The Verkhovna Rada’s approval on March 1 of a bill on an anti-corruption court in the first reading was seen by many as a symbolic concession by President Petro Poroshenko to Ukraine’s Western partners and civil society.
However, unless the bill is amended significantly in the second reading, Ukraine will receive just another useless kangaroo court instead of a genuine independent institution capable of jailing top officials, anti-corruption activists and independent lawyers say.
Moreover, Poroshenko may opt for delaying the second reading of the bill and its signing and later its recruitment indefinitely. As a result, the court might only be created after the March 31, 2019, presidential election, when new ways of sabotaging it may arise.
“The president’s bill aims to create a puppet anti-corruption court by using two tools: appointing loyal judges through existing dependent institutions and burying it with a lot of petty cases,” Samopomich party lawmaker Lena Sotnyk said on March 1. “The adoption of this bill’s current version will not only preserve corruption schemes but also protect them in court… The bill must be amended before the second reading in full compliance with the Venice Commission’s recommendations.”
Delays
The Verkhovna Rada passed a law on judicial reform in June 2016, stipulating the creation of an anti-corruption court in the future.
Since October, thousands of protesters have regularly demanded the creation of an anti-corruption court, and Western partners have also called for it.
But Poroshenko and his allies had resisted the idea until late December, when he submitted the legislation to parliament. However, the Verkhovna Rada had failed to include it into its agenda for two months until March 1.
“If Poroshenko had had political will before, this anti-corruption court would already be working now and making its first rulings,” reformist lawmaker Sergii Leshchenko said on Facebook on March 1. “But now it will start functioning only after the presidential elections in the best-case scenario. With this corrupt ruling establishment, we’re losing two values — money and time.”
In December and January, Ukrainian anti-corruption groups, the International Monetary Fund, the World Bank, the European Union and the European Commission for Democracy through Law, better known as the Venice Commission, criticized Poroshenko’s bill and urged him to amend it.
They say that Poroshenko’s legislation does not guarantee the selection of independent anti-corruption judges. Poroshenko refused to amend the bill ahead of its first reading, and his critics argue that he is unlikely to do so during its second and final reading.
The president on March 1 denied having plans to sabotage the legislation, calling for it to be passed into law this spring.
Foreigners’ role
Anti-graft groups and Ukraine’s Western partners said that the Public Council of International Experts should have a central role in approving the appointment of anti-graft court judges, rather than just an advisory one. The Public Council of International Experts is expected to consist of independent experts nominated by Ukraine’s foreign partners and donors, and will play only an advisory role, according to Poroshenko’s bill.
According to Poroshenko’s bill, judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice. The High Qualification Commission can override a veto by the Council of International Experts on candidates for the anti-corruption court.
Anti-corruption groups and foreigners have proposed two ideas for increasing the role of Western partners.
One of them is to abolish the High Qualification Commission’s right to override foreigners’ vetoes on anti-corruption judges.
Odesa Mayor Hennady Trukhanov stands at a Feb. 15 hearing at Kyiv’s Solomyansky Court, which released him without bail in a graft case. Later the court also refused to suspend him as mayor of Odesa. (UNIAN)
The other idea is that people nominated by foreign partners and donors should form a majority in a special chamber created by the High Qualification Commission, and this chamber should be empowered to appoint the judges of the anti-corruption court, Roman Kuybida, a member of the Public Integrity Council, a civil-society watchdog, told the Kyiv Post.
Moreover, Ukraine’s civil society should also make sure that representatives delegated by foreign donors are independent from the government and knowledgeable about Ukraine, Vitaly Tytych, a member of the Public Integrity Council, told the Kyiv Post. Some foreign organizations working in Ukraine have been accused of having close ties with the authorities and advocating their agenda.
Tytych said that Ukraine’s foreign partners could delegate independent Ukrainians with impeccable reputation and integrity, such as some people from the December 1 Initiative Group civil-society organization, to vet anti-corruption judges.
Another idea voiced by independent lawyers is to change the composition of the discredited High Qualification Commission and the High Council of Justice.
Transparent competition
Tytych believes that an independent anti-corruption court can only be created if the methodology of the competition for judges is changed completely.
During the Supreme Court competition, 90 scores were assigned for anonymous legal knowledge tests, 120 scores for practical tests, and the High Qualification Commission could arbitrarily assign 790 scores without giving any explicit reasons, he argued. As a result, the competition failed, according to Tytych.
Candidates who were at the top of the list after the anonymous knowledge tests and practical tests, including Maksym Selivanov, somehow ended up at the bottom of the list after the High Qualification Commission arbitrarily awarded scores to them in the next stages, Tytych said.
In contrast with previous court competitions, the Supreme Court competition’s methodology was not even checked by testing experts for validity, Tytych said. The methodology was also lambasted by Ukrainian testing expert Serhiy Mudruk.
Tytych told the Kyiv Post that, in the competition for the anti-graft court, 330 scores should be given for anonymous legal knowledge tests, another 330 scores for practical tests, and 330 scores for professional ethics based on conclusions by the Public Integrity Council. That would leave no room for arbitrary decisions and political involvement, Tytych argued.
“To select (independent and professional judges), you have got to have candidates to choose from,” Tytych said. “Not a single decent candidate will take part in the competition if he knows that the High Qualification Commission has such arbitrary powers… The Supreme Court competition was killed as a result of (High Qualification Commission Chairman Serhiy) Kozyakov expelling a lot of people who were more intelligent and professional and don’t have a background in the corrupt judicial system.”
Kuybida said that no independent and principled judges had been appointed to the Supreme Court. As examples, he mentioned such independent judges as Mykhailo Slobodin, Roman Brehei and Serhiy Bondarenko, who dropped out of the competition.
Discredited bodies
Poroshenko’s critics argue that the current discredited High Qualification Commission and High Council of Justice cannot be entrusted with the anti-graft court competition because they failed in the recent competition for the Supreme Court.
The Public Integrity Council has also argued that the Supreme Court competition had been rigged by the High Qualification Commission and the High Council of Justice in favor of Poroshenko loyalists, which the bodies deny.
As many as 30 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 29 of them were approved by the High Council of Justice in September to December. Poroshenko has so far appointed 27 of the discredited judges to the Supreme Court.
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 also deny.
The Reanimation Package of Reforms, the Anti-Corruption Action Center and the AutoMaidan protest group have also accused the High Qualification Commission of “colluding” to manipulate the results of practical tests for the Supreme Court.
Mykhailo Zhernakov, a member of the Public Integrity Council, published a chart showing that the results of the tests do not meet normal (Gaussian) distribution — a mathematical notion that shows whether a certain distribution of numbers is random or manipulated.
Another controversial decision was that the High Qualification Commission allowed 43 candidates who had not gotten sufficient scores in practical tests to take part in the next stage. Critics saw this as an effort to promote politically loyal applicants.
Moreover, the High Qualification Commission has refused to explain why specific candidates were given specific scores and why the Public Integrity Council’s vetoes were overridden.
Other problems
The IMF also said that the participation of the Public Integrity Council in the selection of anti-graft court judges should be maintained, while under Poroshenko’s bill the Public Integrity Council, which has shown its independence from the authorities, will be completely excluded from the process of selecting judges for the anti-corruption court.
Anti-corruption groups also argued that the conditions for becoming a judge of the anti-corruption court are so strict in the bill that it will be almost impossible to find candidates that meet all of the demands, and the selection could drag on for years.
Another problem with Poroshenko’s bill is that it 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 adjudicate top-level corruption. Moreover, the anti-corruption court will not be able to consider some of the National Anti-Corruption Bureau of Ukraine’s cases, including money laundering ones and ones related to electronic asset declarations.
Another way in which the anti-corruption court will be sabotaged is through the discredited Supreme Court, which will be the appeals instance for the anti-corruption court, Kuybida said.
An opposition bill submitted last year envisaged recruiting independent anti-corruption judges for a special chamber at the Supreme Court. Under Poroshenko’s bill, incumbent discredited judges of the Supreme Court chosen through a dubious procedure would consider appeals against the anti-graft court.
This problem may be partially solved if another 84 independent and honest judges are appointed to the Supreme Court in a transparent non-arbitrary way, bringing the total number of judges to the maximum of 200, Tytych argued, referring to the competition methodology that he proposes.
