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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.
Iryna Shyba, head of projects at the DEJURE Foundation think-tank, said the announcement was a signal that the commission wanted to hold the competition as fast as possible, which would damage it.
“We need quality, not speed,” she said at a Reanimation Package of Reforms diplomatic breakfast on July 25.
Controversies and IMF
The selection process of the judges of the High Anti-Corruption Court is already marred by controversies.
One of them is that the International Monetary Fund (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 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. 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 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 did not respond to a request for comment. It also has not said yet whether the law currently complies with its requirements.
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 did not respond to a request for comment, while Serhiy Alekseyev from President Petro Poroshenko’s Bloc, another deputy head of the Legal Policy and Justice committee, 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 UN 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 the 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, the judiciary’s civil society watchdog.
Representatives of the Council of Europe and the OSCE have already sided with Ukrainian authorities during last year’s Supreme Court competition.
Chyzhyk said that the Public Integrity Council and Ukrainian civil society groups would try to help international experts assess candidates.
Veto powers
A major problem is that international experts will have no access to candidates’ profiles, said Shyba of the DEJURE Foundation.
Members of the judiciary’s civil-society watchdog Public Integrity Council Vitaly 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 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.
Appeals controversy
The authorities have also inserted a clause that would allow old corrupt courts to consider appeals in ongoing corruption cases. On July 12, the Verkhovna Rada apparently changed this clause, passing amendments according to which all ongoing NABU cases will be transferred to the anti-corruption court.
However, the law has not been signed by Poroshenko yet, and the final text has not been published – so it’s not clear what the final wording is. According to Vitaly Shabunin, 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.
Alekseyev denied Shabunin’s accusations.
Yemets said on July 25 that, although the final text has not been published, it was unlikely that the authorities would deceive the IMF, which has called for changing the clause, by messing with the wording of the 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 spokeswoman told Reuters.
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 told the Kyiv Post. In that case, the deadline for appeals will expire, and it will be impossible to convict such suspects. So a solution must be found for such cases.
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.
Timeline
Under the law, the anti-corruption court should be created within a year after its passage in June.
Kostetskyy said that the anti-corruption court was unlikely to be launched before the presidential election next March.
“It would be good if we had it working before the parliamentary elections (scheduled for October),” he said.
