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Ukraine’s President Petro Poroshenko has opposed the creation of an anti-corruption court for more than a year, until he could no more.
Poroshenko’s denouncing of the anti-corruption court — the final link required to prosecute corruption in Ukraine — has recently brought him criticism of the Western partners and outrage at home.
But on Oct. 4, the president nominally reversed course and supported the court’s creation.
It happened when it became known that the European Commission for Democracy through Law, better known as the Venice Commission, would come out in support of such an institution days later.
The commission indeed backed an opposition bill to create an anti-corruption court on Oct. 9 and rejected Poroshenko’s idea of instead creating anti-corruption chambers within Ukraine’s discredited judiciary. The Parliamentary Assembly of the Council of Europe on Oct. 12 urged Ukraine to adopt all of the commission’s recommendations.
But if the anti-corruption court is created, anti-corruption activists fear that Poroshenko will try to make sure that he controls the selection process. This is why Ukrainian activists are seeking foreign oversight of the competition.
Also, Poroshenko suggests that the appeals to the anti-corruption court’s rulings be considered by the Supreme Court.
Ukraine’s current judicial system, even after the appointment of 111 new Supreme Court justices, remains distrusted and discredited — failing to prosecute successfully a single corruption case. The new anti-corruption institutions are also ineffective because they have no reliable courts to hear their cases.
Protest pressure
However, many fear protests are the only way to convince Poroshenko to act swiftly. The creation of an anti-corruption court is among the key demands of a major rally that opposition parties plan for Oct. 17 in Kyiv, coming ahead of the March 2019 presidential and parliamentary elections.
Lawmaker Iegor Soboliev told the Kyiv Post that the president and other incumbent politicians live in fear of a third uprising, coming after the 2004 Orange Revolution and 2013–2014 EuroMaidan Revolution. The first one prevented ex-President Viktor Yanukovych from coming to power while the second one drove him from power.
State Fiscal Service Chief Roman Nasirov, a suspect in a corruption case, during a hearing at Kyiv’s Solomyansky Court on March 5, with an officer of the National Anti-Corruption Bureau standing guard. The case is stalled. (Volodymyr Petrov)
“The threat of a popular uprising scares Poroshenko the most,” said Soboliev, who is the chairman of parliament’s anti-corruption committee.
The International Monetary Fund could put pressure on Poroshenko by cutting off funding until the anti-corruption court is in place, lawyer Markiyan Halabala and Anastasia Krasnosilska, an expert at the Anti-Corruption Action Center, told the Kyiv Post.
The United States and the European Union can also demand that Ukraine fulfill its commitments to the International Monetary Fund, including the promise to create an anti-corruption court, before they provide any non-IMF financial assistance, Krasnosilska added.
Political influence
If the political will is there, a law on the anti-corruption court could easily be passed by November, and the court itself could be created by June or July 2018, Vitaly Shabunin, the head of the Anti-Corruption Action Center’s executive board, told the Kyiv Post.
Experts argue, however, that Poroshenko’s strategy will be to stall for time indefinitely.
“His proposal to create a working group means that he wants to shift responsibility to parliament,” Mykhailo Zhernako, a judicial expert at the Reanimation Package of Reforms, told the Kyiv Post. “And he can then say that the process is being delayed by parliamentarians.”
Under the opposition bill, which was submitted by Soboliev and other lawmakers, the Verkhovna Rada, the president and the cabinet will each delegate three commission members to appoint anti-corruption judges.
The Venice Commission said, however, that members of the Competition Commission tasked with appointing judges of the High Anti-Corruption Court should not be designated by political figures and suggested that the High Qualification Commission of Judges should nominate members of the Competition Commission.
However, the High Qualification Commission has itself been criticized for being controlled by Poroshenko and the People’s Front, the parliament’s second biggest party — an accusation that the commission members deny.
The Public Integrity Council, a civil society watchdog, said on Oct. 3 that it had “grounds to assume that the (recent Supreme Court) competition was rigged” by the High Qualification Commission and the High Council of Justice, so that it would appoint politically loyal candidates.
Foreigners’ role
One crucial issue is whether Poroshenko will agree to the participation of independent foreign institutions in the competition to select anti-corruption court judges. Poroshenko hinted that he won’t, saying that Ukraine can create an anti-corruption court “on its own.”
The Venice Commission recommended that foreigners play an important role in the competition to select anti-corruption judges.
According to the opposition bill, foreign donors would nominate three of the Competition Commission’s nine members, and they would be automatically appointed by the justice minister.
In May, a working group of Ukrainian civil society groups and foreign donors went even further and concluded that people nominated by foreigners should be in the majority on the Competition Commission, to guarantee that anti-corruption judges are independent.
Other hurdles
Under Ukraine’s Constitution, anti-corruption judges chosen by the Competition Commission will still have to be approved by the president-controlled High Qualification Commission and High Council of Justice, and be formally appointed by the president.
According to the opposition bill, the High Qualification Commission, the High Council of Justice and the president do not have a right to refuse to appoint the nominees. However, Poroshenko may still give them the right to block the appointment of anti-corruption judges in his future legislation.
Public trust in the High Qualification Commission and the High Council of Justice is low. Twenty-five discredited judges deemed corrupt or dishonest by the Public Integrity Council were nominated for the Supreme Court by the High Qualification Commission in July and approved by the High Council of Justice in September.
Another way for Poroshenko to block corruption cases would be through the appeals.
Lawmaker Mykhailo Dobkin, who recently left the Opposition Bloc faction, at a hearing at Kyiv’s Pechersk Court on July 15. Dobkin has been charged with abusing his powers during the allocation of land plots. (Volodymyr Petrov) (Kostyantyn Chernichkin)
He suggested that the appeals to the rulings of the anti-corruption court be considered by the yet-to-be-created anti-corruption chamber within the Supreme Court.
If the anti-corruption chamber is staffed by judges recently appointed to the Supreme Court, the Presidential Administration will be able to influence them, Mykhailo Zhernakov and Roman Kuybida, experts from the Reanimation Package of Reforms, told the Kyiv Post.
“The competition procedure should be the same (for the High Anti-Corruption Court and the Supreme Court’s anti-corruption chamber),” Zhernakov said. “Otherwise all of this becomes meaningless.”
The opposition bill and the Venice Commission, however, envisage a new competition to select judges for the Supreme Court’s anti-corruption chamber, including the participation of foreigners to ensure their independence.
In a limited number of cases, the final instance for appeals would be the Supreme Court’s Grand Chamber, which is part of the conventional discredited judiciary.
Poroshenko has also suggested creating anti-corruption chambers at lower-level courts, which may delay the process even further, Krasnosilska said.
Collapse of law
Another problem is that the amendments to procedural codes passed by parliament on Oct. 3 may kill any corruption investigations pursued either by future anti-corruption courts or by conventional ones, due to the limited term of investigations and other hurdles they impose.
According to the initial text of an amendment initiated by Radical Party lawmaker Andriy Lozovy, prosecutors would have to file notices of suspicion for suspects in criminal cases within six months for grave crimes, and within three months for crimes of medium severity. Moreover, all cases must be sent to trial within two months after a notice of suspicion is filed, according to the amendment.
People’s Front lawmaker Leonid Yemets said on Oct. 5 that the final version of the codes envisaged a term of one-and-a-half years for grave crimes, and one year for crimes of medium severity. The courts will be able to block investigations by refusing to extend their terms, and their decisions to close cases cannot be appealed.
Critics say the new terms are still insufficient. Shabunin and Sergii Gorbatuk, head of the in absentia unit at the Prosecutor General’s Office, said that, if they are applied to already-open cases, the amendments may also lead to the closure of ongoing major corruption and murder investigations.
According to the amendments, which have yet to be signed by Poroshenko, corruption cases can also be blocked through appeals against notices of suspicion. The amendments also put an end to the judiciary’s transparency by allowing judges to ban even open trials from being filmed.
Moreover, the amendments were adopted amid numerous procedural and legal violations, since the lawmakers were not given the final text to read and thus did not know what they were voting for, while some lawmakers were filmed voting for others, which is illegal.
“These amendments were falsified,” Gorbatuk said. “The Verkhovna Rada didn’t vote for them. To assume that they will become law in this manner would mean a collapse of the law in the state, and of the state itself.”
