8 june 2018

Anti-corruption court wins; experts still assessing law

It’s taken two years, two competing drafts laws and two worried letters to the government from the International Monetary Fund and the World Bank, but on June 7 Ukraine’s parliament finally passed the second and final reading of a bill to create an anti-corruption court.

Even so, there are still doubts that the new legislation meets the requirements of the international lenders and the European Union, on whose financial support the fate of Ukraine still hangs.

For the approved bill to become law, it now needs to be signed by President Petro Poroshenko.

“Today we have completed the creation of anti-corruption infrastructure,” Poroshenko said at a parliament meeting, after first opposing and then delaying its creation since demands for the creation of the court started in 2016. “I want to emphasize Ukrainian authorities’ decisive anti-corruption efforts. Such decisive legislation doesn’t exist in a single country of the world.”

But while some lawmakers praised the bill as a major breakthrough, critics believe that it weakens the powers of an expert panel in selecting the judges and will allow Poroshenko to create a puppet anti-corruption court. The International Monetary Fund had insisted that at least half of the members of an expert panel open to Ukrainians and foreigners must approve a candidate before he or she could be considered for a judgeship.

The IMF said it is still analyzing the legislation, which passed on a vote of 315–25.

The court’s creation is one of three requirements that Ukraine has to meet for the IMF to agree to disburse a further $2 billion in loans. The other two conditions are raising household gas prices to market levels, and reducing the deficit of $40 billion national budget to 2.5 percent of the gross domestic product, down from the current 4 percent.

The Bloc of Petro Poroshenko, the pro-presidential faction in parliament, said the final version of the bill was the result of a compromise with the IMF and other foreign donors.
Gianni Buquicchio, the head of the European Commission for Democracy through Law, also known as the Venice Commission, said the commission was satisfied with the bill.

To set up the court, Poroshenko will have to submit an additional bill, according to the legislation. There are concerns that he is hoping to get an IMF tranche before submitting that second bill.

Daria Kaleniuk, executive director of the Anti-Corruption Action Center, said that the passage of the bill “is supposedly a victory, but it’s not clear what the final text looks like and whether it meets IMF conditions.”

“The anti-corruption court bill has been passed,” Yegor Sobolev, a lawmaker from the 25-member Samopomich faction, said on Facebook. “Now there will be a lot of manipulation and sabotage during its implementation, but we’ll be able to overcome this resistance.”

Sergii Leshchenko, a critical lawmaker from the 136-member Bloc of Petro Poroshenko, said on Facebook it would take about a year to create the anti-corruption court.
“The bill was passed thanks to our civil society, investigative journalists, a few reformers in the government and foreign partners’ pressure,” Leshchenko said. “If the country was run by a genuine reformer, we would already be discussing the anti-corruption court’s first sentences, not amendments. Time is the main resource that we’re losing. But I congratulate all those involved with victory.”

Foreign experts

According to the final version of the bill, at least three members of the six-member Council of International Experts, a foreign advisory body, can initiate a joint meeting of the High Qualification Commission and the Council of International Experts on a candidate for the court if there are doubts about his or her professional integrity.
Then the candidate must be approved by a majority of the joint meeting, given at least three international experts vote for him or her.

But it is not clear which foreign organizations will select representatives for the Council of International Experts, and in what manner. There is a high risk that some of the international experts will be biased in favor of the Ukrainian authorities, said Halya Chyzhyk, a member of the Public Integrity Council, the judiciary’s civil society watchdog.

Vitaly Shabunin, the head of the Anti-Corruption Action Center’s executive board, argued that the wording of the law does not allow the Organization for Economic Cooperation and Development, the World Bank and the European Union to nominate their representatives.

According to the legislation, foreign representatives will not be able to take part in the selection of candidates based on knowledge tests and interviews. Chyzhyk, Roman Kuybida and Vitaly Tytych — members of the Public Integrity Council — argued that, as a result, the bill would not prevent the rigging of the competition for anti-corruption judges in favor of government loyalists by the High Qualification Commission.

They say that foreign representatives should take part not just in vetoing the worst candidates on the basis of integrity, but in the selection process. A special chamber with a majority of foreign representatives should be created as part of the High Qualification Commission to select judges, according to Kuybida.

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, Kuybida said.

“(According to the bill passed by the Rada), the High Qualification Commission will select candidates without foreign organizations’ participation, and the story with manipulations during the Supreme Court competition may be repeated,” he said. “Foreign organizations were only given the opportunity to veto the worst candidates.”

Moreover, the legislation does not solve the problem of the High Qualification Commission’s arbitrary and subjective assessment methodology, Tytych said.

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, 750 points should be assigned for anonymous legal knowledge tests and practical tests, Tytych said.

Other aspects

Another way in which the anti-corruption court’s creation could be sabotaged is through the discredited Supreme Court, which will be the cassation instance for the anti-corruption court, Kuybida said. The way to solve this would be to create a special anti-corruption chamber recruited under transparent rules at the Supreme Court, he added.

However, the High Qualification Commission plans to start recruiting about 80 more Supreme Court judges this fall under the old non-transparent assessment rules in addition to the 115 incumbent judges. The legislation has also been criticized because it doesn’t allow the Public Integrity Council, which has shown its independence from the authorities, to take part in the creation of the anti-corruption court.

Rigging

Members of the Public Integrity Council believe the competition for anti-corrupt judges cannot be entrusted to the High Qualification Commission because they say it rigged last year’s competition for places on the Supreme Court. The High Qualification Commission denies the accusations.

First, during the practical test stage of the Supreme Court competition, some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool for promoting political loyalists.

Second, the High Qualification Commission allowed 43 candidates who had not earned sufficient scores during practical tests to take part in the next stage, changing its rules mid-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 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.

Loyal auditor

And even if the authorities fail to create a puppet anti-corruption court, they still have the opportunity to eliminate the National Anti-Corruption Bureau’s independence through an audit. In that case, the anti-corruption court will have no genuine corruption cases to consider.

NABU Chief Artem Sytnyk could be fired as a result of a negative conclusion by NABU auditors.

The Verkhovna Rada on June 7 appointed Volodymyr Vasylenko as an auditor of the NABU. According to the Apostrof news site’s sources, Vasylenko is the government’s preferred candidate for NABU auditor. Vasylenko’s son is Andriy Vasylenko, a member of the government-controlled High Qualification Commission.

In May 2017 Mykhailo Buromensky, an alleged loyalist of the authorities, was appointed as a NABU auditor by the Cabinet of Ministers. A third auditor has yet to be appointed by Poroshenko.

Danylyuk’s dismissal

Another troubling sign for anti-corruption efforts is the firing by the Rada of Finance Minister Oleksandr Danylyuk by the Rada after he lashed out at Poroshenko’s top ally and lawmaker Ihor Kononenko and at corruption at the State Fiscal Service.

Danylyuk said in a June 4 interview with the Yevropeiska Pravda online newspaper that lawmaker Kononenko had tried to install Ihor Umansky as a deputy finance minister to lobby for his interests. Kononenko denied the accusations.

Danylyuk’s deputy Oksana Markarova became the acting finance minister.

She has extensive business experience, including serving as CEO of ITT investment Group, a Ukrainian investment and asset management firm. Her supporters cite her successful business background and also her drive to make the Finance Ministry more transparent. She not only served under Danylyuk but also his predecessor, ex-Finance Minister Natalie Jaresko.

But she was also investigated in a graft case against ex-President Viktor Yanukovych’s former chief of staff Andriy Klyuyev, according to Volodymyr Petrakovsky, a former prosecutor and a Reanimation Package of Reforms expert, but never charged with any crime. She denies accusations of wrongdoing. She served as acting chairperson of Klyuyev’s bank from 2012-2013.

By material of KyivPost