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The High Qualification Commission on Aug. 2 launched a competition to select anti-corruption court judges, while President Petro Poroshenko signed amendments to the anti-corruption court law required by the International Monetary Fund.
Applications for court jobs will be accepted from Aug. 8 until Sept. 14.
The competition is to fill 39 High Anti-Corruption Court jobs, including 12 jobs at the court’s appeals chamber, and 78 Supreme Court jobs, the commission said.
The commission said that 172 candidates had so far announced their intention to take part in the competition for the High Anti-Corruption Court’s appeals chamber, 610 candidates intended to apply for other jobs at the anti-corruption court, and 842 candidates were planning to compete for Supreme Court jobs.
The commission’s critics are concerned that such a rapid job selection process during the “dead” summer season may lead to very few good candidates being able to apply.
Another trick is that, during the Supreme Court competition, the High Qualification Commission banned many lawyers from the competition due to red tape because they allegedly did not provide all necessary documents, and the same trick may be repeated during the competition for the anti-corruption court, Vitaly Tytych from the Public Integrity Council and Anastasia Krasnosilska from the Anti-Corruption Action Center said.
Activists also fear that the competition may be rigged in favor of government-friendly candidates.
Under the law, the Council of International Experts, a six-member foreign advisory body, can have a say in the selection of anti-corruption judges: If there are doubts about a candidate’s professional integrity, source of wealth, or skills, the council can initiate a joint meeting with the High Qualification Commission and veto the candidate if at least four foreign experts out of six agree with the veto.
However, foreigners will not participate in the selection of new Supreme Court judges. The Supreme Court will be the cassation court for the anti-corruption court’s cases, which will allow it to block them, critics of the authorities say.
A well-informed source, who was not authorized to speak to the press, told the Kyiv Post that the High Qualification Commission was negotiating the possibility of the Council of Europe nominating 12 representatives soon, in which case the Council of International Experts could consist exclusively of Council of Europe nominees.
This move is intended to make sure that the Council of International Experts is biased in favor of the Ukrainian authorities, according to the source: Representatives of the Council of Europe sided with the Ukrainian authorities during the controversial Supreme Court judge selection process last year.
The High Qualification Commission and the Council of Europe did not respond to requests for comment.
Some representatives of the Organization for Security and Cooperation in Europe and the European Union, which can also send nominees, have also praised the controversial Supreme Court competition and sided with Ukrainian authorities.
Other organizations that can nominate candidates for the Council of International Experts include the United Nations Office on Drugs and Crime, the United Nations Human Rights Council, Europol, Eurojust and Interpol. They have not participated in anti-corruption programs in Ukraine, and their credibility has also been questioned.
At the same time, the commission has told its international partners that it expects them to send their nominees for the Council of International Experts by mid-September, the source said.
The source said, however, that eligible foreign organizations could together form a single list of 12 candidates for the Council of International Experts so as to make sure that only exemplary council members were appointed.
However, some of the organizations that have advocated for an independent anti-corruption court most strongly have been banned by the law from making nominations for the Council of International Experts. These include USAID, the International Monetary Fund, and Transparency International.
Tytych estimated the chances of creating a genuinely independent anti-corruption court as “zero,” given that what he views as the High Qualification Commission’s subjective and arbitrary assessment methodology for judges had not been changed. The commission has denied that its methodology is arbitrary.
During last year’s Supreme Court competition, 210 scores were assigned for anonymous tests, and the High Qualification Commission could 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.
Meanwhile, President Poroshenko said on Aug. 2 he had signed amendments that seek to change the controversial clause under which old corrupt courts will consider appeals in ongoing corruption cases after the anti-graft court is created. The amendments would transfer all ongoing cases of the National Anti-Corruption Bureau of Ukraine to the anti-corruption court.
However, the final text of the amendments has not been published yet — so it’s not clear what the final wording is. According to Vitaly Shabunin, head of the Anti-Corruption Center’s executive board, the Bloc of Petro Poroshenko faction in parliament tried to insert an amendment that allows the transfer of all NABU cases to the anti-corruption court before its creation, but bans their transfer after that, effectively deceiving Ukraine’s Western partners.
However, Serhiy Alekseyev from the Bloc of Petro Poroshenko and a deputy head of the Legal Policy and Justice committee denied Shabunin’s accusations.
The authorities may also use another trick: old corrupt courts may intentionally pass verdicts in top-level corruption cases before the anti-corruption court is created, Tytych said. In that case, the deadline for appeals will expire, and it will be impossible to convict such suspects.
Moreover, prosecutors may simply close major cases before the court is created – for example, the corruption case against Interior Minister Arsen Avakov’s son Oleksandr has already been closed.
