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The International Monetary Fund said on July 25 that Ukraine’s law on the anti-corruption court would comply with its requirements once the amendments that the fund required are signed into law.
“The legislative framework for the High Anti-Corruption Court, once the recently adopted amendments are signed into law, will be consistent with the authorities’ commitments under Ukraine’s IMF-supported program,” an IMF spokesperson told Reuters.
However, to receive the next tranche of the IMF’s $17.5 billion package, Ukraine also needs to raise gas prices and plug some shortfalls in budget revenues.
The High Qualification Commission on July 24 launched the registration of candidates’ intentions for the High Anti-Corruption Court and up to 80 more Supreme Court job openings, calling on candidates to apply by Aug. 1.
The commission later said, however, that candidates would be able to register after Aug. 1 even if they don’t announce their intentions by that date.
Appeals controversy
The amendments that the IMF required were apparently passed by the Verkhovna Rada on July 12.
The amendments 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 NABU cases to the anti-corruption court.
However, the amendments have not been signed by President Petro Poroshenko yet, and the final text has not been published — so it’s not clear what the final wording is. According to Vitaly Shabunin, head of the Anti-Corruption Center’s executive board, the Poroshenko Bloc had tried to insert an amendment that allows the transfer of all NABU cases to the anti-corruption court before its creation but bans the transfer after that, effectively deceiving Ukraine’s Western partners.
Serhiy Alekseyev from President Petro Poroshenko’s Bloc, 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, said Vitaly Tytych, a member of the Public Integrity Council, the judiciary’s civil society watchdog. In that case, the deadline for appeals will expire, and it will be impossible to convict such suspects.
Moreover, prosecutors may just 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.
Barred from competition
The government ministers and lawmakers applaud the passage of the bill on the anti-corruption court law by the Verkhovna Rada on June 7. (Wladyslaw Musiienko)
A major controversy surrounding the law is that the IMF, Ukraine’s biggest lender who advocated vigorously the creation of the anti-corruption court, was prevented by the law from delegating representatives to the Council of International Experts, a six-member foreign advisory body of the anti-corruption court.
The advisory council can influence the selection: In a situation when 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.
The law on the anti-corruption court, passed on June 7, states that only the organizations that have agreements on anti-corruption programs with Ukraine can nominate members of the foreign council. The IMF doesn’t fit this requirement.
Leonid Yemets, a lawmaker from the People’s Front party and deputy head of the Legal Policy and Justice Committee in parliament, said on July 25 that the IMF had expected to participate in the competition, based on his negotiations with IMF representatives.
“They were sure they would be on the list,” Yemets said.
The IMF declined to comment on the issue.
The decision to prevent the IMF from participating in the selection of anti-corruption judges through the wording of the law contradicts a claim by Giorgi Vashadze, a co-author of the presidential bill on the anti-corruption court, who told Kyiv Post in June that the IMF would be eligible but decided not to participate.
Vashadze claimed later that the IMF did not want to be eligible itself, while Alekseyev said he could not comment on the issue.
Foreign experts
According to a letter sent by the Foreign Ministry to the High Qualification Commission, the following organizations can delegate representatives to the Council of International Experts: the United Nations Office on Drugs and Crime, the United Nations Human Rights Council, the Group of States Against Corruption, Moneyval (a Council of Europe body), the Organization for Economic Cooperation and Development, Europol, Eurojust, European Partners against Corruption, the European Anti-Fraud Office, the Financial Action Task Force, the Organization for Security and Cooperation in Europe, Interpol, the World Bank, and the European Bank for Reconstruction and Development.
These organizations can nominate at least two candidates each, and the High Qualification Commission will choose six out of the total number.
Experts who spoke at a Reanimation Package of Reforms breakfast on July 25 said that the commission could choose experts biased in favor of Ukrainian authorities and ill-informed ones.
“It’s important to ensure that only well-informed and independent candidates get selected,” said Halya Chyzhyk, a member of the Public Integrity Council.
Representatives of the Council of Europe and the OSCE have already sided with Ukrainian authorities during last year’s Supreme Court competition.
Tytych argued that the High Qualification Commission was likely to choose foreigners with little knowledge of Ukraine who would not be able to properly assess candidates’ background and Ukraine’s political and legal context, helping the authorities to create a puppet court.
The law limits the nominees mostly to foreigners because only those who have been judges or prosecutors abroad in corruption cases for at least five years can be nominated to the Council of International Experts.
Moreover, six foreign representatives will not have enough time and resources to assess candidates’ background within the 30-day deadline after scores are assigned, Tytych argued. By comparison, the Public Integrity Council has 17 members and had more time to evaluate candidates during last year’s Supreme Court competition.
The authorities have also been criticized for preventing the Public Integrity Council, which has been highly critical of the government, from participating in the competition for the anti-corruption court. Tytych attributed it to the authorities’ fear that the council would prevent the rigging of the competition.
Veto powers
A major problem is that international experts will have no access to candidates’ profiles, said Iryna Shyba of the DEJURE Foundation.
Members of Public Integrity Council Tytych and Roman Kuybida told the Kyiv Post that the High Qualification Commission will be able to handpick only “bad” and government-controlled candidates in an arbitrary way when it assigns scores. As a result, there will be no good and independent candidates to choose from, and foreigners’ veto powers will not matter, Tytych said.
The solution to this would be to let foreign representatives to take part in the assessment itself, not just vetoing judges, Tytych and Kuybida said.
The High Qualification Commission and Vashadze have denied the allegations, saying that the procedure would ensure that the best candidates would be chosen.
Assessment procedure
Reanimation Package of Reforms experts agreed that the assessment methodology for assigning scores should be made objective to ensure a fair competition for the anti-corruption court.
However, Yemets and Maksym Kostetskyy, an expert at Transparency International Ukraine, said that the authorities were reluctant to amend the assessment methodology. But Chyzhyk said the High Qualification Commission should still be pushed to change the methodology.
During the 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.
One of the ways to prevent the rigging of the competition is to guarantee maximum transparency and publish the results of candidates’ tests and results of voting by each member of the High Qualification Commission, Chyzhyk said.
Cassation problem
Another critique of the law is that all second appeals against old and new NABU cases — called cassation in Ukraine — will be considered by the discredited Supreme Court.
“Everything we are talking about is not important at all if (the anti-corruption court’s rulings) are canceled by the Supreme Court,” Chyzhyk said.
The High Qualification Commission is planning to recruit up to 80 more judges of the Supreme Court under the old assessment rules without the participation of foreigners simultaneously with the anti-corruption court competition.
The authorities have rejected a proposal by civil society groups to set up an anti-corruption chamber of the Supreme Court recruited under new transparent rules with foreigners’ participation.
