Ukraine’s parliament, the Verkhovna Rada, on March 1 passed the first reading of President Petro Poroshenko’s bill to create an anti-corruption court in the country.
Protesters in a tent camp outside of the parliament have demanded the creation of such a court since October. It is also one of the demands of Ukraine’s Western partners.
In December, Poroshenko submitted legislation to set up the court after blocking the proposal for more than a year.
However, critics have argued that Poroshenko’s legislation is inadequate. In December and January Ukrainian anti-corruption groups, the IMF, 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.
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, the judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice. However, both bodies have been discredited and accused of appointing corrupt judges and political loyalists to the Supreme Court and other courts.
Poroshenko’s bill also stipulates that the 16-member High Qualification Commission can with a two-thirds majority (11 votes) override a veto by the Council of International Experts on candidates for the anti-corruption court.
Public trust in the High Qualification Commission and the High Council of Justice 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 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 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.
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.
Vitaly Tytych, a member of the Public Integrity Council, believes that an independent anti-corruption court can only be created if the methodology of the competition for judges is changed.
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 reasons, he argued. As a result, the competition failed, according to Tytych.
He told the Kyiv Post that 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.
Roman Kuybida, a member of the Public Integrity Council, told the Kyiv Post he believes 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.
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 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 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. 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.
