Political Points for 5 – 12 March 2018

The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases

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1. CPLR expert opinion

The Supreme Anticorruption Court must ensure an effective and fair hearing of high-level corruption cases. The judges of this court must go through an honest competition and receive unanimous support from representatives of the public, international partners and, finally, the Ukrainian government bodies.

The draft law No.7740, adopted in the first reading, needs to be substantially revised to achieve these goals.

2. Respective authorities counter-point/argument

The President expressed his opposition to the decisive participation of international experts, as it contradicts the state sovereignty of Ukraine.

3. CPLR assessment of the authorities counter-point

No judge, even the one selected with the participation of international experts, can be appointed without the decision of the Ukrainian government bodies which are adopting the final decision – the Supreme Council of Justice and the President. Consequently, the participation of international experts does not violate the state sovereignty.

4. Related legislation/instructions which require the authorities act in a certain manner

The Constitution of Ukraine, the Law “On the Judicial System and the Status of Judges”, the conclusion of the Venice Commission, the opinion of the EU, the letter of the IMF and the letter of the World Bank.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

When finalizing the draft law before the second reading, it is important to consider the following:

1) participation of the Public Council of Integrity in the selection process should be maintained, however, its negative conclusion should hamper the appointment to the position of an anticorruption judge (the IMF insists on preserving the PCI’s participation, and the Venice Commission also recommended that the procedure for selecting anticorruption judges differed from that applicable to the selection of other judges only to the necessary extent);

2) international experts should play a decisive role in the selection process as part of a special panel of the High Qualification Commission of Judges (participation of international experts will reduce the risk of fraud by the existing members of the HQCJ, which was clearly seen during the selection process for the new Supreme Court);

3) a special board of the HQCJ (4 international experts and 3 members of the HQCJ, approved by the Public Council of Integrity) should conduct a positive selection – that is, selection of the best of the contenders;

4) the requirements for future anti-corruption judges stipulated in the draft law are unrealistic for the purpose of selection of the full composition of a court, therefore, it is necessary to expand the range of persons potentially able to take part in the competition;

5) the powers of the cassation authority in cases of high-level corruption should not be exercised  by the current judges of the Supreme Court, selected in a manipulative way, but it is necessary to establish an Anticorruption Chamber of the Supreme Court in accordance with the rules of selection of anticorruption judges.

It is important to note that international experts can be more successful in positive selection (the best choice). In the meantime, the draft law, unfortunately, provides for the participation of international experts in the negative selection (the withdrawal of unfair candidates).

Another important point is that simultaneously with the Law “On the Supreme Anticorruption Court” it is necessary to adopt a law on the formation of this court, the draft of which must be promptly submitted by the President to the Parliament in accordance with the Constitution. Otherwise, the authorities may delay the establishment of the court, even having adopted the Law “On the Supreme Anticorruption Court”.