Before the final voting, Yaroslav Yurchyshyn, Chief Executive of Transparency International Ukraine said that the bill which was considered today is much better than one which was considered at the beginning. In general, all the recommendations of the Venice Commission, which was invited to participate in the development of the draft law for the second reading, were taken into account.
Among almost 2,000 amendments there was a crucial one – to give international experts the right to veto dishonest candidates. A compromise on the question was reached only the night before the vote.
MP Mustafa Nayyem confirmed that the Council of the International Experts would have a right for an actual veto. Previously, the Ukrainian side insisted that the High Qualification Commission of Judges (HQCJ) consisting of 16 members would be able to overcome the veto with two-thirds of votes. During the negotiations last night, a decision was reached that the HQCJ won’t be able to overcome the veto alone. It will be able to do so only if half of the Council of International Experts (CIE), three out of six members, will also support the decision. Three members of the CIE will also be able to initiate the procedure of overcoming a veto. Together, the HQCJ and CIE make up the General Commission, consisting of 22 members.
However, the MP wrote that the independence of the court now depends on the independence of four members of the Council of International Experts. And whoever gains control over three of the experts will receive a guaranteed right to initiate a review of controversial issues by the General Commission.
35 judges are needed for creating the court. Only citizens of Ukraine can become a judge in it.
Why Ukraine needs the court
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. During the three years of their existence, they directed more than 135 cases on top-corruption to courts. Anastasiya Krasnosilska, advocacy manager at the Anti-Corruption Action Center (ANTAC), an NGO which was one of the main initiators of the idea of the Anti-Corruption Court, explained to Euromaidan Press why at the beginning the solution did not seem obvious:
“In 2015 we hoped for a judicial reform. There were expectations that in post-Euromaidan Ukraine, the judicial branch will not shut their eyes to cases of high-level corruption and make fair decisions in them, at least considering the pressure from society.”
The expert concludes that observing the hiccups of the judicial reform and lack of progress in the prosecutor’s reform, representatives of civil society started to promote the idea of creating a separate Anti-Corruption Court:
“We realized that we should apply the same approach as with NABU. In 2014, we also were told that we do not need the bureau because there will be the prosecutor’s reform and all the prosecutor’s offices and investigations will be independent. At that time, we said: no, there might be a lack of political will for a big reform. It will take many years, let’s move according to the policy of small steps.”
In the beginning, Ukrainian authorities resisted their idea. 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. It was swiftly criticized by Ukraine’s civil society and western partners.
Its crucial issue was the role of international experts in the process of selecting judges. The Parliament passed the bill on the Anti-Corruption Court on the 1 March 2018. The IMF, the World Bank, and the EU stated that the bill violates Ukraine’s obligations and does not meet the requirements of the Venice Commission..
German political scientist Andreas Umland is confident that the creation of the Anti-Corruption Court in Ukraine has two meanings. The practical one is about the creation of a court which will consider cases of corruption of top officials. And a symbolical one: it is important for western politicians who stand for continuing to support Ukraine, as they have to explain the financial support to Ukraine to their voters, parties and the Parliament.
Reservations about a full victory
So far the text of the newly adopted law on the Anti-Corruption Court has not been made public. Some activists warn that it’s not the time to celebrate yet.
“With all these amendments it is not clear yet which bill MPs voted for,” wrote Halia Chyzhyk, coordinator at the Public Integrity Council (PIC), a watchdog tasked to oversee the selection of judges to the Supreme Court. The experience with creating the Supreme Court has been a bitter one for the civic activists of the PIC. Their assessment of every fourth judge failing to fit the criteria of integrity and professional ethics was ignored and candidates with the capability of making politically motivated decisions were approved to take part in the newly created top-court.
The reaction of Roman Kuybida, deputy Head of the Center for legal and political reform and also a member of PIC, was restrained.
“My reaction is sober-minded. This is an opportunity for some progress. But I predict that the authorities will do everything possible to put their judges into the court. And international experts will not be able to prevent this since the winners will be determined by the current members of Higher Qualification Commission of Judges without the participation of the international experts. There are huge possibilities for forming the court which can be manipulated. I think this was the reason for such a big support to the law – 315 votes. In addition, there are big chances that the court will not be created at all, as in order to launch it, there is a need for one more law,” he told Ukraine World.
The Head of the DEJURE Foundation Mykhailo Zhernakov pointed out that the adopted law only regulates the process of selection of judges, while the actual bill on creating the court has not been passed yet. He also says that the procedure of selecting judges to the HQCJ is yet to be improved, as the existing one is nontransparent and allows for manipulations. There are also issues with selecting the experts to the Council of International Experts and judges as well.
Also, today another crucial decision was made in the Parliament. 289 MPs voted for appointing Volodymyr Vasylenko as a new auditor of the National Anti Corruption Bureau (NABU). The 82-years old human rights activist used to work as a judge of the UN International Court and as a representative of Ukraine in the UN Council on the human rights. He is also the father of an acting member of the HQCJ, Andriy Vasylenko. The leadership of the NABU can be fired as a result of an audit. President Petro Poroshenko has been accused of trying to install auditors loyal to him so that he can control the bureau and potentially fire NABU Chief Artem Sytnyk. Referring to Apostrof, Kyivpost writes that Vasylenko is the government’s preferred candidate for NABU auditor.
Meanwhile, the Chief executive of Ukrainian Institute for the Future Victor Andrusiv raised concerns on the effectiveness of the court, considering the situation with other anti-corruption bodies, particularly – the SAPO.
“What would be the meaning of the Anti-Corruption Court if the prosecution will be represented by Nazar Kholodnytskiy?”
In February-March 2018, NABU together with the Prosecutor’s General Office started a criminal investigation against SAPO Head Kholodnitsky and bugged his office. According to the head of NABU Artem Sytnyk, the recording showed that Kholodnitsky poured information on the preparation of searches to suspects; pressured officials, including judges, to make certain decisions; incited witnesses to false testimonies. The prosecutor himself rejects the obligations.
Andrusiv emphasizes that the new IMF loan will let the Prime Minister Hroysman to gain more votes during the elections while the general debt of Ukraine increases.
However, Vitaliy Shabunin, Head of the Anti-Corruption Action Center, is jubilant.
“Hurray! 2.5 years of work. This is not the final victory, but a huge step towards it. Now Poroshenko, according to the Constitution, needs to put forward a law consisting of one sentence, on the creation of the Anti-Corruption Court. Petro Poroshenko, actions, not words. Please, a law to the Verkhovna Rada labeled as urgent.”
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