Urgent creation of anticorruption court will rescue Presidential judicial reform from collapse

Unexpectedly good news on anticorruption court came from the President on October 4th: he finally called on establishment of separate anticorruption court. Expectedly, good news are followed with bad ones: the President’s approach is to create a working group in the Parliament, which makes the process unpredictably lengthly.

At the same time, the Parliament passed detrimental amendments to the criminal procedure code which significantly undermine the possibility to investigate all serious crimes in Ukraine, іncluding top corruption cases. The role of trial courts, which are not yet reformed, in all top criminal investigations increases tremendously: pretrial investigative judge to some extent replaces prosecutor with powers to to decide whether the case should be further investigated and brought to court  or closed.

The need in and role of independent Anticorruption court thus also goes up, since any delay in its launch will result in termination of very important NABU investigations. Instead, the President promised quick establishment of anticorruption chamber in the Supreme Court as final instance for cases of top corruption and outlined a long way for development of new draft law on anticorruption court of first and appeallate instances.

“The Imitation Game”

The President proposed to create an interfaction group in the Parliament, which has to agree on a compromise draft law on anticorruption court. Only after that the President will submit the draft as his priority legal initiative.

This plan reflects the tactics of delays and shifting the responsibility: while decisions on judicial reform are obviously taken in presidential administration and passed through special council on judicial reform under the President, a working group in the parliament serves to arrange lengthly consultations without some key decision-makers involved.

However, common practice of Ukrainian Parliament is to build compromises among parliamentary when the draft law is prepared for second and final hearing and MPs may offer their amendments. This approach is also used for legal initiatives of the President.

To avoid the scenario of postponement, task number one should be to create a working group in the Presidential Administration and to set а very short deadline for draft law to be presented. So the President will have a direct influence on the progress of the group and will be able to personally moderate the process of drafting the bill.

Since the Venice Commission will present its opinion and recommendation on anticorruption court for Ukraine early next week, two weeks time should be enough to elaborate new draft law on anticorruption court in accordance with these recommendations.

Moreover, international expert community have already presented to the Administration its concept of the anticorruption courts and publicly confirmed their readiness to help with drafting the text.

Corestone: selection of judges

In his speech on anticorruption court the President also emphasized, that Ukrainians are capable to create an anticorruption court. These words matter a lot. The President is likely to imply, that participation of international community in selection of judges is not welcome.

Unfortunately, results of  competition for the new Supreme Court show, that existing bodies for selection of judges are not capable of selecting reputable candidates on judicial position; for example, these bodies recommended for appointment two judges who participated in a recognized case of political persecution – adopted final decision on conviction of Yuriy Lutsenko in the times of former president Viktor Yanukovych .

Both civil society, international donors and number of MPs insist that panel for selection of anticorruption judges shall include experts recommended by international community. In June 2017 informal working group of international donors presented their common understanding on establishment of anticorruption court of Ukraine, that includes the following mechanism for selection of judges:  special selection panel shall be established by the High Qualification Commission of Judges, half of members of such panel may be those of the Commission, but another half – experts recommended by international donors, who provide Ukraine assistance for combating corruption.

If approved by the Venice Commission, this approach should lay the basis on the draft law on anticorruption court.

High price of delay with establishment of anticorruption court

Newly adopted Presidential law on judicial reform extremely shortens the term of investigation and gives investigative judges from non-reformed local courts powers to decide whether to prolong the term or to close the investigation. With regards to these regulations, every day of postponement of creation of anticorruption court is literally measured in number of corrupt officials evading liability.

In short, if within 6 months of investigation of a severe crime a prosecutor will not be able to issue a notification of suspicion and  will not receive judicial permission of the court for prolongation of the period of investigation, the investigation must be terminated; if the investigation is not finished in 2 month after notification of suspicion and judicial permission for prolongation is not granted, the case also must be closed. To compare with, now the term of pre-trial investigation prior to issuance of notification of suspicion is not limited, and after the suspicion is announced investigation may be prolonged for up to 12 months by decision of a prosecutor, not a judge.  Moreover, such decision of single judge is not appealable.

Both six months term for announcing a suspicion and two months term for finalizing the case afterwards are absolutely not realistic for severe crimes.

For example, in NABU cases only uncovering real beneficiary of corruption schemes requires investigating through 7-10 false companies, for each of which bank operations must be studies, whereas gaining access to bank secrecy may require up to 10 month according to effective legislation. Therefore, requests for prolongation of terms become inevitable and same judges who now block NABU cases receive unlimited opportunities not just to block, but to terminated cases altogether.

After the new law comes into effect, chances for termination of  NABU investigations against the head of Central Electoral Commission Okhendovskiy, the MPs Onyshchenko, Poliakov, Rosenblat are very high. The same relates to PGO investigations against the regime of former president Yanukovych.

Interestingly, the clause on new terms for pre-trial investigation was introduced by the MP Lozovoy, the Radical Party, who himself is subject of criminal investigation on tax evasion and is not presented with notification of suspicion since the Parliament failed to grant it’s permission for that. The case of Lozovoy is also likely to be closed under new regulations of the Code of Criminal Procedure.

In the meantime, сases filed by Anticorruption bureau are blocked in first instance (trial) courts all over Ukraine. Pro-presidential speakers frequently claim, that it is low quality of NABU cases that results in absence of convictions. Judicial statistics disproves this argument. In 40% of NABU the cases judges have not hold even first hearing on the case, while officially only 1,2% of overall number of criminal cases face delays in court. In cases where consideration have started hearings are normally scheduled as often as once in three-four months.    

Below is the list of top-5 cases, where courts failed to provide timely and fair justice.

The case of former military prosecutor of ATO Kostiantyn Kylik, accused of illicit enrichment of UAH 2,6 millions.

The case of Kylik is significant as the first criminal case on illicit enrichment that as such will lay the basis for general judicial practice for this crime. Accusations against Kylik are based on evidences that his spouse, mother of his two children, with whom he shared a household, acquired expensive real estate property that cannot be covered by common official income of their family. Judicial miseries began with Kyiv appeal court restoring Kylik on his position in Prosecutor’s General office, where he had both formal and informal opportunities to intervene into investigation against him, despice request from NABU and previous judicial decision to suspend Kylik.

Moreover, in few months Kylik was promoted to a higher position in Prosecutor’s General office.  To continue with, after the indictment for Kylik was sent to Golosiivskiy district court of Kyiv, it waited for 5 months for hearings to start. As of now, the case is heard with breaks and postponements of several months long. In the meantime, another court upon lawsuit from Kylik ruled that Kylik and his spouse do not have family relations, despite shared parenthood, household and expenses, which allegedly makes Kylik not liable for assets of his wife.  In the meantime, while the court acknowledges no family relations between Kylik and his wife, the couple in receiving congratulations on birth of their third child.

The case of Roman Nasirov, suspended head of the State Fiscal Administration, suspected of embezzlement of UAH 2 billions in case related to MP Onyshchenko and public company Ukrgazvydobuvannya. While the indictment is not sent to court yet, Nasirov is following the steps of Kylik. He also filed a lawsuit requesting the court to confirm that the Head of the State Fiscal Administration shall not be held responsible for his decision on unlawful tax installments for companies related to Nasirov, since he only formally adopted decisions offered by his subordinates. If the court accepts such a judgement, criminal case against Nasirov will be most likely undermined.

The case of judge Oleksiy Byran from Odessa, accused of receiving a bribe of UAH 500 thousands.

This judge is well-known for shooting in detectives who were attempting to search his house with proper judicial warrant. The indictment has been sent to the court in September 2016. Since that time the panel of judges has been changed twice, in one case – due to retirement of a judge. After 27 judicial hearings have been held, the court decided to restart consideration of the case from the very beginning. This case is one of the most simple one investigated by NABU this far, however the court mainly spends time on procedural issues without consideration the essence of the case.

The case on embezzlement of UAH 205 thousands through public company “Odessa seashore plant”. Figures of this case are so-called Martynenko’s managers deputy head of public company Naftogaz and deputy director of the plant Mykola Shchyrikov. After the indictment was filed, Shevchenkivskiy district court of Kyiv first refused to consider request for suspension of suspects from their positions, then postponed the case for several month under the pretext of judges being on vacations, while in the end adopted the decision to consider the case behind closed doors.

The case of so-called Ternopil prosecutors,  a groups of prosecutors, policeman, judges and lawyers, who organized a system of unlawful influencing criminal investigations and judicial decisions. The case, being filed to the court in November 2016, waited for 9 months for the first hearing to be held.

Given these facts, the only way to guarantee fair justice for cases of grand corruption is to create and independent first and appellate anticorruption court with international participation in selection of judges in order to eliminate political interferences.

Anastasiya Krasnosilska, AntAC advocacy manager

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