Anastasia Krasnosilska: Chambers instead of anti-corruption court will not work
Almost a holy war is being waged on whether Ukraine needs anti-corruption judicial chambers or a separate anti-corruption court.
However, this discussion is misleading. What Ukraine really needs is judges able to consider cases of grand political corruption in a timely, fair and independent way. The selection of the institutional design of anti-corruption judicial body must be subordinated to the aim of putting in place new judges. Chambers do not fit this aim.
Anti-corruption chambers: New institution without new people?
Advocates of anti-corruption chambers argue that this option is quicker, requires fewer resources and fits the judicial system; however, they never explain how chambers will be staffed with new independent judges. This is because the very idea of anti-corruption judicial chambers was brought up to create a reform-imitating facade for the preservation of judges loyal to the political class or controlled by their questionable backgrounds.
There is only one option of a quick establishment of anti-corruption judicial chambers: judges for such chambers must be selected out of acting judges. It means, that the same judges who now block cases of grand corruption in courts and whose actions raise the need in a special anti-corruption judicial institution will be quickly labeled as anti-corruption judges.
Acting judges fail to deliver justice in high profile corruption
Unfair and unequal treatment of National Anti-Corruption Bureau (NABU) cases in courts becomes obvious already on the stage of the pre-trial investigation, for example when judges consider preventive measures for NABU suspects. The case of ex-member of parliament, Mykola Martynenko, gives a good example: suspected in the embezzlement of $17,5 million, he only received non-financial personal bail as a preventive measure for the time of the investigation, while in ordinary criminal cases, suspects mostly are arrested until the case goes to the court.
The trend continues when high profile indictments are sent to the court. Judges abstain from considering NABU cases, preferring to deal with other cases, go for assignments to other courts or even resign. In 40 percent of cases filed by National Anti-Dorruption Bureau, hearings have not yet started. One may claim that such delays are common for Ukrainian judicial system; however, according to official statistics, only 1.2 percent of criminal cases were considered with a violation of procedural time frames in 2016. Some NABU cases were waiting for 12-14 months without event first hearing hold.
Moreover, judges undermine accusations against top officials. Let’s take the case of military prosecutor Kostiantyn Kyluk, accused of illicit enrichment, as an example. The accusation is based on a fact that his wife has acquired property that cannot be justified by their common income. But the court rules that Kylik has no family relationships with this woman and therefore has no relationship to her property, despite that fact that they lived together within the period of alleged enrichment and despite the fact that they gave birth to two children.
It is obvious that a label of a specialized anti-corruption judge cannot influence fairness of acting justices and prevent them from taking politically motivated decisions.
Finding new judges through old procedures: mission impossible
Prosecutor General Yuriy Lutsenko, one of the high-profile advocates of anti-corruption chambers, claims that anti-corruption judges will be selected through a competitive procedure. This sounds tempting but does not seem possible.
Firstly, with the selection of new judges, anti-corruption chambers are no longer the quick option. Thousands of judges will be required for anti-corruption chambers and selection process can take up to two years. If the chambers are to be established within all local or appellate courts, at least 1,800 judges will be needed. To compare with, selection of 120 new judges for the Supreme Court of Ukraine already lasts nine months and is not finished yet.
Secondly, judges for anti-corruption chambers may only be selected through current selection procedure which is already compromised. No constitutional lawyer will agree with a possibility to establish special selection procedure for only a group of judges within one court; even if established, such procedure will be immediately challenged by the Constitutional Court. An effective procedure of selection of judges has already been hardly criticized among the Ukrainian experts and has raised concerns among international partners of Ukraine.
In the case of selection of new Supreme Court judges, scandals started already after scores for examination of candidates were released, because statistical analysis of these scores implied manipulations and because the High Qualification Commission of Judges decided to admit candidates who did not receive minimum pass rate.
As a result, current selection procedure allowed judges associated with mass corruption in the judicial system to successfully pass all stages of selection and have high chances of being recommended for appointment to the new Supreme Court.
The High Qualification Commission of Judges, responsible for the selection process, disregarded 60 percent of negative opinions of the Public Integrity Council, a civic body established to guarantee that public concerns regarding the candidates are not overlooked.
Nevertheless, all kinds of questionable backgrounds are found among successful candidates to the new Supreme Court. The Commission accepted judges who were involved in political persecutions (for example, judges Serhii Slynko and Nastavniy, who adopted final verdicts against Pavlichenko brothers); accepted at least nine judges whose judgments run against the right to a fair trial and other fundamental rights, as the European Court of Human Rights confirmed (for example, judge Yemets, who managed to violate the right to a fair trial and the ruling of the European Court of Human Rights two times in the same case); accepted candidates who prohibited peaceful protests in times of ex-President Viktor Yanykovych (for example, judges Golovchyk, Chepak, Semeniuk).
Moreover, an average judge who is a successful candidate for the new Supreme Court enjoys expensive real estate objects worth more than Hr 1 million, which can hardly be justified by the official earnings of either a candidate or his/her spouses (for example, judge Chervinska, who uses a house of 448 square meters that formally belongs to her son, a public official with a modest salary on the moment when the house was bought).
These examples illustrate that with the current procedure, the selection of anti-corruption judges is likely to end up with an appointment of judges with imperfect profiles and vulnerable to political pressure, same as those who are blocking NABU cases now.
Since judges will be appointed for a lifetime, such a fake reform of the anti-corruption judiciary will destroy the hope for breaking corruption impunity for upcoming 20 years.
The concept of separate anti-corruption court emphasizes the need in a transparent and trustworthy selection of new anti-corruption judges, with such a selection being protected from any political influence.
Moreover, if we recognize the need in such a selection, the establishment of a separate anti-corruption court is the only feasible option.
Firstly, according to the law, only a specialized court may have special requirements towards its judges, therefore only in this case additional filters in selection procedure are possible.
Secondly, the launch of fully operational High Anticorruption Court requires only 150 judges and therefore may be proceeded quicker and under focused civic oversight (as opposed to 1,800 judges needed for anti-corruption chambers all over the country).
We do not even need to invent from scratch the selection mechanism that would be aссepted by society and international partners as a trustworthy one. An informal working group of international donors of Ukraine has already presented a common position on the creation of anti-corruption court for Ukraine. They insist that adding new filters to selection procedure is key to ensuring the independence of future anti-corruption judges and propose to create a special panel within High Qualification Commission of Judges where experts recommended by international donors will have decision-making rights.
As the European Union Ambassador to Ukraine Hugues Mingarelli reinforced, Ukraine needs an independent selection of specialized judges for the anti-corruption judicial institution. There is only one option that meets the criteria of independence: a separate anti-corruption court.
By Anastasia Krasnosilska, an advocacy officer at the AntAC.
First published at KyivPost Op-ed section.