Civil-society groups and opposition lawmakers on Dec. 26 and Dec. 27 lambasted a bill on an anti-corruption court submitted by President Petro Poroshenko because they believe it does not guarantee the selection of independent and honest judges.
They argued that the bill does not comply with recommendations on the anti-corruption court given by the European Commission for Democracy through Law, better known as the Venice Commission, on Oct. 9.
The bill was submitted to the Verkhovna Rada on Dec. 22 but its text appeared on its site only on Dec. 26.
The legislation was criticized by the Reanimation Package of Reforms, the Anti-Corruption Action Center, Transparency International Ukraine, and other groups.
Transparency International Ukraine on Dec. 27 urged Poroshenko to withdraw his bill and submit a new bill on an anti-corruption court that would comply with the Venice Commission’s recommendations.
Rouslan Riaboshapka, a former reformist official at the National Agency for Preventing Corruption, also said on Dec. 26 that Poroshenko should withdraw the bill and submit a new one, and that the legislation was so bad it was impossible to improve it.
“Instead of a genuine independent anti-corruption court, a fake body subject to external (political) pressure will be set up,” the Anti-Corruption Action Center said on Dec. 26.
Yegor Soboliev, ex-chairman of parliament’s anti-corruption committee, said on Facebook on Dec. 26 that “Poroshenko formulated the bill on an anti-corruption court hoping to fool both society and (Ukraine’s) Western partners.”
The Presidential Administration could not immediately comment on the accusations.
Foreign experts
The bill has been criticized because it gives foreign experts only an advisory role in the selection of anti-corruption court judges, not a crucial one. The Venice Commission insisted on a crucial role for foreign experts to make sure that independent and honest judges are selected.
Under the legislation, judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice, which have been discredited and accused of appointing corrupt judges and political loyalists to the Supreme Court and other courts.
The High Qualification Commission will appoint an advisory body called the Council of International Experts.
Moreover, 11 out of the High Qualification Commission’s 16 members can override a veto by the Council of International Experts on candidates for the anti-corruption court.
According to an opposition bill on an anti-corruption court submitted to parliament in February, foreign donors would nominate three of the Competition Commission’s nine members, and they would be automatically appointed by the justice minister. The Competition Commission would then choose judges of the anti-corruption court.
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.
Discredited bodies
Public trust in the High Qualification Commission and the High Council of Justice, which will play the dominant role in the selection of anti-corruption court judges, is low. As many as 30 discredited judges deemed corrupt or dishonest by the Public Integrity Council, a civil society watchdog, were nominated for the Supreme Court by the High Qualification Commission in July, and 28 of them were approved by the High Council of Justice in September to November.
The High Qualification Commission and the High Council of Justice have also been criticized for being controlled by Poroshenko and the People’s Front party — an accusation that the bodies deny.
Several of the High Council of Justice’s members were appointed by Poroshenko and his loyalists or used to work with Poroshenko and his allies.
The Public Integrity Council 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.
High Council of Justice member Pavlo Grechkivsky has been charged with fraud in a corruption case and has promised to help in a legal dispute with newly-appointed Supreme Court Deputy Chairman Bohdan Lvov’s assistance for $500,000, according to the investigators. Grechkivsky and Lvov deny the accusations.
Meanwhile, the discredited State Judicial Administration will be able to set the number of judges of the anti-corruption court, according to the bill.
Zenovy Kholodnyuk, current head of the State Judicial Administration, was a deputy head of the State Judicial Administration during the 2013-2014 EuroMaidan Revolution under ex-President Viktor Yanukovych. According to the Justice Ministry, he must have been fired under the lustration law on the dismissal of Yanukovych-era officials but unlawfully escaped dismissal – an accusation that he denies.
The Public Integrity Council, which has shown its independence from the authorities, will be completely excluded from the competition for the anti-corruption court, according to Poroshenko’s bill.
Strict conditions
Anti-corruption groups also argued that the conditions for becoming a judge of the anti-corruption court are so strict that it will be almost impossible to find candidates meeting the demands, and the selection may drag on for years.
Under the bill, only a person who is no younger than 35 years old and has considerable anti-corruption or legal experience at international organizations can become a judge of the anti-corruption court.
Only a candidate who has worked as a judge for no less than five years, a legal scholar for at least seven years or a lawyer for no less than seven years can apply.
The legislation also bans candidates who have worked over the last 10 years at the prosecution service, the police, the State Security Service, the customs service, the National Anti-Corruption Bureau of Ukraine, the National Agency for Preventing Corruption and many other law enforcement agencies.
Moreover, the bill bans candidates who have held political offices or have been lawmakers over the last 10 years, were party officials or had contracts with parties over the last five years and were members of the state procurement commission before the ProZorro electronic procurement system was introduced in 2015.
Other problems
Another complaint against the bill is that the court’s creation may take a very long time. The court should be created within a year after the law is signed, according to the legislation.
Lawmaker Mustafa Nayyem said on Facebook that the bill is likely to be signed into law only in March 2018, and the court is likely to be created only after the 2019 presidential election.
Moreover, the court will not be able to consider some of the NABU’s cases, including money laundering ones. At the same time, the legislation would allow the National Police, the Security Service of Ukraine and the State Fiscal Service to bury the court with minor corruption and drug and arms trafficking cases, which will make it difficult for the court to handle top-level corruption.
The bill also fails to solve the problem of protecting anti-corruption judges and their families, former NAPC official Riaboshapka said.
Poroshenko and his loyalist and Prosecutor General Yuriy Lutsenko had opposed the anti-corruption court’s creation since judicial reform legislation was passed in mid‑2016 but promised to create an anti-corruption court under Western pressure in October. Poroshenko pledged to submit a bill on such a court several times but missed his previous deadlines.
Thousands of protesters led by ex-Georgian President Mikheil Saakashvili and other politicians have demanded the creation of an anti-corruption court since October.
