At the start of summer 2018, the creation of the Anti-Corruption Court in Ukraine picked up speed. Discussions about the court were ongoing for about two years. On June 7, Ukrainian MPs finally voted for the law defining how the court should be formed. Later, another law which greenlights the actual launch of the court was also passed in Parliament. And on July 12, the last issue was resolved. The MPs voted to fix the scandalous amendment which could have allowed the top-corrupts with an already opened investigation to evade responsibility.
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).
At first the main contended issue regarding the law was whether international experts would have powers to veto prospective candidates to the court. In the final version the compromise on that point was found. 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 the last night before the final voting, 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.
While society and western partners were discussing the compromise, another significant provision was changed in the law at the last moment. The Anti-Corruption Court was stripped of the powers to consider appeals on the decisions of old, unreformed courts in cases which the NABU had already submitted to them. This means if the courts are prodded to pardon the corruptionists investigated by NABU, the Anti-Corruption Court would not be able to interfere.
This is an important detail, considering that the main motivation for creating a separate Anti-Corruption Court for considering high-profile corruption cases was the slim chance that justice would be served in the unreformed old courts. Now all the crimes which the NABU had unearthed could remain unpunished.
The amendment was met with alarm from Ukrainian anti-corruption activists and Ukraine’s Western partners. The IMF intervened in the discussion: its head Christine Lagarde stated that the provision has to be fixed. The US state department also released its statement imploring Ukraine to fix the provision.
The Parliament found an easy solution to fix the amendment – to amend the law on the the Judicial System and the Status of Judges which was already passed in the first reading. The voting took place after a few attempts. In the end 231 (out of the minimum 226) voted for these amendments.
They forbid consideration of appeals on corruption cases (submitted by NABU) by other courts than the chamber of the High Anti-Corruption Court.
The legal stage of the process of the creation of the court is completed.