Anti-corruption court is only salvation for judicial reform
After more than a year of denigrating an anti-corruption court and resisting pressure to create it, President Petro Poroshenko abruptly switched tactics on Oct. 4. He suddenly called for the creation of an independent court to preside in trials involving defendants accused of major corruption.
But nobody should be fooled. This is no change of heart. Instead, Poroshenko is stalling again. His approach is to create a working group in parliament to reach consensus on what the anti-corruption court should look like. This delay tactic condemns the creation of an anti-corruption court to the distant future, if ever.
At the same time, parliament passed detrimental amendments to the criminal procedure code which significantly undermine the possibility to investigate all serious crimes in Ukraine, Including top corruption cases.
The role of the unreformed, distrusted trial courts increases tremendously in top criminal investigations. A pretrial investigative judge, to some extent, replaces a prosecutor, acquiring powers to decide whether the case should be further investigated and brought to court or closed.
The urgency for creating a truly independent anti-corruption court increases by the day.
Without such a court, critical investigations under way by the National Anti-Corruption Bureau of Ukraine will be terminated.
The president promises quick establishment of an anti-corruption chamber in the Supreme Court for top corruption cases that have reached the final appeal, while outlining a long and winding path for the development of anti-corruption courts of first and appellate instances.
Poroshenko proposes the creation of a multi-party group of lawmakers to study the issue in parliament. It is tasked with agreeing on a compromise draft law. Only after that the President will submit the draft as his priority legal initiative.
Yet again, the president adopts the tactics of delays and shifting responsibility. While decisions on judicial reform are obviously taken in the Presidential Administration and passed through a special Council on Judicial Reform under the presi- dent, a working group in parliament will bring interminably long hearings and meetings without the involvement of key decisionmakers.
To avoid indefinite postponement, the immediate task is to create a working group in the Presidential Administration with a tight deadline for creation of a draft law. The president will then have direct influence on the progress of the group and the shape of its work. It is also another way to test his sincerity.
Since the Council of Europe’s Venice Commission will present its opinion and recommendation on anti-corruption court for Ukraine early next week, a deadline of two weeks is enough to draft a new law in accordance with these recommendations.
Moreover, international experts have already presented to the administration their concept of anti-corruption courts and publicly confirmed their readiness to help with drafting the text.
Selection of judges
Poroshenko implies that foreigners are not needed to help select an anti-corruption court. Unfortunately, however, the results of the competition for the new Supreme Court show that existing bodies are not capable of selecting reputable candidates for judgeships.
The selection of anti-corruption judges should, however, be performed by a special panel that shall include experts recommended by international community. This approach was recommended by international donors, working in Ukraine and, if approved by the Venice Commission, should be adopted as basis for future draft law on anticorruption court.
High price of delay
The newly adopted presidential law on judicial reform drastically reduces the statue of limitations for investigations and invests discredited judges with greater powers in deciding whether to close criminal cases.
With each delay, however, allegedly corrupt officials escape their day in court.
The changes will restrict the length of a criminal investigation of severe crimes to six months unless a judge agrees to extend the deadline.
Now the term of pre-trial investigation, prior to issuance of notification of suspicion is not limited. After the suspicion is announced, the investigation may be extended for up to a year by decision of a prosecutor, not a judge.
Moreover, under the changes, judges’ rulings cannot be appealed.
New deadlines for investigation are absolutely unrealistic for severe and complex crimes.
For example, NABU cases uncovering the real beneficiaries of corruption schemes require investigating multiple false-front companies and their banking transaction. Gaining access to the records can require up to 10 months because of bank secrecy legislation.
Therefore, requests for extension of investigations are inevitable and the same judges who now block NABU cases will have unchecked powers to terminate cases altogether.
This will likely mean an end to important criminal NABU investigations under way involving the heat of the Central Election Commission head Mykhaylo Okhendovskiy as well as members of parliament Oleksandr Onyshchenko, Maksym Poliakov and Boris Rosenblat. Cases against ex-President Viktor Yanukovych could be terminated the same way.
The severe reduction in statute of limitations for pre-trial investigations was introduced by the MP Lozovoy of the Radical Party, who the target of a criminal investigation on tax evasion. The case against Lozovoy is also likely to be closed under new regulations passed into law that he introduced.
In the meantime, criminal Cases filed by NABU are blocked by trial courts all over Ukraine. Pro-presidential speakers frequently claim that the reason is the low quality of NABU’s work.
This is not true. In 40 percent of NABU’s cases, judges have not even held the first hearing on the case. In cases where hearings have been held, they are normally scheduled as infrequently as once every three or fourth months, creating unacceptable delays in delivering swift justice.