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Tribunal for Corrupt Officials: Two Versions of One Court – RLRFE

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Criminal cases regarding top corruption that are investigated by the NABU are regularly hindered by the courts. The effectiveness of new anti-corruption bodies rests on the last link – the judicial system. 

This situation may be changed with the appearance of the anti-corruption court, which is prescribed by the law “On Judicial system and status of judges”, however, significant progress has not been achieved yet. In early February, a group of MPs eventually submitted a draft law creating an anti-corruption court. But from the very beginning, it was not supported by the President. Instead, his administration began working on an alternative concept, which is not yet public. Journalists of program “Schemes”, a joint project of Radio Liberty and channel “UA: First” tried to find out why there are two different versions of the project and how a court should look like to promptly and impartially consider the cases of corrupt officials.

In June 2016, the President of Ukraine, Petro Poroshenko, while speaking before the Parliament during consideration of amendments to the Constitution, said that there is no more important reform than the judiciary one and acknowledged the mutual cover-ups and corruption in the courts. “The National Agency for Prevention of Corruption and The Specialized Anti-corruption Prosecutors Office were established. But all this is useless – useless, because after the high-profile arrests and detentions of corrupt officials who have millions of dollars of labelled notes extracted from their pockets by the Security Service of Ukraine, then judges release them for “thirty pieces of silver”,” he said then.

Expectations and Reality

A month after the speech, Poroshenko has signed the Law “On the Judicial System and Status of Judges”, which provides for the creation of Supreme Anti-corruption Court. In fact, this is just one line, without any definitions and mechanisms “Supreme Anti-corruption Court is established, the competition for the position of judges in this court must be started within twelve months from the date of enactment ofa law, which defines specific requirements for the judges of this court.”

Then a group of MPs and anti-corruption activists has begun work on their own draft law on the court which would promptly and impartially consider the cases of top-corruption. However, the draft law, the adoption of which would significantly improve the performance of existing anti-corruption bodies, seems to be not supported by the initiator of the judicial reform, the President.

“The draft law was ready last year. We like decent parliamentarians suggested the President of Ukraine to become its author. Unfortunately, he did not accept the proposal. Now we are organising it ourselves. In fact, each signature is accompanied by the resistance. The President has not wanted and does not want independent courts. Our task is to make him want at least one,” says one of the authors of the draft law, the Chairman of the Parliamentary Committee on Preventing and Combating Corruption, Yegor Soboliev.

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Nevertheless, on 1 February, MPs registered a draft law signing it themselves. The authors propose an independent and separate institution, The Supreme Anti-corruption Court and Anti-corruption Appeals Chamber.

Chairmen of these courts would be elected by the independent, more severe than usual, competition commission, would have the right to form their apparatus, and their work would be funded by a separate budget source.

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How should the new “model” of judges be selected for a new, truly anti-corruption court? This is one of the key theses of the draft law. Local experts who contributed to its development, are convinced that the new judges must be chosen by the individually created competition committee, which will have a decisive voice in determining the winners and which can include international experts.

So the committee could include, for example, Mary Butler, who helped to select the chief anti-corruption prosecutor, or Giovanni Kessler, who helped to select the head of the National Anti-Corruption Bureau.

However, experts say, the entourage of the President Poroshenko has a different vision of what should be the law, and seems to have gone the other way.

“In fact, the difference is about one point, the participation of international experts, which would have increased the credibility of the competition and the court. Why the international trust is important? For example, recently the SFI (State Fiscal Inspectorate, now the State Audit Service of Ukraine – ed.) reported that Ukraine arrested huge amounts of money belonging to Yanukovych and associates, but more than 1.5 billion of them are abroad. The decisions of anti-corruption courts of the first instance will be aimed to seek solutions to recover this money to Ukraine. The way to gain international credibility is to include international experts to the procedure of selection of judges,” says the Executive Director of Transparency International Ukraine, Yaroslav Yurchyshyn.

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Therefore, it seems that the selection procedure can be a cornerstone on of the draft lawl in the session hall.

An alternative concept from the OSCE and the Bankova?

The program “Schemes” received a document called “Concept of the Law on Supreme Anti-Corruption Court” ” classified by the OSCE. This concept was presented at a closed meeting of international experts and diplomats by the OSCE in January. As we found out, it was also developed by one of the experts of the Council on Judicial Reform under the President. The author admits that the position of Bankova was taken into account in the document.

“It was not presented officially because it was primarily designed for the donor community. Formally, this is done in the framework of cooperation with the Council on Judicial Reform, the body which works for President, which, in fact, is responsible for developing the draft law. I am a member of the council and has taken the initiative to begin work on this project. Because we understand that this issue should be brought before this Council, then, the desirable issues  (from the point of view of the Presidential Council – Ed.) were put into the Concept to be ready for discussion during the development of the draft law,” said the National Legal Advisor, head of the rule of law project, OSCE coordinator in Ukraine, Olexander Vodyannikov .

“Schemes” attempted to verify the status of the document in the Presidential Administration, but the deputy head of the Presidential Administration Olexiy Filatov, who is engaged in the judicial sphere, and his spokesman did not respond to the request of journalists to comment.

The authors of the Concept do not hide that their project proposes to entrust the selection of the new anti-corruption judges to “old staff”, namely the High Qualification Commission of Judges and the High Council of Justice. Their point is that inclusion of international experts would be “positive”, but would be technically difficult to organise.

“The simplest version of the commission is the HQCJ, but which is strengthen with international elements. If you create a separate commission, it immediately raises the question of who will ensure its activities. The HQCJ with all its resources is behind schedule, and offered separate committee of nine members with no staff will have to do the same thing that the HQCJ with a staff of 300 people, ” Olexander Vodyannikov explains the essence of the procedure proposed in the concept of the OSCE.

Earlier, the journalists of the program “Scheme” repeatedly has shown how the High Qualification Commission, formed after the Maidan, functions. It has had the opportunity to show itself when conducted mass re-attestation of judges who were appointed by decrees of Yanukovych as well as appellate judges of Kyiv and Kyiv region. Then re- attestation was passed by the judge-millionaires with wealth of unknown origin, judge-latifundists and those judges regarding whom the NABU provided information about the possible risks of corruption.

Why develop two parallel projects? The old, already “running-” judicial selection procedure eliminates the possibility of control of the international community, because such opportunity is simply not provided. In addition, the officials interested in preserving the old system will get extra time. Especially given the fact that the law “On the Judicial System” does not define the period during which a new anti-corruption court should be established.  Currently, the cases of NABU are considered by ordinary courts, corrupt nature of which is confirmed by the President. Does not delay of the adoption of law for mean at least temporarily retention of control over the courts?

Between the government and activists

The “Schemes” asked the Minister of Justice of Ukraine, Pavlo Petrenko, whether international experts are required for the committee for the selection of judges which became a stumbling block two projects. He was called one of the ideologists of judicial reform and in December he said that the law on anti-corruption courts in Ukraine would be already adopted in 2017. However, governmental ideologist has more hope in the civil society.

“If the international experts have a good will to join this process and help us, so we got the high-quality court, there are no questions. I would not like to talk about some supervision or control. We have the independence, sovereignty; we have a sufficient number of professional people who will come to the competition to supervise us. There is no better supervision than public control, so the statement “Foreigners should observe that we have a good competition” is wrong,” says Pavlo Petrenko.

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Thus, the vision of Minister who is governmental ideologue of judicial reform seems more coherent with informal OSCE concept developed together with the Bankova. However, the draft law developed by the anti-corruption activists and MPs stipulates that international experts should be involved in the selection committee on selection of new judges under the quota of Minister of Justice.

To the President

Obviously, the creation of anti-corruption court in Ukraine is an urgent need of these days. In the autumn Ukraine has promised the International Monetary Fund to adopt a law to create a court that would have strengthened the fight against corruption. However, the text of the Memorandum does not clearly define the terms.

Meanwhile, in informal conversations experts say that the new, not yet released memorandum with the IMF, specify anti-corruption courts as one of the conditions for obtaining the next tranche.

This need was stressed in the public speeches by the EU commissioners so it is clear that the international community understands Ukrainian situation and the importance of creating a separate independent court for top-corruption.

This need is also spoken out loud in Ukraine. Not only the civil activists but also opinion leaders try to attract the attention of Ukrainian authorities in every way possible. The open letter to the President was signed by the leaders of the Ukrainian Orthodox Church (Kyiv Patriarchate), Filaret, and the Ukrainian Greek Catholic Church, Svyatoslav, actress Ada Rogovtseva, musician, Sviatoslav Vakarchuk, and writer, Serhiy Zhadan.

“Slava Vakarchuk came to me with this idea. In his view, if there is a letter from the public figures, church leaders, from the people not from politics, there is more chance that it will cause resonance and the government will respond to the initiative,”- according to the writer, Serhiy Zhadan,  this was the way they tried to draw attention to the issue.

In December, the leader of Okean Elzy personally brought the letter to the President. The President pledged to make another meeting in the future, but he did not tell about the ongoing work on the concept of the law, which is done by the Council supervised by the President.

Experience of other countries

Creation of an anti-corruption court is the need of the countries with high levels of corruption. Overall there are about 20 countries in the world that separated the trial of corruption cases from all the other ones.

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But why the practice of creation of anti-corruption courts is not widespread in the world?

“Other European countries do not have this experience because there judicial system works more or less normally,”  says Roman Kuybida , judicial expert of the Reanimation Package of Reforms platform. “There is a big question whether existing courts will be ready to properly consider these cases. It is clear now that they are not ready because they are reluctant to consider the cases which have been already handed over to the Anti-corruption Bureau.”

Ukrainian courts are distrusted not only by knowledgeable experts but also among the population. In October, the sociologists presented the survey data, the population trusts the courts as much as Russian media. They have two worst rates.

Last link

So under these conditions, Ukraine could get new and politically independent judges who could provide prompt and qualitative consideration of serious corruption offences belonging to the jurisdiction NABU and the State Bureau of Investigation, which should start working this year. It seems logical that these judges should be selected by the special independent committee, which includes international experts.

However, the President and his entourage rely on “old staff”. The staff which have already raise questions of journalists and international experts. Probably just that prevents them not to waste time and join the work on already registered draft law, which in general does not contradict the concept of the OSCE. Because of the time delays the society can ultimately distrust the judicial reform and officials can find a way to maintain the desired control of the sphere.

In order to deprive the total control of officials in Ukraine, the National Anti-Corruption Bureau and Specialised Anti-corruption Prosecutor’s Office and the Agency for the Prevention of Corruption were established. There is only one link missing, anti-corruption courts whose decisions would be trusted by everyone, citizens and politicians as well as international partners. They could quickly solve the problem of so-called “transition” – as long as the judicial system is not fully purified and the circle of mutual cover-ups is not broken by the first convictions of managers of state enterprises, MPs and judges. Then, if the reform is successful, once each court from the district courts of the first instance to the new Supreme Court is “anti-corruption” one, the established anti-corruption courts could be unnecessary and eliminated.

Originally in Ukrainian written by Valeriya Yehoshyna

SCHEMES investigative project of Radio Liberty Radio Free Europe