7 steps for the President to avoid creation of independent anticorruption court

The President is requested to submit his draft law on anticorruption court in upcoming weeks. Caught in the dead end by the opinion of the Venice Commission of the Council of Europe, he had to change his position from advocating anticorruption judicial chamber to claiming continuous support to independent anticorruption court.  

At the same time, the President  gave an unambiguous signal that implementation of other part of recommendations – expeditious submission of new draft law based on key provisions of the bill #6011 – shall not be expected.

The President has already outlined tactics to delay establishment of independent anticorruption court for at least 4-5 months and at the same time – to shift responsibility on the Parliament and even the Venice Commission.

Apart from that, the Presidents has also given some hints on his tactic to limit independence and effectiveness of future anticorruption court. Below is detailed analysis of President’s new postponement and manipulation techniques.

Step 1.

Create working group in the Parliament for development of the draft law

Instead of submitting his draft law directly, the President called for the parliament to create an inter-fraction working group, which may spend years in fruitless discussion on the concept of anticorruption court. The same approach is publicly advocated by President’s official representative in the Parliament  Iryna Lytsenko and head of the People’s Front fraction Maksym Byrbak.

It is worth reminding, that all other draft laws on judicial reform had been submitted by the President without prior working groups in the parliament. Moreover, draft laws for which there had been political will of the President, were adopted in the Parliament in a lightning-fast manner: the law on judicial reform was submitted on May 30, 2016 and adopted by the Parliament already on June 2nd, 2016; so-called law on reintegration of Donbass – submitted on October 4th, 2017, adopted on October 6th, 2017.

If needed, coordination of the positions of political fractions should take place before adoption of the draft law in the second reading, as provided by the Rules of Procedure of the Parliament.  

However, it is obvious, that the issue of anticorruption court is on the bottom of President’s priorities and he is not willing to invest efforts into finding support for the issue.

Step 2.

Fail to withdraw draft law 6011 as a legal pretext not to submit new law

For many months Presidential Administration has been trying to excuse the absence of presidential legal proposal on anticorruption court with existence of draft law #6011 on anticorruption court, submitted by a group of MPs. Formally, according to the Rules of Procedure of the Parliament, new draft law may not be registered in the parliament if there already is a draft law on the same issue.

Both the President and the Parliament have ignored this rule in a number of other occasions, most recent one being submission on presidential draft law #7230 on abolishing parliamentary immunity disregarding registered draft law #6773 from 158 MPs on the same issue.

Still, with draft law on anticorruption court the President shows no will to proceed quickly and majority fractions of the parliament may give him another good excuse. Withdraw draft law #6011 legally requires not only initiative of its authors, but consent of the Parliament (this rule applies for any draft law that is included into the agenda of the session of the parliament, which is the case with draft law #6011). Authors of the draft law #6011 have already submitted a formal request to withdraw the bill, but ruling parliamentary fraction may well fail to support the issue.

In this case the President may refuse to even discuss his legal initiative on anticorruption court until next – Spring 2018 – session of the Parliament, when bill #6011 may be withdrawn by authors without prior consent from the parliament. However, formally it will once again be the Parliament who does not allow the President to submit new bill.

Step 3.

Request one more opinion from the Venice Commission for presidential draft law on anticorruption court

Iryna Lytsenko announced the plan to send President’s draft law on anticorruption court to the Venice Commission for reconsideration before its adoption even in the first reading. Political justification of such a step is obvious: adoption of the Commission’s opinion normally takes up to three month. Legal justification, however, is much weaker: unless the President intends to violate the European standards of judicial independence and existing recommendations of the Venice Commission,  new opinion of the Commіssion on draft law on anticorruption court is not required. Existing guidance of the Commission is precise enough, so any subsequent attempt to involve the Venice Commission on the stage of development of the draft law is a game of postponing adoption of the bill using the with the hands of this European institution.

Step 4.

Initiate creation of regional anticorruption courts instead of one court with national jurisdiction  

While the Venice Commission clearly recommended Ukraine to create on specialized anticorruption court, the Presidential Administration may offer regional anticorruption courts as first instance judicial institutions. This approach has already been voiced by the Prosecutor General Yuriy Lytsenko.   

However, such an approach directly contradicts recommendations of the Venice Commission.

The Commission has also analyzed the draft law #6529 on anticorruption judicial chambers on local and regional level and has made a clear conclusion: rationale and justification of such a far-reaching measure remains unclear. The Commission has underlined, that “ the approach of draft law No. 6529 deviates from the international obligations of Ukraine to set up a specialised anti-corruption court and from the original idea to give a response to the inefficient adjudication of cases investigated and prosecuted by NABU and SAPO, i.e. of high-level corruption cases”.

Why shall the President’s Adminsitration want to establish regional anticorruption courts?  Creation of 27 regional anticorruption courts with at least 162 judges (at least 6 for each court) obviously takes much longer, than creation of one court with 70 judges. In the meantime, cases on high profile corruption will remain blocked or will be undermined in existing distrusted local courts.

Step 5.

Create appellate anticorruption instance of already selected Supreme Court judges

Since political class is bound to create an independent first instance anticorruption court, they may attempt to retain control over anticorruption justice in a different way – to avoid selection of appellate anticorruption judges in an independent competition with participation of international donors.  For this, the Presidential Administration may offer to create appellate anticorruption chamber in the Supreme Court from recently selected judges – those with poor human rights records, experience in political persecutions and questionable assets.

However, the Venice Commission clearly recommended to select both first instance and appellate anticorruption judges with crucial role of international donors. Appointing appellate anticorruption judges circumventing special selection will be regarded as severe violation of the Commission’s recommendations.

Step 6.

Involve international donors into selection of anticorruption judges as advisors

Key recommendation of the Venice Commission is as follows: “temporarily, international organisations and donors active in providing support for anticorruption programmes in Ukraine should be given a crucial role in the body which is competent for selecting specialised anti-corruption judges, similar to the role envisaged for them in draft law No. 6011“.

In this regard the Commission offered Ukraine two options. The first option is to create a special body for selection of anticorruption judges, half of members for which shall be nominated by the High Qualification Commission of Judges, while another half – by international donors. The second model envisages the role of international donors’ nominees as associated members of the High Qualification Commission of Judges specifically for selection of anticorruption judges.

It has long been emphasized, that selection of anticorruption judges is a cornerstone of the whole concept of anticorruption court. Claiming support for creation of anticorruption court few day before the opinion of the Venice Commission was released, the President of Ukraine also mentioned that “Ukrainians are able to form such a court”. In such a way the President made it clear that international participation in selection of judges is not welcome.

To neutralize international element in selection of judges, the Presidential Administration may offer international donors the role of observers, honorable consultants or any other role not directly related to decision-making. Principle of sovereignty will be refered to justify this approach.

However, any advisory decision will easily be overruled or manipulated, as happened with 60% of negative opinion of Public Integrity Council in process of new Supreme Court judges selection. In such a situation internationals will either find themselves legitimizing decisions taken beyond their substantial influence or refuse to participate in a show, which also fits the interests of political class.  

The President’s Administration may also use more sophisticated techniques to prevent international participation in selection of anticorruption judges, such as to establish non-realistic rules or timeline for selection of nominees by international donors, allow High qualification commission of judges or even the State Security Service to perform vetting of international donors’ nominees and thus to block their appointment for special selection body without any justification.

While the Venice Commission did recommend to elaborate transparent and competitive procedure nomination of people by international donors, establishment of unrealistic procedure that will block participation of international donors in selection of anticorruption judges will still be regarded as severe violation of the Commission’s previous recommendations.

Step 7.

Give anticorruption court jurisdiction over all corruption-related crimes and misconducts

According to the Venice Commission’s opinion, jurisdiction of the High anticorruption court should comply with jurisdiction of National Anticorruption Bureau of Ukraine.

On the countrary, the President’s Administration may offer for High anticorruption court to cover all corruption-related crimes and even adminsitrative misconducts.

Officials statistics of the Supreme Court, only in first half of 2017 4444 corruption crimes and corruption-related administrative misconducts were filed to courts, among which only up tp 25 are crimes of high profile corruption. Given broad jurisdiction, anticorruption court will not be able to focus on those high-profile cases, blocking of which in non-reformed courts have originated the need in specialized anticorruption court.

By Anastasia Krasnosilska, advicacy expert, lawyer at Anticorruption action center

For KyivPost Op-ed section

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