Ukrainian civil society continues fight for anti-corruption court

Ukraine's judicial reform is at another crucial juncture. It had many troubles already: a crucial civil society watchdog withdrew from the process of what should have been the lustration of judges, and clashes erupted over the future anti-corruption court. These issues are interrelated: the judges' committee that is responsible for selecting the judges to staff the projected anti-corruption court is the same one which the civil society watchdog is boycotting, accusing it of faking the judicial reform.

What the civil society watchdog wants

At the end of March 2018, Ukraine started a new stage of its judicial reform by launching the process of a qualification assessment of its judges - essentially, a lustration of sorts. The Public Integrity Council, a body made of representatives of civil society to assist the High Qualification Commission of Judges (HQCJ) in this process, immediately suspended their participation in it. As Euromaidan Press reported, the PIC members were unanimous in their decision, saying they did not want to give what they called a rigged process the veneer of legitimacy. Neither their suggestions nor their work on assessing the candidates’ integrity and professional ethics were taken into consideration by the HQCJ.

More: Civil society growing tired: public watchdog withdraws from Ukraine’s “faked” judicial reform

The PIC members demanded the HQCJ suspend its assessment until the procedure would be made transparent, the interviews with judges be conducted thoroughly and would last more than the mere 6 minutes on the first day, that newly-adopted regulations of the HCQJ which allow ignoring PIC recommendations be repealed, and that the public would be given more powers to influence the process. PIC's demands were supported by a common statement of the legal NGOs which founded this public body. Fixing the drawbacks of the current assessment of judges is crucial in itself. However, it is also highly important for the next steps of the judicial reform like the creation of the Anti-Corruption Court.

The Supreme Court allusions

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 PIC was not given a decisive role to veto dishonest candidates. After the HQCJ held the competition while ignoring their proposals, activists rang the 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, again, 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.

Anti-Corruption Court debates

Only in the autumn of 2017 did President Poroshenko, who is considered the initiator of the judicial reform, agree that a separate anti-corruption court should be created in Ukraine. Previously, he had maintained that there should be just anti-corruption chambers in courts. Eventually, the president came up with the draft law on the court which has been criticized by Ukrainian civil society representatives as well as by Ukraine’s western partners. One of the main reasons for criticism, which was even mentioned in the requirements of the Venice Commission, concerns the role of international experts in overseeing the selection of judges to the court. The president’s draft law envisioned they would not be given powers to veto candidates. Thanks to a similar role, the PIC was unable to stop the 25% of judges who according to their research had a tainted reputation from becoming Ukraine’s top judges in the Supreme Court: their recommendations were simply ignored.

“We still stand firm in our position – the crucial role of internationals in selecting anti corruption judges is still key to creating an effective anti-corruption court and this is the major line should not be crossed in all the compromises around the draft law on the Anti-Corruption Court,” stressed Anastasia Krasnosilska, advocacy manager at Anti-Corruption Action Centre (ANTAC) (emphasis ours - EP).

In contrast with Poroshenko’s draft bill, both Narodnyi Front [the party of the ex-prime minister Arseniy Yatseniuk] and Batkivshchyna [the party of Yuliya Tymoshenko] submitted amendments which give the Council of the International Experts a binding role. Krasnosilska says that although it’s unlikely that the two parties will go to lengths to give international experts a binding role, the very existence of such a political statement makes it less comfortable for Petro Poroshenko's Bloc to insist upon giving them a purely advisory role. The expert is also confident that the current political situation in the country opens a window of opportunity for the creation of an independent court:

“Does Poroshenko actually have all the resources? Right now we see he does not. His political influence is declining. He still wants to believe that he controls everything, but it's not like this anymore.”

That is why, according to her, apart from Petro Poroshenko’s Bloc, there are no political actors who are interested to have a court controlled by the President’s Office. And this again provides an opportunity for the creation an active anti-corruption court. Recently, the debate was decorated with good news: Venice Commision experts were invited to participate in the development of the draft law for the second reading. Activists believe it will limit drastically the scope of political manipulations in the development of the law. Talking about the importance of giving the crucial role to the international experts, activists provide positive examples of other reforms – the creation of the National Anti Corruption Bureau, patrol police, the Specialized Anti-Corruption Prosecutor's Office and the competition to the Constitutional Court. Regarding the latter, Public Integrity Council member Mykhailo Zhernakov noted:

“We managed to steer it to the right direction: two professors who actually won the competition by getting the highest scores were appointed. This was possible because the competition was administered by the commision created by the president, and Hanna Suhotska the Honorary President of the Venice Commision, was a part of it.”

Krasnosilska estimates that the Parliament will start considering the draft law at the end of April. She also emphasizes it’s important to make everything possible for the draft law to be adopted before the middle of July. After that, the Ukrainian Parliament will be preoccupied by the Presidential and Parliamentary Elections, which will take place in 2019.

Read also:

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• “Ukraine’s former judicial system crumbles” – lawyer who made it to the new Supreme Court
• “Ukraine finally to have independent judiciary.” Interview with Head of Qualification Commission of Judges
• Civil society growing tired: public watchdog withdraws from Ukraine’s “faked” judicial reform