Satu Kahkonen, the World Bank director responsible for the Ukrainian direction, has sent a letter to the Ukrainian Parliament and President’s Administration, in which she warned about the inadmissability of adopting President Poroshenko’s version of the law on the High Anti-Corruption Court (HACC), Yevropeiska Pravda reported. The outlet published a copy of the letter.
In its letter, which comes only days after a similar letter by the IMF, the World Bank warned that Ukraine needs to make sure the president’s draft law on the HACC is in line with the recommendations of the Venice Commission if it wants to receive the $800 million Policy-Based Guarantee to support key reforms in Ukraine. The draft law, submitted to the Ukrainian Parlament on 22 December 2017, was criticized by anti-corruption activists for its potential to allow the appointment of dishonest judges to the court which is seen to be the final missing link in the chain of anti-corruption institutions opened after the Euromaidan revolution, as well as delay its launch (for more, see: Will Ukraine’s Anti-Corruption Court be another imitation of reforms?)
Most of the demands of the letter coincide with that of the IMF letter (see the publication: IMF slams presidential draft bill on anti-corruption court in Ukraine), which in turn, are in line with the criticism of anti-corruption activists. However, the positions of the World Bank and the IMF differ in the possible procedure of changing the law.
In its letter, sent on 11 January 2017, the IMF addressed Ihor Rainin from the President’s Administration, hoping that President Poroshenko would submit a revised law. The President’s Administration responded with criticism, stating that they don’t intend to submit a new law, and that “all discussions about certain norms must be held within the legal framework in the Ukrainian parliament.” The letter from the World Bank, however, addresses, first of all, the Chairman of the Verkhovna Rada Andriy Parubiy, and stresses that a new law isn’t necessary, its revision will be sufficient.
“We believe that the points noted above can be addressed through the legislative process provided there is strong leadership and guidance from the President and leadership of the Parliament,” it says
The letter states that three revisions to the law are necessary if Ukraine wants to unblock the financial assistance from the World Bank.
1) Change the jurisdiction of the HACC. It stresses that the HACC’s jurisdiction, as envisioned now, is broader than that recommended by the Venice Commission but also falls short of encompassing all of the cases under the jurisdiction of the newly-created National Anti-Corruption Bureau (NABU) and Special Anti-Corruption Prosecutor’s Office (SAP). According to activists, this could cause the danger of an overload, as the HACC would be tasked to deal not only with NABU cases, but also those investigated by the National Police and and the State Investigative Bureau. According the Venice Commission it should have been only the cases of the jurisdiction of the NABU and SAP, in order to allow the corruption wrongdoers identified by the previous institutions to be brought to justice.
2) Change the qualification requirements for judges. “The draft Law stipulates a broad and unrealistic set of qualifications for candidates to serve as judges on the HACC… These requirements will have the effect of greatly limiting competition for anti-corruption judges,” the letter says. First of all, it mentions the unrealistic requirement of both substantial experience in fighting corruption at international organizations or international judicial institutions and substantial experience in Ukraine.
3) The Public Council of International Experts needs to be given a right to veto dishonest candidates to the HACC. “Since the PCIE is provided only an advisory role, its decision that a candidate is unqualified could be overruled by a two-thirds vote of the High Qualifications Commission,” the letter states, mentioning that a similar procedure used in the recent Supreme Court selection process resulted in about 60 percent of candidates found unfit by the Public Integrity Council being nominated. “Such an advisory role (rather than a crucial and binding role) undermines the credibility and trust that international participation can bring to the selection process,” the letter warns, and separately recommends that not only international organizations but also donors be eligible to participate in the Public Council.
As well, the letter lists the provisions which can lead to a delay in the HACC’s launch.
“We […] encourage you to move forward expeditiously with the necessary revisions to the draft law, as well as to secure parliamentary approval at the earliest opportunity,” it concludes.
The HACC 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.
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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