Anti-Corruption Court in Ukraine: so far, so good, but dangers lie ahead

The joint meetings of a council of international experts and the Ukrainian body of judicial self-governance are over. Photo: sud.ua. 

Reforms

On 28 January 2019, Ukraine made another step forward in the creation of the long-awaited High Anti-Corruption Court, which would ensure that corrupt top-officials are brought to responsibility: the joint meetings of a council of international experts and the Ukrainian body of judicial self-governance are over. This was the last stage of the process with the participation of international experts, whose work was a ray of hope for creating a fair and effective institution. They managed to filter out 40% of untrustworthy candidates.

However, the remaining stages will be held under the control of Ukraine’s bodies of judicial self-governance, which have a shady reputation. Civil society representatives warn about possible manipulations in the further process.

The participation of international experts in the process of creating the anti-corruption court was a demand of Ukraine’s western partners and civil society. Their task was to check the candidates integrity and professionalism. The Public Council of International Experts (PCIE) consisted of 6 members from the Great Britain, Lithuania, Canada, Denmark, and Macedonia. After identifying the dubious candidates, they had a joint meeting with the High Qualification Commission of Judges (HQCJ), a body of judicial self-governance consisting mostly of judges selected by judges. Ukraine’s civil society was sceptical of the HQCJ’s reform potential, and for a good reason – the existing judicial esprit de corps made it unlikely that a serious revision would happen.
Indeed, the first round of the judicial reform, the competition to the Supreme Court in 2017, proved that the HQCJ is not ready to toss out dishonest judges. But during the competition to the Anti-Corruption Court, the HQCJ was not able to overturn the international experts’ veto. The international experts red-flagged 49 out of 113 candidates who successfully passed the exams held by the HQCJ. After the foreign experts meetings with the HQCJ, 42 such candidates were booted out. Seven managed to prove that the doubts regarding their reputation were groundless.

Meeting the expectations

Ukraine’s civil society organizations praised the work of the PCIE members as they were strict, withstood manipulations, and managed to do what society was fighting for – to toss out unworthy candidates.
To say that the result was a huge step forward would be an understatement. To understand why, let’s return to the previous processes of Ukraine’s judicial reform – the creation of the Supreme Court. Then, the role of the watchdog was given to civil society representatives – the Public Integrity Council (PIC), and the contest was held by the judicial body of self-governance, the HQCJ.
The latter proved themselves unable to conduct a genuine renewal of Ukraine’s notoriously corrupt judiciary. They ignored the PIC’s drastic volunteer attempts to pin down bad judges. Who are the bad judges in Ukraine’s case and how does one find them, you may ask? The country’s recent strides forward in transparency obligated all of them to submit asset declarations. Based on them, and open source information on the judge’s lifestyles, the activists were able to pinpoint suspects of illicit enrichment. As well, they checked the judge’s track records of making unjust politically motivated decisions, including repressions against activists of the Euromaidan revolution, which deposed president-turned-autocrat Viktor Yanukovych in 2014.
However, the HQCJ did not heed the advice of the civil society watchdog – as it was not legally obliged to – and the judges with a sleazy reputation continue to work.
But during the competition to the Anti-Corruption Court, the HQCJ was legally required to put up with the conclusions of the international experts. In the very first meeting, the PCIE blacklisted eight candidates. Two out of them were the so-called Euromaidan judges who persecuted activists of the revolution. Another two covered such judges later.
Overall, civil society representatives are satisfied with the outcome of 42 banned candidates, as well as those who managed to disprove the accusations against them – except for one judge.

Read also: Saving Ukraine’s Anti-Corruption Court: international experts filter candidates, facing roadblocks from old system

Four civil society organizations blacklisted 55 candidates out of the total 113. Photo: Photo: Transparency International Ukraine.

Previously, four civil society organizations teamed together to present their own list of unworthy candidates to the Anti-Corruption Court. They blacklisted 55 candidates out of the total 113.

“I want to clarify that our list included unworthy candidates, not only dishonest ones. We used very broad approaches to identify who is unworthy. There have been unworthy candidates, those who violated professional ethics, as well as those who had political connections. The PCIE had a smaller mandate. They only checked their integrity and professionalism. So their list was smaller,” Iryna Shyba, Head of Projects of the DEJURE Foundation told Euromaidan Press.

What to expect from the next stages

The next stage of the competition will take place under the control of the bodies of judicial self-governance. The HQCJ is able to rank the list according to its own preferences.
Shyba explains that now the Commission will have interviews not only with the candidates who were not interviewed together with the PCIE, but with those who have already been interviewed.

“During these interviews the Commission will again assess their integrity. There are many components in the total score of the HQCJ. However, there is no clear methodology of the assessment, it has not been published anywhere. Consequently, the Commission can give the maximum amount of points to a person who scored less in the previous stages, putting them at the top of the list. So with this manipulation, the Commission can include those whom they want in the list of winners.”

Another key institution taking part in the process is the High Council of Justice (HCJ) – it is the final body which approves the candidates. It can refuse to appoint a candidate if the appointment can have a negative impact on public trust in the judicial system. However, during the competition to the Supreme Court, the HCJ refused to check information which has already been checked by the HQCJ in the majority of cases.

“We for sure will submit appeals to the HCJ and check whether there will be candidates who, for example, have political connections. This fact itself is not a sign of disintegrity, however it opens opportunities for the judge to be influenced in the future, to be controlled by political forces, and for society to mistrust him.”

The expert confirms that the civil society organizations will monitor the next interviews and assessments of the HQCJ and try to make the competition more transparent by demanding to provide information which should be public but wasn’t published.

The problem of respect

The participation of the international experts in the process of creating the Anti-Corruption Court already made a positive impact. However, it only underlined the fact how much the institutions of judicial self-governance disrespect local activists.

“The authority of the international experts for them was stronger than the authority of activists. The institutions which nominated the international experts followed the process attentively. So they [the HQCJ] could not ignore PCIE opinion or forbid them from asking questions. Also the PCIE had a stronger mandate and powers than the Public Integrity Council. So the concerns the PCIE members raised regarding candidates were harder to overcome. For that, the HQCJ was obliged to not only express its opinion, but to change the opinion of the international experts,” Shyba said.

At the same time, the expert emphasizes the Commission’s disrespectful attitude towards the civic society representatives, despite highly qualified specialists volunteering their time for activism.

“It is a general trend in the country. For example, there was an article which described activists as a special kind of criminals, and the judges shared it. Unfortunately, the attitude of many state officials to the civic society representatives is disrespectful.”

To conclude: the participation of Ukraine’s western partners is crucial in the process of creating new reform-minded institutions in the country.
At the next stage, the remaining 71 candidates to the Anti-Corruption Court will go through interviews with the HQCJ. Up to 4 February, the Commission interviewed 34 candidates. Afterward, it will form a rating, where the first 39 candidates will pass. Then the HQCJ gives it to the High Council of Justice which in its turn gives it to the president. The president has to appoint the judges in 30 days and has no right to refuse.

Edited by: Alya Shandra

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