Ukraine’s new Anti-Corruption Court law could let some top-corrupts get away

On 7 June 2018, the Ukrainian Parliament passed the bill on the creation of the Anti-Corruption Court. 317 out of the needed 226 MPs voted for it. Photo: slovoidilo.ua
 

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The text of Ukraine’s much-disputed anti-corruption law which was adopted last week is finally published. It was found to have a legal loophole which would potentially allow the corruptionists who had already been investigated by the national Anti-Corruption Bureau to evade responsibility.

On 7 June 2018, the Ukrainian Parliament passed the bill on the creation of the Anti-Corruption Court. 317 out of the needed 226 MPs voted for it. Photo: slovoidilo.ua

On 11 June, President Petro Poroshenko signed the law on the Anti-Corruption Court. However, hot discussions over its text are ongoing. Before the adoption, arguments raged over the role of international experts in selecting judges to the new court. Now, anti-corruption activists spotted a “loophole” in the law after it was signed.

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 to be a success. In the beginning, Ukrainian authorities resisted the idea of a separate anti-corruption court. 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 with criticism of his ideas. When it became clear that there is no way back, the president came up with the draft bill on the Anti-Corruption Court.

Read also: Ukrainian Parliament votes to create an Anti-Corruption Court

The bill was criticized by civil society and Ukraine’s international partners. In particular, the main contended issue was whether international experts would have powers to veto prospective candidates to the court. Experts see this as a precondition for staffing the court with politically independent judges. Before the second reading in the Verkhovna Rada (Parliament) the bill had nearly 2,000 amendments. However, the one about the international experts was the main one on the agenda. The compromise on it has been reached only the night before the final vote.

“This is the victory of Ukraine, Ukrainian people, my victory, the victory of the Parliament and the Government,” said Poroshenko in Parliament.

However, representatives of civil society were not in a hurry to celebrate saying that the final text of the law was not yet published.

The appeals loophole

After analyzing the text, the Anti-Corruption Action Center (ANTAC), the NGO which initiated the idea of creating the Anti-corruption Court, found an amendment which they say was not discussed and even not voiced over before the vote.

The law foresees that the Anti-Corruption Court will not consider appeals on the decisions of old the unreformed courts in cases submitted by the National Anti-Corruption Bureau prior to the creation of the Anti-Corruption Court,” Anastasiya Krasnosilska, advocacy manager of ANTAC, explained to Euromaidan Press.

That means that if the unreformed general courts pardon corruptionists who had been already investigated by NABU, the newly-created Anti-Corruption Court will be powerless to consider an appeal.

This is an important detail, considering that the main motivation for creating a separate Anti-Corruption Court for considering high-profile corruption cases was the slim chance that justice would be served in the unreformed old courts. Now all the crimes which the NABU had unearthed could remain unpunished.

Kranosilska says that even the first edition of the president’s bill and the first decision of the Parliament’s committee had a better norm on the appeals:

“At the very last moment, about an hour before the final vote, the committee inserted this bad amendment on appeals into the law, without discussing it on the committee, without reading the transcript before making the decision. So it concealed it from the MPs in a manipulative. Until the last moment, discussions concerned the wording of the norm on the veto right for the international experts. This discussion was ongoing when the bill entered the session hall. I can’t say it was falsification, because the MPs received the amendment. But in the given conditions of how the bill was considered, it was a manipulation to leave the amendment unnoticeable.”

In his turn, Iegor Soboliev, an MP and dismissed head of the Parliament’s anti-corruption committee does consider it a falsification:

The Parliament has not voted for it. The head of the law committee of the Parliament Ruslan Kniazevych, the speaker Andriy Parubiy and Poroshenko himself signed the falsified text.”

The Verkhovna Rada Committee on Legal Policy and Justice in its turn denies the allegations saying that the amendment regarding the appeal corresponds to the Venice Commission recommendations and was publicly read on the Parliament’s meeting.

During the preparation of the bill to the second reading, the Committee agreed with the recommendations of the Venice Commission experts who in its Conclusion (paragraph 35) noted about the expediency that the cases which on the moment of the beginning of the work of the High Anti-Corruption Court were on trial, continued to be considered in a court which was doing it before. Otherwise, the Anti-Corruption Court would be overloaded,” says the statement.

Krasnosilska explains why the amendment is dangerous:

Now NABU sent more than 135 cases to court. In the nearest two years, around 200 cases of NABU will be in courts of the first instance. In fact, this amendment defends such people as the Head of the Fiscal Service Roman Nasirov, the sponsor of Narodnyi Front, the second biggest party in the Parliament, and Mykola Martynenko. We think that this provision is not a coincidence.”

Nasirov is suspected in causing damage to the state in the amount of UAH 2bn ($ 73.7mn). He is a suspect in the so-called gas case of the runaway oligarch and ex-MP Oleksandr Onyshchenko. The oligarch is suspected of organizing embezzlement schemes during the extraction and sale of natural gas in terms of the cooperation agreements with the state-owned company Ukrgazvydobuvannia.

As reported by law enforcement, the losses of the state, in this case, amounted to approximately UAH 3 bn ($110.6 mn

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Mykola Martynenko is accused of embezzling more than $17.2 mn from the state enterprise “Eastern Mining and Processing Plant” (SkhidGZK), an allegation he denies.

Martynenko is a key figure in Ukrainian politics who preferred to stay in the shadows. He is also the main player of Ukraine’s uranium market. Therefore, his arrest will have a large influence on the alignment of forces in politics and the energy market of the country.

Also, it is likely that the cases against Odesa Mayor Hennady Trukhanov, Interior Minister Arsen Avakov’s son Oleksandr, Central Election Commission chairman Mykhailo Okhendovsky and Deputy Defense Minister Ihor Pavlovsky will be sent to trial before the Anti-Corruption Court is created.

Nevertheless, Krasnosilska says that it quite easy to fix the situation:

There should be amendments to the criminal procedure code. It can be issued by the President in any moment and initiated by any MP. It is enough to take the adequate definition on the appeal from the previous decision of the committee and put it to the criminal procedure code. If the president is sincere in his desire to make the Anti-Corruption Court working, we will see this initiative very fast.”

The court and the international tranches

Creating the court was one of the IMF’s requirements for allocating its $2 bn tranche to Ukraine. Another two were raising household gas prices to market levels, and reducing the budget deficit to 2.5% of gross domestic product, down from the current 4%.

Despite the fact that Ukrainian authorities say that the agreement on the court has been reached with the IMF, there is no certainty the question so far. IMF experts is yet to review the document. Also according to KyivPost’s numerous sources, including ex-Finance Minister Oleksandr Danylyuk, lawmaker Serhiy Leshchenko, and Daria Kaleniuk from the ANTAC, confirm that no final deal was reached with the IMF.

The EU had also put forward the requirement on creation on the court for allocating its planned EUR 1bn of macro-financial assistance.

For now, President Poroshenko’s last-minute signature on the freshly voted anti-corruption court law sorts out Kyiv’s worries over the much-needed new financial assistance from Europe, but tensions among the EU members over the policy towards Ukraine are growing.

Council conclusions on Ukraine are being blocked, the biggest group in the European Parliament has openly threatened to hinder the adoption of a law providing financial aid to the country, and the European Commission admits it is concerned by the slow pace of reforms.

At the end the of the day European Parliament has given the threatened green light to the new set of loans over the next two years, but not before a group of senior members of the European Parliament from the biggest EPP group in a rare move publicly warned to withdraw from the agenda the debate and postpone the vote on the EU’s Macro-Financial Assistance for Ukraine.

Read also: EU’s unity on Ukraine under threat by slow pace of reforms in Kyiv

The experts believe that the international tranches are the main reason for the government to work on compromises on the court.й

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,” said Krasnosilska.

Also the voting for the law and promised tranche was a show-off opportunity for the government and politicians before the upcoming Presidential and Parliamentary elections (both in 2019). However, the tactic of delaying worked and it’s very unlikely that the court will start to work before the elections. Meanwhile its creation lacks a significant detail. The adopted law only regulates the process of the selection of judges, while the actual bill on creating the court consisted of only one line has not been passed yet.

Edited by: Alya Shandra

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