Establishing the High Anti-Corruption Court has been one of Ukraine’s major recent successes in the battle against corruption. However, as not all administrative steps have been concluded, for the next three weeks or so the court will not start working in full. So far, only the first stage – hiring judges – has been concluded. The following steps will to a certain extent also be defining.
Despite Ukraine having declared war against high profile corruption earlier during the launch of the new investigative institutions – the National Anti-Corruption Bureau (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAPO) in 2015 – society has not seen the results it had expected, in particular the imprisonment of corrupt senior officials. During the last four years, the NABU and SAPO directed around two hundreds cases to courts. But thus far, progress has mostly been blocked at that stage.
This is why civil society representatives have advocated for creating a specific court for a specific problem – high-level corruption. The idea made it through the opposition of the system – in summer 2018 the Ukrainian Parliament, the Verkhovna Rada, voted for the law on establishing the High Anti-Corruption Court. The selection of judges to sit on it took place in autumn-winter 2018-2019.
The Public Council of International Experts (PCIE) consisted of 6 members from Great Britain, Lithuania, Canada, Denmark, and Macedonia. Their participation represented a demand from society and Ukraine’s international partners. Their role was to monitor the candidates’ integrity and professionalism. After identifying those candidates considered suspect, they had a joint meeting with the High Qualification Commission of Judges (HQCJ), a body of judicial self-governance. As a result, 38 judges were appointed. The competition was praised by stakeholders for its transparency.
“Of course, we will be able to make the final assessment when the judges start to do their job, to make decisions. However, for me its greatest value is that some anti-corruption cases are already starting to be considered at lightning speed by the court. It suggests that not only civil society believes in the independence of the Anti-Corruption Court, but people who are already sitting in the docks are afraid of trials with the newly elected judges,” said Iryna Shyba, Executive Director of the DEJURE Foundation, civil society organizations actively involved in the judicial reform.
Other processes within the judicial reform in Ukraine have not been so successful. In the course of two selection rounds to the new Supreme Court, 193 judges were appointed. Of these, 44 were considered dishonest, according to the Public Integrity Council (PIC), the public body created to assist the High Qualification Commission on assessing the professional ethics and integrity of judges. In 2018, in the middle of the qualification assessment of judges, the PIC withdrew from the process. The main reason concerned the HQCJ ignoring their conclusions. In their turn the PIC did not want to legitimize the results of the assessment.
However, with the High Anti-Corruption Court things have proceeded differently. The PCIE is considered to be the key component for the Anti-Corruption Court’s success.
“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,” said Shyba while the process of the selection of judges was ongoing.
The experts say that the PCIE’s role was historical. However, there were other components which contributed to the result. Apart from the PCIE, Levan Duchidze, director of the International Law Organization in Ukraine names the following:
- Those international organizations involved.
“I used to take part in similar processes in my and other countries. Often I observed how uncoordinated international partners work. Here I observed such a coherent form of cooperation, the results of which the Ukrainian side was able to use as efficiently as possible,” said Eka Tkeshelashvili, the Head of Programmes at the European Anti-Corruption Initiative to Ukraine.
- Local experts involved in the process.
- The state institutions. Duchidze noted that despite HQCJ involvement in the four selection processes simultaneously, it still found a way to manage the process. Also, notwithstanding disagreements with partners, compromises were found.
- Local partners, including civil society organizations which started from the advocation of the idea to create the court, later participated in drafting the corresponding law, and then helped the PCIE with their expertise.
Ukrainian and international experts recognize that the success is important not only in the context of the Anti-Corruption Court. Its example can be extrapolated on the work on other institutions.
The date when the court is expected to start working is 5 September. The processes leading up to it raise certain concerns.
The infrastructure. The premises allocated to it do not correspond to the requirements written in the law.
“The premises allocated by the Cabinet of Ministers in November 2018, unfortunately, are not adapted to the court’s functioning. It requires major repairs, alterations, and reconstruction – it will take some time. Now there is a question which needs to be solved on providing the High Anti-Corruption Court with temporary premises. The Kyiv Pechersk District Court building cannot physically accommodate all the front office employees and judges who are needed for the court institution’s functioning,” explained Olena Tanasevych, the newly elected head of the court.
Nevertheless, Zenoviy Kholodniuk, the Head of the State Court Administration of Ukraine, considers the above-mentioned building as the best option for the Anti-Corruption Court to stay in until its own premises have been repaired. According to him, this will happen at the very beginning of 2021.
The front office. On 17 May, as a result of the selection procedure Bohdan Kryklyvenko was chosen head of the court front office. Kryklyvenko is a human rights activist, the founder of the Ukrainian Institute of Human Rights NGO. For many years he worked as the head of the Ombudsman’s Secretariat. The head of the front office will be responsible for the document flow in the court, protection of information, prevention of information leaks, non-interference in the classification of cases, and independence of the other employees of the court. 13 people took part in the selection procedure.
However, some of the other appointments to the front office take place without a transparent selection procedure. Partly it is needed to organize competitions for other positions in the front office. The experts emphasize that the number of people hired without an open procedure should remain minimal.
Powers of Qualification Commission members
The High Qualification Council of Judge’s members. Photo: HQCJ’s website. Koziakiv is wearing a red tieOn 15 May, the Kyiv District Administrative Court recognized the lack of power available to Serhiy Koziakov, the Head of the HQCJ and his deputy, Stanislav Shchotka. The main argument was that both men’s period of work as defined by the law had already expired. The decision was made by the court which during the last months passed a number of questionable decisions and has been criticized for not being reformed.
“Now a powerful attempt at revenge, an attempt to appeal the legitimacy of the results of the judges competition is taking place,” Koziakov commented on the news.
Mykhailo Zhernakov, the Chairman of the Board of the DEJURE Foundation, agreed that recognition of the HQCJ heads’ lack of powers risks the results of the competitions to the HIgh Anti-Corruption Court potentially being canceled.
“The situation looks like a fight between the one and other members of the HQCJ, between the political forces which control them,” said Zhernakov.
Nevertheless, he also agrees that the squad of the HQCJ does indeed need to be renewed, but not because of political infighting.
The HQCJ stated its disagreement with the court order. The court reacted that the disagreement was aimed at misleading society.
While the newly created Anti-Corruption Court goes through the ongoing challenges, Artem Sytnyk, the head of the National Anti-Corruption Court, voiced the greatest challenge for the court in the future.
“On numerous occasions we witnessed how judges made lawful decisions in cases which the NABU and the SAPO investigated, and were then subjected to reprimands or disciplinary proceedings,” said Sytnyk.
According to him, it is important to avoid negative consequences for the judges who will work on the high-profile cases.
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- Saving Ukraine’s Anti-Corruption Court: international experts filter candidates, facing roadblocks from old system
- Here is how Ukraine can finally prosecute top-corrupt officials
- The Court – Euromaidan Press documentary on the creation of the Anti-Corruption Court