed sanctions on Yanukovych for his “role in undermining or threatening the territorial integrity, sovereignty, and independence of Ukraine and the state’s stability and security.”
Citing “different sources,” the EU sanctions document alleged that Yanukovych was part of a Russian special operation aimed at replacing Zelenskiy during the first phases of the invasion.
In any case, any Russian scheme to use the lawsuits to present Yanukovych as Ukraine’s legitimate leader would have worked only if Russia had seized control of Kyiv and Yanukovych had returned “on tanks,” Ukrainian political analyst Volodymyr Fesenko said.
“Yanukovych is not just, to recall the famous Russian expression, a less-than-fresh sturgeon, but rather a long-rotten sturgeon whom no one needed in Kyiv except the Russians,” Fesenko commented to Current Time, the Russian-language network run by RFE/RL in cooperation with VOA.
