The selection of judges has already been started. Photo: DEJURE Foundation
The launch of the High Anti-Corruption Court (HACC) is a huge step forward for Ukraine. The country’s civil society has been fighting for this for more than two years. First and foremost, the creation of the court offers the opportunity to finally prosecute those involved in high-level corruption. By taking this step, Ukraine has also confirmed that it is keeping to its international commitments. As a result, this will open the doors to additional international funding.
In mid-autumn 2018, International Monetary Fund (IMF) representatives reached an agreement with Ukraine on a new program of economic support. Known as the Stand-By Arrangement (SBA), this support amounts to a total of $3.9bn. The creation of the Independent Anti-Corruption Court was one of the conditions set by the IMF for allocating its tranche to Ukraine. Other conditions involved raising domestic gas prices to market levels and reducing the state budget deficit to 2.5% of gross domestic product. It is expected that the agreement will be signed by the end of the year when Ukraine’s parliament, the Verkhovna Rada, passes the law on the state budget for 2019.
The legal stage of the process of court creation was accomplished in the middle of summer 2018 when Ukraine’s parliament adopted the final outstanding amendment. Civil society representatives have however warned that the main fight is expected to take place at the implementation stage.
At the beginning of August 2018, the selection procedure for 39 judges at the new High Anti-Corruption Court in Ukraine commenced. A total of 342 candidates applied; the institution can start work if at least 35 judges have been appointed. The fight to guarantee a fair selection process is still ongoing. Euromaidan Press has analyzed the challenges which followed the creation process at each stage.
Why is the anti-corruption court needed?
Research conducted by the Razmkov Centre in 2017 showed that only 0.5% of respondents unreservedly trust Ukrainian courts, with only 6.5% answering that they partially trust courts. Despite the author of the judicial reform, President Petro Poroshenko, reporting on its successful completion, in reality, things look rather different. Civil society’s main demand – a renewal of the discredited judiciary – has not occured, with the qualification assessment of judges resembling a formality. The civil watchdog, the Public Integrity Council, even withdrew from the process, stating that the very first day of the qualification assessment proved that “the process is a conveyor belt with only one goal – to report on the completion of judicial reform as soon as possible.”
In 2016, as a part of judiciary reform, it was decided to create a new Supreme Court. Upon its completion in autumn 2017, civil society representatives stated that 29 out of 118 judges did not correspond to the criteria of integrity and professional ethics, with the reputation of a further half of them being in doubt. Amongst these, there are judges who banned peaceful assemblies during the Euromaidan Revolution, grossly violated fundamental human rights as recorded by the European Court of Human Rights, flouted decisions of the same court, submitted dubious information on their declaration of integrity, could not explain their wealth which was obviously disproportionate to their incomes, made politically motivated decisions, helped judges who aided the government in clamping down on Euromaidan activists, evade responsibility etc.
“We [civil society] had a good idea on the creation of the new Supreme Court, but we lost the implementation,” recognized Mykhailo Zhernakov, Head of the DEJURE Foundation and an expert on the Reanimation Package of Reforms.
The situation with the cases on top-corruption is complicated because they generally tend to get bogged down in court.
Up to 31 August 2018, out of 155 cases on top-corruption directed to the courts, there were: In the majority of cases, the accused agreed to cooperate with the investigation.
Up to 31 August 2018, out of 155 cases on top-corruption directed to the courts, there were:
In the majority of cases, the accused agreed to cooperate with the investigation.
The cases are investigated by the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor Office (SAPO), both of which are new institutions started from scratch in 2015. Again, it was civil society organizations led by the Anti-Corruption Action Center (AntAC) which advocated the idea of creating new investigative institutions for top-corruption cases. According to the activists, while reforming the entire system might take too long, the policy of small steps in fighting major corruption is working. During the months prior to adoption of the required legislation for the anti-corruption court, the main discussion revolved around selecting impartial judges.
The IMF actively participated in discussions on court legislation. The institution was aimed at bringing the document into compliance with Ukraine’s obligations under the Extended Fund Facility.
What was the legal stage about?
The chances of everything staying as it was were high, as the author of the reform, Ukrainian President Petro Poroshenko, was promoting the idea of creating anti-corruption chambers within the unreformed regular courts. Nevertheless, the pressure from society and Ukraine’s western partners, where the IMF played a key role, made the president change his mind. At the end of 2017, he submitted his draft law.
Since then, the discussion has moved on to who will select the judges. Society insisted on a leading role for international experts in the process – in particular, providing them with a right to veto dishonest candidates. The President’s office attempted to ignore their role as much as possible. The IMF again became actively involved, with a compromise being found the night before the final vote on the law defining the process of the court’s creation.
Nevertheless, representatives of civil society say that in the end, the compromise is not actually a veto:
“This is not a veto right because [the CIE] can’t say that some candidate may not pass. They can just say that someone does not fit and go to the common meeting of the CIE and the High Qualification Commission of Judges and vote. However if there were a proper HQCJ, there would not be a need for these additional filters,” Halyna Chyzhyk, coordinator of the Public Integrity Council, told Euromaidan Press.
Also, the experts point out another imperfection in the law.
“The law limits the criteria of integrity. The Public Integrity Council developed their own indicator how they define if the person meet the criteria of ethics and morality. But in the law on the anti-corruption court we see that it is limited by only a few factors – and it seems that the CIE will not be able to analyze professional ethics, for example,” said Iryna Shyba, Senior Project Manager of the DEJURE Foundation during a meeting devoted to the court organized by the Reanimation Package of Reforms [RPR].
The legal stage of the process did not end with the bill’s being passed. When the text of it was released, it transpired that it contained a dubious amendment. In the best traditions of the Ukrainian Parliament, it was placed there at the very last moment, using the fact that all attention was drawn to the provision regarding the international experts. The amendment stripped the HACC of the powers to consider appeals on the decisions of old, unreformed courts in cases where the NABU had already submitted them. This means that if the courts were prodded to pardon the persons being investigated for corruption by the NABU, the Anti-Corruption Court would not have been able to interfere.
At the time the law was being passed last summer, among the most notable cases of the anti-corruption investigative institutions was the one against Fiscal Service head Roman Nasirov, who is suspected of causing $73.7m damage to the state; the case against the gray cardinal of Ukrainian politics, Mykola Martynenko, who is accused of embezzling more than $17.2m from the state enterprise Eastern Mining and Processing Plant; and the large-scale so-called gas case in which losses caused to the state amounted to about UAH 3bn ($106mn). Its main organizer is MP Oleksandr Onyshchenko.
In the pre-Euromaidan period, these people would have been considered untouchable, and investigations against them barely conceivable.
When the suspect amendment was revealed, society once again raised the alarm and demanded parliament change it. IMF in its turn set another condition – no amendment, no loan; other western partners followed suit. The Parliament had no other choice but to resolve the situation.
The legal stage was thus completed.
What is the main threat to an impartial competition?
Activists stress that the main threat comes from the institutions of judicial self-governance – the High Qualification Commission of Judges and the High Council of Justice, as it is them who will play the major role in selecting judges.
“We should change the principles of creation of HQCJ and HCJ and the rules of the game. That’s the only thing which would help. However, the question is whether the political situation in Ukraine allows us to do it,” explains Chyzhyk.
The expert goes on to say that formally the institutions have no political influence – the Verkhovna Rada is excluded from the process and the president only has ceremonial functions. It is the HQCJ that deals with all personnel issues and the HCJ who approves the candidates and deals with the question of maintaining the judges’ disciplinary responsibility. 50% of both institutions are selected by the Congress of Judges.
“So judges meet at the congress and appoint their delegates there. It’s obvious that mostly they are not interested in new people willing to change something. They appoint people who will guarantee them that everything would be kept as it is,” says Chyzhyk.
Zhernakov agrees that thus far the Ukrainian judiciary has not shown readiness to embrace such a standard.
“We adopted the Council of Europe standard of majority of judges elected by judges in the judicial governance bodies too soon. It is not a bad standard, but it’s not the right time to adopt it here in Ukraine. Because it’s a clear conflict of interests.”
Chyzhyk adds that despite the Parliament and the President being formally eliminated from the process, there is still strong informal political influence on HQCJ and HJC.
“There are people in these bodies that are ready to keep implementing orders. For example, HCJ member Oleksiy Malovatskyi used to work as a lawyer in Poroshenko’s headquarters. Journalists saw members of HCJ and Serhiy Koziakov [the head of the HQCJ] at midnight near the President’s office. They said they were going to meetings on the judicial reform. However, the decisions they made further leads us to conclusions that there is political influence, and protection of some people is taking place. Even if you take a look at the appointments for the Supreme Court, you’ll see that there are people who are beneficial for the President’s office.”
The experts note that the legislative challenges have not ended and that now the same attention should be paid to the implementation part.
“There are different technical obstacles and possibilities during the different parts of the procedure to manipulate the process. And this is extremely important for the international community and for Ukrainian civil society to make sure that each stage of the competition is going to be monitored as attentive as the process of creating this court,” said Maksym Kostetskyi, the legal adviser at Transparency International Ukraine at the RPR meeting.
The experts are also worried that the court will be formed out of suboptimal candidates.
“Even if the CIE had real veto rights, it would not decide who becomes a judge. During the competition to the Supreme Court the best candidates weren’t selected,” says Chyzhyk. The expert turns to the example of candidate Maksim Selivanov who was at the top of the list after the exams, but dropped back after the psychological tests. Allegedly, as Selivanov used to work as a private entrepreneur and has never been subordinated to anyone, he cannot become a judge at the Supreme Court.
To stress the importance of transparency and illustrate how it can be neglected, Chyzhyk again mentions the competition to the Supreme Court.
“The law defines that only the results of moral and psychological tests should not be published and that the secret of the meeting room is protected by the law. But the HQCJ invented other clauses that the law supposedly obliged them to hide. For example, at the first stage of the assessment where the candidates had to write a court decision on a fabula of a case, we have seen neither the fabula, nor the methodology of the assessment. We called on them to show it, but they didn’t. I think there were some manipulations at this stage.”
Koziakov’s usual retort is to compare the Supreme Court competition to the pre-Euromaidan times.
“We can compare the procedure of selecting the Supreme Court to the one five years ago. I want to remind you – no one saw the list of the candidates. Was there any methodology? No. Were the test questions were published? No,” Koziakov went on to list the changes.
During the meeting with potential candidates for the court, members of the HQCJ, and society, lawyer Public Integrity Council member Vitaliy Tytych drew attention to the USAID report which recommended the HQCJ reduce the role of subjective criteria in the assessment.
“The basic thing to provide the competition is to assure equal participation and understanding how a person will be assessed,” said Tytych.
On the eve of the assessment, the experts confirmed that very little had changed in the HQCJ’s methodology.
Also, HQCJ stopped publicizing information on the judges and the decisions of the HQCJ on the request of society, namely – it refused to disclose full information on the judges’ dossiers.
The HQCJ already reviewed all the submitted documents and disqualified 69 candidates out of 342. The main reasons were lack of proven experience for lawyers and the previous record of work at law enforcement bodies (candidates should not have worked in law enforcement for the last 10 years).
The process dragged on because the HQCJ delayed selecting the CIE experts. On November 6, the commission announced the names of the six CIE members.
The Ukrainian office of Transparency International, the DEJURE Foundation, and Automaidan called on the HCQJ to provide the international experts with conditions required for proper participation in the competition. These include determining the order of access to judges’ dossiers for them and their translators, providing them with access to the candidates’ practical tests, setting clear criteria of integrity and standards of determining whether a judge meets them.
The selection process has already been started. It is expected to end by February or March 2019.