Venice Commission. Photo: venice.coe.int
Article by: Olena Makarenko
Ukraine entered another stage of working on its judiciary reform – the creation of an Anti-Corruption Court, a topic which was hotly debated. Civil society activists insisted on its necessity, and President Petro Poroshenko and his inner circle attempted to prove that such a court is useless, suggesting to create anti-corruption chambers in every court instead. The rhetoric of the president changed only recently, just before the Venice Commission issued its recommendations on the question which set the final chord in the discussion: Ukraine needs a court. The process of its formation is the key question now. And without the support of the EU, there is a risk that neither the court nor the fight against corruption will be effective in Ukraine.
During his speech in PACE on 11 October, Petro Poroshenko praised progress in the judicial reform, mentioning that the work on the creation of an Anti-Corruption Court has been started. “But we know that the devil is in the details,” said the President regarding the work of Parliament on legislation. Ukrainian activists agree with this statement. However, they also see a threat coming from the President and his administration, both of which can add details which potentially derail the creation of the Anti-Corruption Court.
Why there should be an Anti-Corruption Court in the first place
The idea first appeared in 2016, when the judicial reform was launched. However, the government and the president, who is considered the initiator of the reform were bogging down the process. According to the memorandum which Ukraine signed with the IMF in spring 2017, the process of creating the Court should have been started and the law on it should have been written already.
But the President’s inner circle had kept silence for a long time. Later, they started to promote the idea of creating anti-corruption chambers in existing courts. And only at the end of September 2017, just before the Venice Commission released its recommendations, Poroshenko and other state officials started to talk about the necessity of a full-fledged Anti-Corruption Court.
Representatives of civil society believe that such a radical turn is caused mostly by the pressure of the international partners.
Oleksandr Lemenov, an expert of Reanimation Package of Reforms, a network of NGOs advocating Ukrainian reforms, explained to Euromaidan Press why the government’s initial suggestion – to create chambers in every court – would hardly be effective: Ukraine has only several hundred courts and selecting judges for the anticorruption chambers would mean re-appointing existing ones to new positions. This, Lemenov told, was just an attempt to avoid creating a real effective institution – judges who were part of the system would be unlikely to investigate corruption effectively.
So far, an Anti-Corruption Court is the missing link in the chain of newly created institutions investigating corruption. Up to now, the chain has been represented by:
- The National Anti Corruption Bureau (NABU), an investigative institution which is regarded as the most independent anti-corruption body in Ukraine. Its effectiveness might be explained by the fact that it was the first that was created, when the government and state top-officials might have underestimated the threat from such an institution.
- The Specialized Anti-Corruption Prosecutor’s Office (SAP) which develops procedural guidelines.
- The Court. As of now, the cases on corruption are being handled in Kyiv’s Solomianskiy District Court. The principle of territoriality is applied, as the NABU is located in this city district. Predictably, the court does not manage to deal with all the the load.
The conclusions of the Venice Commission
There were two bills on the Anti-Corruption Court: one developed by activists, considered as opposing the government, and one was registered by MPs from Petro Poroshenko’s Bloc. It foresaw the creation of anti-corruption chambers.
Neither of the bills were recommended by the Commission. Instead, the recommendations envisage creating a third law based on the one proposed by the activists. At the same time, the Venice Commission concluded that the bill supported by the President contradicts Ukrainian legislation and that the creation of chambers might have a negative effect on the fight against corruption.
On the contrary, the bill suggested by the activists is considered as a good base for the reform, but needing further work.
However, the new law should be filed by the President. And that is the first detail where the devil can hide.
The dangerous details
Activists are confident that the president is not interested in implementing the anti-corruption reform.
“The government’s greatest fear is to lose the control over the creation of new institutions. Ukrainians don’t trust those who are in power, so the power is changing. The current government does not know who will become their successors. But the successors can start putting them into prison,” explains Lemenov.
There are two main instruments with which Poroshenko and his inner circle can prevent this reform from happening not just on paper but in reality:
- First, protracting. Doing this in Ukraine is simple – by assembling different working groups in the Parliament in order to delay creating and passing a corresponding law. This happens so often that even politicians sometimes joke that creating a working group is the best way to fail the case. As Lemenov told, the president might delay with the creation of the court until the next elections, which will happen in 2019. So even if the law is passed now, there will be delays with its implementation and Anti-Corruption Court will not be functional until the end of 2018.
- Second, not letting the independent international experts to take part in the process of selection of judges, because the “needed” candidates will easily get into the newly created court without them:
“You’ll see, their main argument against it will be that the participation of international experts is an element of external intervention in inner affairs of Ukraine which leads to the loss of a part of sovereignty of the country,” says Lemenov.
The activists think that the participation of international experts will create an additional filter for the selection of judges to the Anti-Corruption Court, increasing its effectiveness. So far, the procedure is the following: first, it is the High Qualification Commission of Judges (HQCJ) which selects candidates to the court; then the list of selected candidates goes for the approval of the High Council of Justice (HCJ) which then gives approved list to the president. And the president has to sign it.
The additional body with participation of the international experts with the blocking package of votes should consider candidates prior to the HCQJ, so the commission will already receive the list without dishonest candidates. The weak point of the scheme is that this additional filter foresees the representation of international experts, parliament, president, the government, and civil society, but not representatives of the judicial system. However, legally judges should be appointed by bodies of judicial self-government. So this is yet another issue where balance is needed.
And one more thing which the activists should pay attention to is whether the newly created law on the Anti-Corruption Court corresponds to international standards, particularly those of the Council of Europe. Because if a state official accused by this Anti-Corruption Court will lodge a complaint to the European Court on Human Rights, the decision might be considered as illegal if the legitimacy of the court itself will be under question. Thus, all the sentences against corrupt officials might be abolished.
The bitter lessons from the creation of the Supreme Court
The process of creating another key judicial institution, the new Supreme Court, is now at its final stage – the list of candidates should be appointed by the president.
However, there are too many questions about this list.
The activists headed by the Public Integrity Council (PIC), the body formed from representatives of civil society to assist the HQCJ in assessing the professional ethics and integrity of judges, pointed at the crucial violations which occurred during the competition to the new Supreme Court. They also complained that the HQCJ and HCJ ignored most of their negative assessments of the candidates.
According to the activists, this allowed incompetent and dishonest representatives of the old corrupted system to make it to the final list of candidates to the Supreme Court.
Still, Lemenov is confident that without the participation of the civil society body, the PIC, the result would be much worse.
The expert says that during preparations to create the Supreme Court, nobody thought of creating the body with the participation of international representatives like it is being proposed now with the Anti-Corruption Court:
“When the corresponding legislation was passed in 2016, we were busy with other questions. NABU only started to work. We realized that there will be attacks on it. Another challenge was the implementation of e-declarations.”
The resistance of the current judicial system to the reform during formation of the Supreme Court revealed the need of participation of independent international experts.
President and activists not on the same team anymore
When the judiciary reform was launched by President Poroshenko, the activists were pretty optimistic about it. They saw space for compromise and hoped that progress is possible.
Now, they do not deny the fact that they are in opposition to those in power:
“They see us as opponents. We used to play in one football team. Now they are playing aggressive hockey against us,” says Lemenov.
According to the expert, the turning point happened in March 2017, when the law obliging anti-corruption NGOs to submit e-declarations identical to those as state officials was passed in Parliament.
The pressure of the international community and civil society made the government reconsider its decision. However, the well-known tactic of creating working groups has been applied once again, meaning that this obligation has still not been taken away from anti-corruption NGOs.
Also, activists do not deny that the President’s inner circle is leading a war against them:
“The current government is much more creative than their predecessors. They are very experienced, they are more powerful in terms of media. They know how to act in different situations and in case of some failure they can steal the show of any event by throwing information rubbish in media.”
Therefore, the activists expect confrontations with the authorities during the creation of the future Anti-Corruption Court.
During the time when Poroshenko was not yet supporting the idea of creating an Anti-Corruption Court, he argued that most developed countries do not have such a court. Indeed, Germany, France or Netherlands do not have it. But these countries also don’t have such high levels of corruption.
Slovakia is the only EU member which has such a court. The creation of a special court to tackle high-level corruption has been announced recently in Bulgaria. In both of them, the Anti-Corruption Court is not considered to be a panacea.
“The primary argument of creating this court in Slovakia was that these cases were not getting solved on the local level due to connections between local criminals and local judges or prosecutors. Another point is that attracting the most experienced judges and prosecutors to the biggest cases would make it more likely that they would be solved,” Gabriel Sipos, director at Transparency International in Slovakia, told Euromaidan Press.
In general, he considers the court itself as an effective institution:
“There is a consensus among local experts that the court indeed helped improve the rule of law to some extent, but it was certainly not a key institution that would change the corruption problem substantially in Slovakia.”
Sipos says that 90% of corruption cases that are brought to the court successfully result in sentences. However, the analysis of Transparency International shows that around half of those cases concern bribes of less than EUR 20, which is clearly not the corruption that should be solved as a priority.
The expert blames the police and prosecutors as not doing a good job in bringing high profile cases to the Anti-Corruption Court in Slovakia. The result is that no high ranking politician other than a few mayors or judges has even been punished for corruption up to now.
“Since the state institutions are not able to investigate the politically difficult cases, the most common punishment is, in fact, reputational,” says the expert.
So among effective instruments which help to tackle corruption in Slovakia he names a number of revolutionary transparency reforms in the past 6 years.
Bulgaria is considered as the country with the most corrupt administration and prosecutor’s office in the EU, and no big hopes are placed on the Anti-Corruption court:
“There is no need for new courts. New judges and prosecutors are needed. Honest magistrates. In Bulgaria, nothing will work until the vicious model in the judiciary is changed,” says Dimitar Stoyanov, a Bulgarian journalist.
He himself had to leave the country for security reasons and now is protected by the European Center for Press and Media Freedom. All because of the number of his investigations on local corruption.
He sees the main problem in the fact that judges are dependent on politicians and businessmen and considers the Communist past as the core of the problem:
“Bulgaria has a Soviet-type judicial system. For populations below 7 million, we have 2,300 prosecutors. In Germany, over 80 million people have 800 prosecutors. There is no system for control and evaluation of judges and prosecutors.”
Stoyanov says, that there is information that the cost of entering the court power in Bulgaria is at least EUR 30,000.
An inspiring example of fighting corruption is Romania. The country still has problems, but the progress is visible. Romania does not have an Anti-Corruption Court. The driver of the progress in the country is the National Anti-Corruption Directorate (DNA). It became a nightmare for politicians, ministers, and other state officials and managed to seize millions of euros. The recent success in the country is associated with Romanian President Traian Băsescu who supported the DNA and the agency’s Executive Prosecutor Laura Kövesi. Among other important reasons why the fight against corruption in the country moved forward is Romania’s EU accession in January 2007, when Brussels put pressure on the country to bring their institutions up to EU standards.
The success of Romania is a complex question where the political will plays the main role.
In Ukraine, the fight against corruption is also not a question of creating a single body, but more of political will. Still, the Anti-Corruption Court is an important link in the chain. Thus, special attention to its creation should be paid. The less questions the new law on its creation raises, the more chances the work of the court will be effective. The more carefully the process of selection of judges to the new court is held, the less chances that their decisions will be politically motivated. And in this process, the support of Ukraine’s international partners, and the EU in particular, is crucial. As it is the only force which so far can balance the growing disagreements between the state and civil society.