Anti-cor­rup­tion court is only sal­va­tion for ju­di­cial re­form

Kyiv Post - - Front Page - ANAS­TA­SIA KRASNOSILSKA

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.

Im­i­ta­tion game

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.

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