Anti-corruption Court and UA Constitution: Nothing Extraordinary

There has recently been an on-going discussion in Ukraine about establishing anti-corruption courts. Such courts are widespread in other developing countries suffering from corruption – Croatia, Slovakia, Bulgaria, a number of Asian and African countries. However, creating a separate judiciary specifically for trying corruption cases proved to be a major stumbling block for Ukrainian politicians and “black box” of the unknown for lawyers.

Many politicians vehemently oppose the creation of the separate anti-corruption courts, arguing that creation of extraordinary and special courts is prohibited by the Constitution. Nevertheless, the Constitutional court as well as economic and administrative courts of general jurisdiction have been functioning for many years in our country. Numerous specialized jurisdictions function in Germany, the US; and in Italy, they even have special courts dealing with water supply. Surprisingly, neither here nor abroad nobody found anything extraordinary or special about such courts. Why is it, then, that this emerging anti-corruption specialization has triggered such rabid resistance?

Many politicians also insist that any additional guarantees of anti-corruption judges’ independence, including their selection process, constitute attributes of a special court and, consequently, are contrary to the Constitution.

Yet, Constitutional prohibition on setting up special and extraordinary court is not explained at the legislative level or in the Constitutional Court practice. Apparently, this provision is interpreted arbitrarily in order to advance one’s political interests.

Therefore, the big question is what are these special and extraordinary courts and whether anti-corruption courts contradict the Constitution.

When the “Founding Fathers” of the Constitution of Ukraine made provision about prohibition of setting up special courts, they clearly meant extraordinary judiciary created in wartime circumstances. When deliberating the draft of this provision (Clause 5 of Article 125 of the Constitution), Constitutional committee member F. H. Burchak referred to the Soviet extrajudicial “troikas”, while A. Korneyev meant court martials, and A. Yemets condemned all other ‘ridiculous’ courts courtesy of the Soviet past. In prohibiting setting up the special courts, the Constitution authors described the experience of Soviet and martial courts they wanted to leave in the past for good.

Setting up other special courts, such as economic or administrative, was never meant to be prohibited. Moreover, the authors of 1996 Constitution of Ukraine never set the final list of possible judicial specializations leaving it at the discretion of their successors.

In modern legal doctrine courts which are not subject of general jurisdiction are considered special, while the extraordinary courts are those set up ad hoc for the conduct of a certain, predominantly criminal case.

The concept of the anti-corruption corruption courts has nothing of the above: these courts will process all of the criminal cases investigated by the National Anti-Corruption Bureau; anti-corruption courts decisions may be appealed in the Supreme Court in accordance with the general rules. Anti-corruption courts must become part of the judicial system.

Rather than play on words with the concept of special anti-corruption courts should be regarded in the context of granting human right for the fair trial. European Human Rights Court ruled in the case Morris vs. the United Kingdom that a special court can be an independent and impartial judiciary “as long as sufficient safeguards are in place to guarantee their independence and impartiality”. Right to a fair trial must be granted through protection of the court from any external influence, proper qualifications of judges, procedural rights and guarantees of protection for the suspect etc.

Legislation on anti-corruption courts provides for the basic guarantees of the human rights (namely, legally guaranteed competence of a court, right to an attorney, right to appeal etc.), therefore there are no grounds to regard them as some extraordinary tribunals comparable to “conveyer belt style justice” à la Stalin. Under such circumstances, anti-corruption courts have the right to life, just like all other specialized courts in our country.

by Oleksandr Yevseev for

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