The International Monetary Fund has officially informed the Ukrainian authorities that the adoption of the presidential draft Law on the Anti-Corruption Court in its current version will mean Kyiv’s violation of its obligations to its international partners, the Ukrainian outlet Yevropeiska Pravda reported. The outlet claims to have a copy of a letter from the IMF Mission Chief for Ukraine Ron van Rooden to Ihor Rainin, the Head of the President’s Administration which was also sent to the Ukrainian Prime Minsiter, Speaker of Parliament, several ministers and government representatives, and other officials.
In the letter sent on 11 January 2018, the Fund representative rules out the possibility that the IMF will agree to the President’s draft law on the High Anti-Corruption Court (HACC), which was submitted just before the New Year.
“The submission by the President of the draft law on teh High Anti-Corruption Court was expected to be a positive step […] However, we have serious concerns about the draft law that was submitted to Parliament on December 22, as several provisions are not consistent with the authorities’ commitments under Ukraine’s IMF-supported program and the recommendations of the Venice Commission of the Council of Europe,” the letter says.
In three pages, the letter explains why such a law will not allow to create a court which would be trusted inside Ukraine and abroad. The IMF’s comments are divided into three groups – regarding the procedures for choosing judges, regarding provisions of the law directed at protraction in creating the HACC, and also regarding the Court’s jurisdiction. In total, the document has 9 comments.
The largest amount of criticism concerns the question of selecting judges. In particular, the Fund notes that the Public Council of International Experts should have the possibility to strike down the candidatures of dishonest judges to the HACC as the Venetian Commission recommended; otherwise, its credibility would be undermined from the start. As well, it maintains that both international organizations and donors should be able to recommend members to the Council, “in accordance with the Venice’s Commissions’ recommendations.”
The fund stressed that the Public Integrity Council, a body of activists overlooking the selection process, should have a say in the selection of HACC judges, in line with the mechanism for other judges under the Law on the Judiciary, and stated that the requirements to the judges’ eligibility as they are written in the law are unrealistic and should be eased.
As well, the IMF noted that the draft law opens opportunities for additional delays in establishing the ACC:
“The draft law would not actually suffice to operationalize the HACC contrary to earlier commitments. Instead, an additional law, to be submitted by the President at a later stage, would still be needed to establish it.”
Additionally, the Fund wrote that the jurisdiction of the court envisaged by the draft law is inadequate and includes undue derogations for certain senior officials, stressing that the draft law in its current form would clog up the HACC’s docket with casees which are not investigated or prosecuted by Ukraine’s other anti-corruption bodies, the National Anti-Corruption Bureau or Special Anti-Corruption Prosecutor’s Office.
The ACC is seen to be the final missing link in the chain of anti-corruption institutions, and its creation was resisted by circles in the President’s Administration, who instead lobbied for the creation of anti-corruption chambers, up till September 2017. Meanwhile, Ukrainian anti-corruption activists, the Venice Commission, IMF, the US, and the EU had demanded Ukraine create an Anti-Corruption Court, which would make sure that officials guilty of corruption would face punishment.
Most of the IMF’s criticism is in line with that of civil society representatives. According to them, the two main instruments with which President Poroshenko and his circles could undermine the creation of the HACC is protraction and not allowing independent international experts to take part in the process of selection of judges. Overall, the civic society representatives warned that if the presidential draft bill will be adopted, the effectiveness of the new institution would placed under a big question mark.
Advocates of the Anti-Corruption Court’s creation argued that the institution is the missing link in the chain of investigative anti-corruption institutions. Up to now, the chain has been represented by the National Anti Corruption Bureau (NABU), an investigative institution, and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) which develops procedural guidelines. But to actually bring the culprits to justice, a court decision is required. Up till now, only one court had processed the anti-corruption cases: the Kyiv Solomianskyi District Court, as it is located in the same city district as NABU. Predictably, the court does not manage to deal with the load.
The Presidential Administration responds to criticism
The day Yevropeiska Pravda published the letter, January 15, the President’s Administration issued a response in which it says that the “bill on the Anti-Corruption Court was developed in accordance with the Constitution of Ukraine and in line with the recommendations of the Venice Commission,” that the draft law has been submitted to the Verkhovna Rada, therefore “all discussions about certain norms must be held within the legal framework in the Ukrainian parliament.”
The Venice Commission issued its recommendations on 6 October. It considered two bills on the Anti-Corruption Court: one developed by activists, seen as opposing the government, and one by MPs from Petro Poroshenko’s Bloc, which 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 was considered to be a good base for the reform, but needing further work.
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