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Ukrainian authorities and the nation’s foreign donors have entered the final stage of talks on creating an anti-corruption court.
The Verkhovna Rada on May 23 and May 24 considered hundreds of amendments to a bill to create an anti-corruption court but did not have enough time to pass the bill itself in the second reading as of 4 p.m. on May 24. It was adopted in the first reading on March 1.
However, the negotiations between Ukraine and its foreign partners on the anti-corruption court have been heavily lambasted by members of the Public Integrity Council, the judiciary’s civil society watchdog. They believe foreign donors have been deceived by Ukrainian authorities, which will now get Western money but will still be able to rig the competition for anti-corruption judges.
Ukrainian authorities deny the accusations.
The creation of the anti-corruption court is a necessary precondition for another $2 billion tranche of the International Monetary Fund.
The conditions pushed for by Western partners will still enable President Petro Poroshenko to create a puppet court without a proper transparent competition and stack it with his cronies, Public Integrity Council members say.
“Effectively, international donors will be completely isolated from the selection of the best candidates for the anti-corruption cour, ” Roman Kuybida, a member of the council, said in an op-ed for the Kyiv Post. “The Public Council of International Experts can be used as a façade to cover up for the results of a competition influenced by political and oligarchic elites through members of the High Qualification Commission.”
“It is crucial that the Expert Panel—consisting of independent people with extensive and recognized expertise in the area of fighting corruption—is given a crucial role in verifying that applicants to the position of a judge on the High Anti-Corruption Court have the necessary qualifications related to corruption adjudication,” Mr. Goesta Ljungman, the International Monetary Fund’s resident representative in Ukraine, told the Kyiv Post. “The recommendation issued by the Expert Panel should be respected, and candidates who do not meet the criteria for anti-corruption judges should be disqualified from further consideration in the selection process.”
Ljungman said that the discussions on the bill were “ongoing.”
Satu Kahkonen, World Bank Country Director for Belarus, Moldova and Ukraine, told the Kyiv Post that “for the court to be effective, its independence needs to be ensured.”
Flawed compromise
According to the ongoing negotiations, the seven-member Council of International Experts, which will be delegated by Ukraine’s foreign partners and donors, will be able to veto candidates for the anti-corruption court nominated by the 16-member High Qualification Commission.
A joint session of the Council of International Experts and the High Qualification Commission will be able to override such vetoes.
Allies of Poroshenko insist that at least 16 votes should be enough to override vetoes by the Council of International Experts on candidates. This means that the High Qualification Commission’s 16 votes will be enough, and foreign donors’ opinion can be ignored.
Ukraine’s foreign partners say that at least 20 votes should be necessary to override a veto by foreign partners.
But Public Integrity Council members Kuybida and Vitaly Tytych believe that foreign powers’ veto powers will be useless because they will not have any oversight over the actual selection of judges. As a result, the commission will choose the worst and most politically loyal candidates, and it will not matter whether any of them will be vetoed, Tytych and Kuybida argue.
Moreover, good and independent candidates will not even run in the competition because they know they will be blocked by the commission, Tytych said.
Powerless foreigners
The Public Integrity Council believes that foreign partners must be allowed not only to veto the worst candidates but also choose the best candidates.
To make the competition fair and objective, the competition for the anti-corruption court must be held by a special chamber of the High Qualification Commission comprising a majority of foreign representatives, Tytych and Kuybida argued.
The Venice Commission’s recommendations (clause 73 of Conclusion No. 896/2017) stipulate that foreign partners must be included in the competition commission or even the High Qualification Commission’s composition.
The Public Integrity Council’s role, which should be able to veto candidates based on integrity criteria, must also be preserved during the competition for anti-corruption judges, Kuybida said.
Flawed methodology
Another way to hold a fair competition is to make the assessment methodology objective and deprive the High Qualification of its arbitrary powers to assess candidates, Tytych argued.
During the Supreme Court competition, 90 points were assigned for anonymous legal knowledge tests, 120 points for anonymous practical tests, and the High Qualification Commission could arbitrarily assign 790 points out of 1,000 points without giving any explicit reasons.
To make the competition’s criteria objective, the law on the judiciary must be amended to clearly assign 750 points for anonymous legal knowledge tests and practical tests (for competitions for both the anti-corruption court and all other courts), Tytych argued.
Moreover, the authorities may sabotage corruption cases through the discredited Supreme Court, which will be the cassation court for graft trials.
A special autonomous anti-corruption chamber of the Supreme Court should be selected under the same procedure as the High Anti-Corruption Court, Kuybida said.
Other aspects
One of the only concessions that Ukrainian authorities made to Western partners is that they agreed to make the conditions for becoming an anti-corruption judge less strict. In Poroshenko’s original bill, they were so strict that it would be almost impossible to find candidates meeting the demands, and the selection could drag on for years.
Ukrainian authorities also agreed to amend the bill to make sure that the court considers all cases of the National Anti-Corruption Bureau of Ukraine and does not consider non-NABU cases.
Discredited commission
Public Integrity Council members argued that the competition for the anti-corruption court should not be entrusted to the discredited High Qualification Commission because they believe it rigged the Supreme Court competition and brought it under Poroshenko’s control. The commission denies the accusations.
First, during the practical test stage, some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool of promoting political loyalists.
Second, in the High Qualification Commission illegally allowed 43 candidates who had not gotten sufficient scores during practical tests to take part in the next stage, changing its rules amid the competition. Members of the Public Integrity Council believe that the rules were unlawfully changed to prevent political loyalists from dropping out of the competition.
Third, the High Qualification Commission and the High Council of Justice illegally refused to give specific reasons for assigning specific total scores to candidates and refused to explain why the High Qualification Commission has overridden vetoes by the Public Integrity Council on candidates who do not meet ethical integrity standards.
Moreover, the commission nominated thirty discredited judges who do not meet integrity standards (according to the Public Integrity Council) for the Supreme Court, and Poroshenko has already appointed 27 of them (out of 115 appointees). These judges have undeclared wealth, participated in political cases, made unlawful rulings (including those recognized as unlawful by the European Court of Human Rights) or are investigated in corruption cases.
