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22 may 2018

Roman Kuybida: Poroshenko to create puppet anti-graft court

The bill on the anti-corruption court initiated by the president at the request of Ukraine’s foreign partners and a number of Ukrainian non-governmental organizations stipulates the participation of international organizations in the selection of anti-corruption judges.

At first sight, this was supposed to guarantee the fairness of the competition for the anti-corruption court, and the international community and Ukrainian society’s trust in its results.

However, it still looks like the political elites will be able to create their own puppet anti-corruption court.

Effectively, international donors will be completely isolated from the selection of the best candidates for the anti-corruption court. Foreign partners are relegated to a role in the so-called Civic Council of International Experts, which will only be able to issue negative conclusions on specific candidates based on their integrity.

A similar role was played by the Public Integrity Council, which comprises representatives of civil society groups, in the Supreme Court competition last year. This role turned out to be nominal.

The High Qualification Commission’s ability to ignore the Public Integrity Council’s conclusions led to a fourth of the Supreme Court appointees having negative conclusions from the Public Integrity Council. Interestingly, most of the top jobs at this court were taken by such judges with negative conclusions.

Candidates for the anti-corruption court will be chosen by the High Qualification Commission members who have done their best to manipulate the competition in order to appoint political loyalists as Supreme Court judges.

If the competition for the Supreme Court had been held in an honest way, there would be no need to resort to international organizations’ help.

When isolated from the selection of the anti-corruption court, 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.

Even endowing foreign partners with veto powers that will be hard to override (it looks like this is the only acceptable compromise for the Ukrainian authorities) will not influence the results substantially.

Wanting to get another tranche from the International Monetary Fund, Ukrainian authorities have shrewdly tricked foreign partners into a secondary discussion about the way in which the Public Council of International Experts’ vetoes will be overridden.

The problem of vetoing obviously dishonest candidates is important, but secondary.

The decisive factor is making sure that the competition is won by the best candidates and especially that it’s not won by protégés of political and oligarchic elites.

The High Qualification Commission has every opportunity to appoint such loyalists, regardless of their abilities, to the anti-corruption court, because the commission appoints judges based on scores assigned behind closed doors and without any explicit reasons given.

Since foreign partners will be isolated from the competition of the best candidates, it will be impossible to assess the fairness of the appointment of the competition’s winners. The High Qualification Commission’s rating of candidates can be influenced by political and oligarchic elites.

Based on these conditions, it will not be surprising if most of the jobs at this court will be filled by judges who have demonstrated loyalty to the authorities, political parties’ lawyers and lawyers who serve oligarchic businesses.

If foreign partners were directly involved in the assessment of candidates, it would be much more difficult or even impossible to manipulate the results. And in that case the competition would be won by the best in terms of knowledge, experience, abilities and reputation.

It is easier for foreign partners to assess the best candidates’ abilities than collect and analyze information and assess candidates’ past.

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.

There are no threats to state sovereignty, because foreign partners have already been used for the selection of Constitutional Court judges and the chief of the National Anti-Corruption Bureau of Ukraine.

Moreover, the clauses of the Constitution of Ukraine eliminate any doubts regarding threats to state sovereignty – no one can be appointed as a judge without a decision by the High Council of Justice and a presidential decree.

Another serious threat for the anti-corruption court is that the current Supreme Court will be the cassation court for top-level corruption cases.

This may lead to even an honestly selected High Anti-Corruption Court becoming ineffective because Supreme Court judges appointed due to manipulation may cancel rulings issued by the High Anti-Corruption Court on the orders of the authorities.

Another technical detail may become a time bomb for the High Anti-Corruption Court.

According to the Constitution, courts are created under a law submitted by the president after consulting with the High Council of Justice. The bill on the High Anti-Corruption Court has been submitted by the president but the High Council of Justice has not analyzed the bill.

Consequently, for the creation of the High Anti-Corruption Court there must be another law.

Therefore if the authorities do not want to create this court (and the president obviously doesn’t have a serious intention to do so) this second law may not be submitted and approved after Ukraine gets a tranche from the International Monetary Fund.

Another scenario is to set up this court without such a law and make its further existence dependable on the Supreme or Constitutional Court or even the European Court of Human Rights.

What can prevent these negative scenarios? Three things:

First, foreign partners must participate not only in vetoing the worst but also in choosing the best candidates.

Therefore, there must be a special competition commission or chamber inside the High Qualification Commission. For example, it can comprise four representatives of foreign partners and three High Qualification Commission members. The Public Integrity Council’s role, which will be able to veto candidates based on integrity criteria, must also be preserved.

Second, a special autonomous anti-corruption chamber of the Supreme Court must be created. It should be selected under the same procedure as the High Anti-Corruption Court.

Third, the approval of the law on the anti-corruption court per se cannot be considered a victory on the anti-corruption front, because it must be properly implemented. For instance, immediately after it another law should be passed to create such a court in line with the Constitution.

Roman Kuybida, a member of the Public Integrity Council, the judiciary’s civil society watchdog, special for Kyiv Post