Ukrainian Think Tanks Liaison Office in Brussels

When assessing the attempts at conducting reforms, international organizations and states with a steady democracy treat Ukraine diplomatically, with understanding, as if it were a child that is just learning to stand on her own two feet. In other words, if you don’t praise her, you might destroy any desire for learning to walk from the outset.

However, the situation is currently such that a praise (for the creation of anticorruption bodies) has stopped being an incentive candy. It is becoming obvious to everyone in Ukraine and abroad that the newly established bodies are not showing any results simply because the existing political system is not allowing them to work. The National Anticorruption Bureau has already transferred many cases involving corrupt officials to courts during several years of its existence; yet, the latter are delaying their consideration under different influences.

That is why the establishment of an anticorruption court, which would hear cases involving grand corruption, is currently on Ukraine’s political agenda. The government corrupt officials’ main bet is on making this court fall under their control. Because if the judges are dependent, then their decisions will, predictably, be based on the principle of “jail to the enemies, freedom to the friends”.

That is why the first most important question that should arise during review and adoption of the law on anticorruption court is the selection of judges, which needs to be organized in a manner that only the experts who secured unanimous support from representatives of the public, the international partners, and lastly from the Ukrainian government bodies could become anticorruption judges.

The presidential draft law No. 7740 that was adopted in the first reading requires significant improvements in this particular aspect. It has envisioned that the selection of anticorruption judges is carried out by the High Qualification Commission of Judges (HQCJ) – a body that is largely made up of representatives of corruption-ridden judicial ranks. At the same time, the existing Civic Integrity Council (CIC – and advisory body made up of civil society organizations) is not involved in evaluating the candidates. Instead, a “Civic Council of International Experts” is being created, with the same nominal functions. Similarly to the CIC, the “Civic Council of International Experts” will collect information about the candidates and will be able to issue a negative opinion concerning their integrity. However, the HQCJ will be able to overcome such opinion.

Last year, the ability to ignore such opinions has resulted in a quarter of the new Supreme Court judges being appointed from among those candidates who received negative opinions from the CIC. The majority of leadership positions on the Court went to precisely these judges. It is this very HQCJ, which is being proposed as the body responsible for selecting judges to the Anticorruption Court, that has done all manipulations possible in order to pass the candidates loyal to the political authorities to positions of the Supreme Court judges.

That is why the recommendation included in the Venice Commission’s Opinion is conceptually correct: the body that will be charged with selecting anticorruption judges should provide for the decisive role of international organizations and donors that are providing support to Ukraine’s anticorruption programs. This conceptual approach is also supported by the EU position, the IMF letter, and the World Bank letter.

It is important to take into account that international experts could be more successful in positive selection (i.e., selection of the best). At the same time, the draft law by the President of Ukraine has, unfortunately, restricted them to weeding out candidates lacking integrity during the competition’s initial stages. Moreover, even this weeding out is a so-called one, as the HQCJ could pass any candidate.

The Venice Commission also noted that the participation of international experts in judicial selection is possible only “taking into consideration the principle of Ukraine’s sovereignty”. The President of Ukraine has decided to hold on to this statement as if it were the last straw, and spoke out against giving international experts the decisive role, as this would – ostensibly – contradict the state sovereignty.

In our opinion, the sovereignty statement means that the internationals’ participation is to be introduced by a Parliamentary act. Moreover, we propose that the internationals carry out their authority as part of a government body – namely, the HQCJ. After all, no judge could be appointed to the Anticorruption Court without a decision by the government bodies that, according to the Constitution of Ukraine, are charged with issuing the final appointment decision – i.e., the Superior Council of Justice and the President. Under such circumstances, the participation of international experts would not be in violation of state sovereignty.

It appears as though the President is presenting this argument in order to keep the selection procedure for the Anticorruption Court judges under his control, while at the same time isolating the internationals within a separate “council” (which for some reason is referred to as “civic”), without particular opportunities to influence the outcomes of the process. Even entitling the internationals to veto certain candidates at the start of the selection is suitable to the political authorities, as the HQCJ will retain the ability to name those who are “needed” rather than the best ones as winners of the competition.

What needs to be done in order for this not to happen?

First, it is necessary to not only preserve but also to strengthen the CIC’s participation in the selection of anticorruption judges. To ensure trust in the process of the society, such Council’s negative opinion should become an unconditional barrier to the appointment as anticorruption judges of candidates lacking integrity. In other words, the CIC should conduct the “negative” selection – i.e., weeding out candidates). Incidentally, the IMF insists on preserving the CIC’s participation. The Venice Commission had also recommended that the selection procedure for anticorruption judges be different from that used for the selection of other judges only to the extent necessary.

Second, the international experts should play the decisive role in the selection, operating as part of a special panel within the HQCJ. The special panel of 4 internationals and 3 HQCJ members approved by the CIC should conduct the positive selection – i.e., selecting the best out of those candidates whose integrity did not cause any doubts. In this case, the internationals will have an opportunity to interview candidates, to check their knowledge of international anticorruption standards, and to assess their skills and ability to be independent.

Moreover, the participation of international experts in formulating the rankings of candidates will reduce the risk of meddling by the existing HQCJ members, which was clearly seen during the selection of the new Supreme Court judges.

Another important point is the cassation instance, as it is the one that would determine whether the anticorruption court’s judgments will remain in force. Presently, the Presidential draft law provides that the cassation function will be exercised by the existing Supreme Court judges, who were selected in a manipulative manner. In light of this, it is of principal importance that the cassation instance function in cases involving grand corruption be carried out by the Anticorruption Chamber of the Supreme Court, which will have to be established following the rules for the selection of anticorruption judges.

All of these crucial aspects could still be taken into account during the revisions of the draft law on anticorruption court. However, we understand that the representatives of authorities, who see threats in an independent anticorruption court, will do everything possible to prevent this from happening. If this court is established but it not independent, this will become the greatest disappointment of the Ukrainians in recent years – and, frankly, of Ukraine’s partners worldwide.

Authors: Roman Kuybida, Mykola Khavroniuk, experts of the Centre of Policy and Legal Reform (Kyiv, Ukraine)

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