Activists protesting against the competition allowing dishonest judges to be elected to the new Supreme Court. Photo: 5.ua
Article by: Olena Makarenko
The Verkhovna Rada is expected to make a crucial vote for the bill on the Anti-Corruption Court this week. The question is do important that Prime Minister Volodymyr Hroysman has stated he will resign if the Parliament will not give it a vote. A vote should have been held during the last plenary session week but didn’t happen. The idea behind the court is to finally bring top-officials involved in corruption to justice. Its creation is also a requirement of the International Monetary Fund (IMF) for allocating another tranche to Ukraine. But there is another aspect – the court poses a threat to those in power. So the main battle now concerns the details which determine whether this court will be effective and politically independent.
The Anti-Corruption Court will complete the chain of newly-created anti-corruption bodies battling top-corruption – the National Anti-Corruption Bureau (NABU) and Specialized Anti-Corruption Prosecutor’s Office (SAPO). Despite some inner scandals, they are considered a success. During the three years of their existence, they directed 135 cases on top-corruption to courts. Anastasiya Krasnosilska, advocacy manager at the Anti-Corruption Action Centre (ANTAC), an NGO which was one of the main initiators of the idea of the Anti-Corruption Court, explained to Euromaidan Press why at the beginning the solution did not seem obvious:
“In 2015 we hoped for a judicial reform. There were expectations that in post-Euromaidan Ukraine, the judicial branch will not shut their eyes before cases of high-level corruption and make fair decisions in them, at least considering the pressure from society.”
The expert concludes that observing the ignorance of judiciary and lack of progress in the prosecutor’s reform, representatives of civil society started to promote the idea of creating a separate Anti-Corruption Court:
“We realized that we should apply the same approach as with NABU. In 2014, we also were told that we do not need the bureau because there will be the prosecutor’s reform and all the prosecutor’s offices and investigations will be independent. At that time, we said: no, there might be a lack of political will for a big reform. It will take many years, let’s move according to the policy of small steps.”
At the beginning, their idea did not elicit a positive response from the authorities. In particular, President Petro Poroshenko, the initiator of judicial reform in Ukraine, had promoted an alternative to a separate anti-corruption court – creating anti-corruption chambers in every court. With the current situation in Ukrainian judiciary, this can hardly be effective: judges playing by the old rules can’t be trusted to rule on high-level corruption fairly.
The president changed his tune in autumn 2017, just before the Venice Commission issued its recommendations which criticized his previous ideas.
When it became clear that there is no way back, the president came up with the draft law on the Anti-Corruption Court. But the situation also was not that simple – the bill was criticized by Ukraine’s civil society and western partners.
Its crucial issue is the role of international experts in the process of selecting judges. The fight for them to have the right to veto unacceptable candidate for the position of an anti-corruption judge is ongoing until nowadays.
The Parliament passed the bill on the Anti-Corruption Court on the 1 March 2018. The IMF, the World Bank, and the EU stated that the bill violates Ukraine’s obligations and does not meet the requirements of the Venice Commission.
Bitter experience of the creation of the Supreme Court
Last year, as part of Ukraine’s judicial reform, judges were selected to staff the newly-created Supreme Court. Today, judicial reform activists state that the good idea of creating a new court from scratch failed because of bad implementation. The main reason, they say, is that the civil society represented by the Public Integrity Council (PIC) was not given a decisive role to veto dishonest candidates. The PIC was created to assist the High Qualification Commission of Judges (HQCJ) on revealing the professional ethics and integrity of judges.
The HQCJ is a body of judges. During the competition to the Supreme Court, it proved its will to defend judges of the old system. The activists rang alarm bells for three months in a row: according to them, every fourth candidate to the Court did not fit the criteria of integrity and professional ethics – code for making politically motivated decisions and taking bribes. But their voices were ignored. Now the HQCJ is set to select judges to staff the Anti-Corruption Court.
The presidential law on the creation of the anti-corruption court does not foresee the work of the PIC during the process. This time, discussions have erupted over the role of the Council of International Experts.
“The Anti-Corruption Court is not a place for experiments – there, judges are appointed for life. This means that the nearest 20 years those whom we select will decide on justice or injustice. We do not have time to wait for 20 years for the results of the anti-corruption reform,” warns Krasnosilska.
The final stage
Venice Commision experts were invited to participate in the development of the draft law for the second reading. During the last plenary session, the Parliament considered 1272 out of 1925 amendments to the presidential bill.
“These amendments are important. But unfortunately, the Ukrainian Parliament turned the consideration of amendments into a farce. There can be 70 MPs present in the Parliament far less than the 226 needed for making a vote. These 70 start imitating productivity, discussing the amendments which they won’t be able to adopt. Finally, a vote is made disregarding all the previous discussions over several weeks,” says Krasnosilska.
Thus, the 1925 amendments serve to obfuscate the key question troubling everybody: the role of international experts.
Last week, Iegor Soboliev, an MP and dismissed head of the anti-corruption committee in the Parliament, stated that the current leadership of Ukraine has finally come to terms with the necessity to adopt this law and that the final voting on the bill is to take place on 7 June.
He also confirmed that an agreement had been reached on all issues except for the right of the international experts’ council to dismiss any unacceptable candidate for the position of an anti-corruption judge.
Krasnosilska explains that there can be two scenarios:
“The conditions are clear. We critically need the IMF tranche for which we have to adopt a proper law on the anti-corruption court. In the beginning of 2019, we need to pay the majority of our external debts. We are not able to do it without the IMF tranche. It is also problematic to take money elsewhere, even our Euro bonds can hardly attract someone. So we can turn into a country not supported even by the IMF. Ukraine will lose the trust of investors. Failing the vote for the bill according to IMF policy requirements and thus not receive its tranche is not an option for the government. Will the MPs try to manipulate? Probably there will be attempts. They can adopt the edition of the law which will not fit the requirements of the IMF and the president will have two options. First, he will come to the IMF and say that he can’t influence the parliament. The parliament will be the bad guys. Despite the fact that half of the presidential Petro Poroshenko’s Bloc would not vote, he will say that he is not guilty. Will the IMF buy it? Probably not. The second option is that he will deceive MPs. He can receive from them a bill in a bad edition and then veto it and to turn it back with suggestions of a better edition. And again he will presented in a good light and the new stage of negotiations will take place.”
Andreas Umland, German political scientist and a historian is confident that the creation of the Anti-Corruption Court in Ukraine has two meanings.
The practical one is about the creation of a court which will consider cases of corruption of top officials. And a symbolical one: it is important for western politicians who stand for continuing to support Ukraine, as they have to explain the financial support to Ukraine to their voters, parties and the Parliament.
Meanwhile, according to the poll of Ilko Kucheriv Democratic Initiatives Foundation, only 5% respondents are ready to trust representatives of the president to create the anti-corruption court. Meanwhile, representatives of anti-corruption NGOs (47%) and the experts of western countries (38%) would be trusted the most. 13% would trust the Parliament and 9% – the bodies of judicial self-governance in his question.