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The passage of the law on the creation of an anti-corruption court by the Verkhovna Rada on June 7 may not be the victory it appeared to be at first glance.
When the text of the law was published on June 13, doubts emerged as Ukrainian authorities had inserted an amendment that critics say would effectively give amnesty to suspects in top-level graft cases. The amendment, which many lawmakers said they knew nothing about, keeps the discredited current court system in charge of hearing appeals in ongoing corruption trials.
The amendment threatens further International Monetary Fund loans — money that Kyiv desperately needs to meet upcoming debt repayments.
The European Commission for Democracy through Law, also known as the Venice Commission, said it had not approved of the amendment in question.
President Petro Poroshenko and company “falsified one article of the law on the anti-corruption court that we adopted,” Samopomich party lawmaker Iegor Soboliev said on Facebook on June 13. … “This falsification shows how much top corrupt officials are afraid of the anti-corruption court.”
The Verkhovna Rada’s legal policy and justice committee denied the accusations of wrongdoing, while the Presidential Administration did not respond to requests for comment.
The law was signed by Poroshenko on June 11.
Moreover, concerns remain that the law does not provide sufficient safeguards to ensure that the anti-corruption court will be independent. Critics say Poroshenko will be able to stack it with loyalists and create a puppet court, although he denies any intention to do so.
The IMF still has not said whether the law complies with its conditions.
Poroshenko and his allies claimed that Ukrainian authorities had reached an agreement on the bill with the IMF. But numerous sources, including ex-Finance Minister Oleksandr Danylyuk, lawmaker Sergii Leshchenko and Daria Kaleniuk from the Anti-Corruption Action Center, told the Kyiv Post no final deal was reached with the IMF.
The court’s creation is just one of three requirements that Ukraine has to meet for the IMF to agree to disburse another $2 billion in loans, out of a $17.5 billion package that expires in March. The other two conditions are raising household gas prices to market levels, and reducing the budget deficit to 2.5 percent of gross domestic product, down from the current 4 percent.
Appeal courts
One of the bill’s clauses is that all corruption cases currently being considered by ordinary courts will not be transferred to the anti-corruption court and will remain in the old judiciary. Additionally, even appeals against verdicts in graft cases sent to trial before the anti-corruption court’s creation will be considered by ordinary courts, not the High Anti-Corruption Court’s appeal chamber.
The High Anti-Corruption Court and its appeal chamber will only be able to consider new corruption cases sent to trial by the National Anti-Corruption Bureau of Ukraine after the court’s creation.
“The scandalous amendment, which will allow suspects in dozens of NABU cases to resort to the services of their friendly corrupt appellate judges, is outright fraud,” lawmaker Mustafa Nayyem wrote on Facebook on June 13.
The clause was inserted into the law secretly, according to the Anti-Corruption Action Center, Nayyem, Leshchenko and Soboliev.
It was not discussed at a meeting of parliament’s legal policy and justice committee, and it was not read by Ruslan Knyazevych, the head of the committee, in the Verkhovna Rada before the vote, the Anti-Corruption Action Center said. Moreover, the amendment was not published on the Verkhovna Rada’s site ahead of the publication of the law.
The graft cases against ex-People’s Front lawmaker Mykola Martynenko, ex-State Fiscal Service Chief Roman Nasirov, top prosecutor Kostyantyn Kulik and State Audit Service Chief Lidiya Havrilova have already been sent to trial. Meanwhile, the graft cases against Odesa Mayor Hennady Trukhanov, Interior Minister Arsen Avakov’s son Oleksandr, Central Election Commission chairman Mykhailo Okhendovsky and Deputy Defense Minister Ihor Pavlovsky are likely to be sent to trial before the anti-corruption court’s creation.
Kyiv’s Solomyansky Court on June 12 returned a passport to Trukhanov and permitted him to travel abroad, further undermining trust in old discredited courts. On June 14, the Solomyansky Court also returned a passport to Pavlosvky.
The Rada’s legal policy and justice committee claimed that the clause complied with recommendations by the Venice Commission and denied having falsified the text of the bill. Thomas Markert, a spokesman for the Venice Commission, rejected the claim, saying that the commission had not demanded such a clause.
The committee also claimed that transferring ongoing NABU trials to the High Anti-Corruption Court’s appeal chamber would block its work due because of the large volume of cases.
Cassation
Meanwhile, all second appeals against old and new NABU cases — called cassation in Ukraine — will be considered by the discredited Supreme Court. Roman Kuybida and Vitaly Tytych, members of the Public Integrity Council, told the Kyiv Post this would allow the authorities to block corruption cases.
Members of the Public Integrity Council, the judiciary’s civil-society watchdog, believe the competition for Supreme Court judges was rigged in favor of government loyalists last year by the High Qualification Commission. The commission denies the accusations.
The way to solve this problem would be to create a special anti-corruption chamber recruited under transparent rules at the Supreme Court, Kuybida said.
However, the High Qualification Commission plans to start recruiting about 80 more Supreme Court judges this fall under the old non-transparent assessment rules, in addition to the 115 incumbent judges.
Foreigners
According to the final version of the bill, at least three members of the six-member Council of International Experts, a foreign advisory body, can initiate a joint meeting of the High Qualification Commission and the Council of International Experts on a candidate for the anti-graft court if there are doubts about his or her professional integrity, source of wealth, or skills.
Then the candidate must be approved by a majority of the joint meeting, given at least three international experts vote for him or her.
It is still not clear from the final text of the bill which foreign organizations will select representatives for the Council of International Experts, and in what manner, Kaleniuk and Kuybida said.
There is a risk that some of the international experts will be biased in favor of the Ukrainian authorities, which may allow top officials to create a puppet court, they argued.
Other problems
Kuybida and Tytych argued that the law would not prevent the rigging of the competition for anti-corruption judges in favor of government loyalists by the High Qualification Commission. They say that foreign representatives should take part not just in vetoing the worst candidates, but in the selection of the best ones and the assigning of scores.
Moreover, the legislation does not solve the problem of the High Qualification Commission’s arbitrary and subjective assessment methodology, Tytych said.
During the Supreme Court competition, 90 points were assigned for anonymous legal knowledge tests, 120 points for anonymous practical tests, and the High Qualification Commission could arbitrarily assign 790 points out of 1,000 points without giving any explicit reasons. To make the competition’s criteria objective, 750 points should be assigned for anonymous legal knowledge tests and practical tests, Tytych said.
Another obstacle is that, to launch the anti-corruption court, Poroshenko needs to submit an additional bill on its creation to the Rada, and this may delay and subvert the process even further.
The legislation has also been criticized because it doesn’t allow the Public Integrity Council, which has shown its independence from the authorities, to take part in the creation of the anti-corruption court.
Conditions
According to the bill’s initial version, the anti-corruption court would consider some non-corruption cases and would not hear some graft cases. The final version stipulates that the court will consider most major corruption cases and will not handle non-corruption ones. The bill’s final text also eliminated excessive requirements for judges: the initial version made it almost impossible to find candidates.
However, the clause of the law that bans most candidates who have worked at law enforcement agencies over the past 10 years has a negative aspect, Kaleniuk said. She believes it is aimed not at banning corrupt prosecutors and detectives from the competition, but at preventing effective and honest NABU detectives and anti-corruption prosecutors from running.
Kholodnytsky problem
Moreover, the authorities will be able to decide which cases will be sent to old courts or the anti-corruption court’s appeal chamber through Chief Anti Corruption Prosecutor Nazar Kholodnytsky, who has become their pawn, Kaleniuk said. Kholodnytsky denies accusations of being a Poroshenko puppet.
Nevertheless, the work of the NABU and the anti-corruption court could potentially be blocked through Kholodnytsky, because his office must authorize all NABU notices of suspicion and other investigative actions.
In April the NABU released audio recordings that implicate Kholodnytsky in alleged corruption — talking with judges, tampering with witnesses, interfering with prosecutors and negotiating with suspects. But he has not been fired or prosecuted. Kholodnytsky confirmed that the tapes were authentic, but denied any wrongdoing.
Destroying NABU
Another worry is the independence of NABU, the most effective corruption-fighting agency in Ukraine. NABU Chief Artem Sytnyk, who is seen as independent from Poroshenko, could be fired as a result of a negative conclusion by NABU auditors.
Two NABU auditors linked to the authorities have been appointed already, and a third one is to be selected by Poroshenko.
