Anti-Cor­rup­tion Court Moves To Top Of Re­form Agenda

Kyiv Post - - Front Page - BY OLEG SUKHOV SUKHOV@KYIVPOST.COM

Ukraine’s Pres­i­dent Petro Poroshenko has op­posed the cre­ation of an anti-cor­rup­tion court for more than a year, un­til he could no more.

Poroshenko’s de­nounc­ing of the anti-cor­rup­tion court — the fi­nal link re­quired to pros­e­cute cor­rup­tion in Ukraine — has re­cently brought him crit­i­cism of the Western part­ners and out­rage at home.

But on Oct. 4, the pres­i­dent nominally re­versed course and sup­ported the court’s cre­ation.

It hap­pened when it be­came known that the Euro­pean Com­mis­sion for Democ­racy through Law, bet­ter known as the Venice Com­mis­sion, would come out in sup­port of such an in­sti­tu­tion days later.

The com­mis­sion in­deed backed an op­po­si­tion bill to cre­ate an anti-cor­rup­tion court on Oct. 9 and re­jected Poroshenko’s idea of in­stead cre­at­ing anti-cor­rup­tion cham­bers within Ukraine’s dis­cred­ited ju­di­ciary. The Par­lia­men­tary As­sem­bly of the Coun­cil of Europe on Oct. 12 urged Ukraine to adopt all of the com­mis­sion’s rec­om­men­da­tions.

But if the anti-cor­rup­tion court is cre­ated, anti-cor­rup­tion ac­tivists fear that Poroshenko will try to make sure that he con­trols the se­lec­tion process. This is why Ukrainian ac­tivists are seek­ing for­eign over­sight of the com­pe­ti­tion.

Also, Poroshenko sug­gests that the ap­peals to the anti-cor­rup­tion court’s rul­ings be con­sid­ered by the Supreme Court.

Ukraine’s cur­rent ju­di­cial sys­tem, even af­ter the ap­point­ment of 111 new Supreme Court jus­tices, re­mains dis­trusted and dis­cred­ited — fail­ing to pros­e­cute suc­cess­fully a sin­gle cor­rup­tion case. The new anti-cor­rup­tion in­sti­tu­tions are also in­ef­fec­tive be­cause they have no re­li­able courts to hear their cases.

Protest pres­sure

How­ever, many fear protests are the only way to con­vince Poroshenko to act swiftly. The cre­ation of an anti-cor­rup­tion court is among the key de­mands of a ma­jor rally that op­po­si­tion par­ties plan for Oct. 17 in Kyiv, com­ing ahead of the March 2019 pres­i­den­tial and par­lia­men­tary elec­tions.

Law­maker Ie­gor Soboliev told the Kyiv Post that the pres­i­dent and other in­cum­bent politi­cians live in fear of a third up­ris­ing, com­ing af­ter the 2004 Or­ange Rev­o­lu­tion and 2013–2014 EuroMaidan Rev­o­lu­tion. The first one pre­vented ex-Pres­i­dent Vik­tor Yanukovych from com­ing to power while the sec­ond one drove him from power.

“The threat of a pop­u­lar up­ris­ing scares Poroshenko the most,” said Soboliev, who is the chair­man of par­lia­ment’s anti-cor­rup­tion com­mit­tee.

The In­ter­na­tional Mone­tary Fund could put pres­sure on Poroshenko by cut­ting off fund­ing un­til the anti-cor­rup­tion court is in place, lawyer Markiyan Hal­a­bala and Anas­ta­sia Kras­nosil­ska, an ex­pert at the An­tiCor­rup­tion Ac­tion Cen­ter, told the Kyiv Post.

The United States and the Euro­pean Union can also de­mand that Ukraine ful­fill its com­mit­ments to the In­ter­na­tional Mone­tary Fund, in­clud­ing the prom­ise to cre­ate an anti-cor­rup­tion court, be­fore they pro­vide any non-IMF fi­nan­cial as­sis­tance, Kras­nosil­ska added.

Po­lit­i­cal in­flu­ence

If the po­lit­i­cal will is there, a law on the anti-cor­rup­tion court could eas­ily be passed by Novem­ber, and the court it­self could be cre­ated by June or July 2018, Vi­taly Shabunin, the head of the Anti-Cor­rup­tion Ac­tion Cen­ter’s ex­ec­u­tive board, told the Kyiv Post.

Ex­perts ar­gue, how­ever, that Poroshenko’s strat­egy will be to stall for time in­def­i­nitely.

“His pro­posal to cre­ate a work­ing group means that he wants to shift re­spon­si­bil­ity to par­lia­ment,” Mykhailo Zh­er­nako, a ju­di­cial ex­pert at the Rean­i­ma­tion Pack­age of Re­forms, told the Kyiv Post. “And he can then say that the process is be­ing de­layed by par­lia­men­tar­i­ans.”

Un­der the op­po­si­tion bill, which was sub­mit­ted by Soboliev and other law­mak­ers, the Verkhovna Rada, the pres­i­dent and the cabi­net will each del­e­gate three com­mis­sion mem­bers to ap­point anti-cor­rup­tion judges.

The Venice Com­mis­sion said, how­ever, that mem­bers of the Com­pe­ti­tion Com­mis­sion tasked with ap­point­ing judges of the High Anti-Cor­rup­tion Court should not be des­ig­nated by po­lit­i­cal fig­ures and sug­gested that the High Qual­i­fi­ca­tion Com­mis­sion of Judges should nom­i­nate mem­bers of the Com­pe­ti­tion Com­mis­sion.

How­ever, the High Qual­i­fi­ca­tion Com­mis­sion has it­self been crit­i­cized for be­ing con­trolled by Poroshenko and the Peo­ple’s Front, the par­lia­ment’s sec­ond big­gest party — an ac­cu­sa­tion that the com­mis­sion mem­bers deny.

The Pub­lic In­tegrity Coun­cil, a civil so­ci­ety watch­dog, said on Oct. 3 that it had “grounds to as­sume that the (re­cent Supreme Court) com­pe­ti­tion was rigged” by the High Qual­i­fi­ca­tion Com­mis­sion and the High Coun­cil of Jus­tice, so that it would ap­point po­lit­i­cally loyal can­di­dates.

For­eign­ers’ role

One cru­cial is­sue is whether Poroshenko will agree to the par­tic­i­pa­tion of in­de­pen­dent for­eign in­sti­tu­tions in the com­pe­ti­tion to select anti-cor­rup­tion court judges. Poroshenko hinted that he won’t, say­ing that Ukraine can cre­ate an anti-cor­rup­tion court “on its own.”

The Venice Com­mis­sion rec­om­mended that for­eign­ers play an

im­por­tant role in the com­pe­ti­tion to select anti-cor­rup­tion judges.

Ac­cord­ing to the op­po­si­tion bill, for­eign donors would nom­i­nate three of the Com­pe­ti­tion Com­mis­sion’s nine mem­bers, and they would be au­to­mat­i­cally ap­pointed by the jus­tice min­is­ter.

In May, a work­ing group of Ukrainian civil so­ci­ety groups and for­eign donors went even fur­ther and con­cluded that peo­ple nom­i­nated by for­eign­ers should be in the ma­jor­ity on the Com­pe­ti­tion Com­mis­sion, to guar­an­tee that anti-cor­rup­tion judges are in­de­pen­dent.

Other hur­dles

Un­der Ukraine’s Con­sti­tu­tion, anti-cor­rup­tion judges cho­sen by the Com­pe­ti­tion Com­mis­sion will still have to be ap­proved by the pres­i­dent-con­trolled High Qual­i­fi­ca­tion Com­mis­sion and High Coun­cil of Jus­tice, and be for­mally ap­pointed by the pres­i­dent.

Ac­cord­ing to the op­po­si­tion bill, the High Qual­i­fi­ca­tion Com­mis­sion, the High Coun­cil of Jus­tice and the pres­i­dent do not have a right to refuse to ap­point the nom­i­nees. How­ever, Poroshenko may still give them the right to block the ap­point­ment of anti-cor­rup­tion judges in his fu­ture leg­is­la­tion.

Pub­lic trust in the High Qual­i­fi­ca­tion Com­mis­sion and the High Coun­cil of Jus­tice is low. Twenty-five dis­cred­ited judges deemed cor­rupt or dis­hon­est by the Pub­lic In­tegrity Coun­cil were nom­i­nated for the Supreme Court by the High Qual­i­fi­ca­tion Com­mis­sion in July and ap­proved by the High Coun­cil of Jus­tice in Septem­ber.

An­other way for Poroshenko to block cor­rup­tion cases would be through the ap­peals.

He sug­gested that the ap­peals to the rul­ings of the anti-cor­rup­tion court be con­sid­ered by the yet-tobe-cre­ated anti-cor­rup­tion cham­ber within the Supreme Court.

If the anti-cor­rup­tion cham­ber is staffed by judges re­cently ap­pointed to the Supreme Court, the Pres­i­den­tial Ad­min­is­tra­tion will be able to in­flu­ence them, Mykhailo Zh­er­nakov and Ro­man Kuy­bida, ex­perts from the Rean­i­ma­tion Pack­age of Re­forms, told the Kyiv Post.

“The com­pe­ti­tion pro­ce­dure should be the same (for the High An­tiCor­rup­tion Court and the Supreme Court’s anti-cor­rup­tion cham­ber),” Zh­er­nakov said. “Oth­er­wise all of this be­comes mean­ing­less.”

The op­po­si­tion bill and the Venice Com­mis­sion, how­ever, en­vis­age a new com­pe­ti­tion to select judges for the Supreme Court’s anti-cor­rup­tion cham­ber, in­clud­ing the par­tic­i­pa­tion of for­eign­ers to en­sure their in­de­pen­dence.

In a lim­ited num­ber of cases, the fi­nal in­stance for ap­peals would be the Supreme Court’s Grand Cham­ber, which is part of the con­ven­tional dis­cred­ited ju­di­ciary.

Col­lapse of law

An­other prob­lem is that the amend­ments to pro­ce­dural codes passed by par­lia­ment on Oct. 3 may kill any cor­rup­tion in­ves­ti­ga­tions pur­sued ei­ther by fu­ture anti-cor­rup­tion courts or by con­ven­tional ones, due to the lim­ited term of in­ves­ti­ga­tions and other hur­dles they im­pose.

Ac­cord­ing to the ini­tial text of an amend­ment ini­ti­ated by Rad­i­cal Party law­maker An­driy Lo­zovy, pros- ecu­tors would have to file no­tices of sus­pi­cion for sus­pects in crim­i­nal cases within six months for grave crimes, and within three months for crimes of medium sever­ity. More­over, all cases must be sent to trial within two months af­ter a no­tice of sus­pi­cion is filed, ac­cord­ing to the amend­ment.

Peo­ple’s Front law­maker Leonid Yemets said on Oct. 5 that the fi­nal ver­sion of the codes en­vis­aged a term of one-and-a-half years for grave crimes, and one year for crimes of medium sever­ity. The courts will be able to block in­ves­ti­ga­tions by re­fus­ing to ex­tend their terms, and their de­ci­sions to close cases can­not be ap­pealed.

Crit­ics say the new terms are still in­suf­fi­cient. Shabunin and Sergii Gor­batuk, head of the in ab­sen­tia unit at the Pros­e­cu­tor Gen­eral’s Of­fice, said that, if they are ap­plied to al­ready-open cases, the amend­ments may also lead to the clo­sure of ongo- ing ma­jor cor­rup­tion and mur­der in­ves­ti­ga­tions.

Ac­cord­ing to the amend­ments, which have yet to be signed by Poroshenko, cor­rup­tion cases can also be blocked through ap­peals against no­tices of sus­pi­cion. The amend­ments also put an end to the ju­di­ciary’s trans­parency by al­low­ing judges to ban even open tri­als from be­ing filmed.

More­over, the amend­ments were adopted amid nu­mer­ous pro­ce­dural and le­gal vi­o­la­tions, since the law­mak­ers were not given the fi­nal text to read and thus did not know what they were vot­ing for, while some law­mak­ers were filmed vot­ing for oth­ers, which is il­le­gal.

“Th­ese amend­ments were fal­si­fied,” Gor­batuk said. “The Verkhovna Rada didn’t vote for them. To as­sume that they will be­come law in this man­ner would mean a col­lapse of the law in the state, and of the state it­self.”

Ex-law­maker Mykola Mar­ty­nenko at­tends an April 21 court hear­ing on ac­cu­sa­tions of em­bez­zling $17 mil­lion. Anti-cor­rup­tion ac­tivists say ju­di­cial re­form amend­ments re­cently passed by par­lia­ment could make it al­most im­pos­si­ble to pros­e­cute high-level cor­rup­tion cases. Mean­while, with the cases of Mar­ty­nenko and oth­ers stalled in Ukraine’s dis­cred­ited courts, fears are high that Pres­i­dent Petro Poroshenko will try to sab­o­tage the in­tro­duc­tion of new anti-cor­rup­tion courts in Ukraine. (Volodymyr Petrov)

State Fis­cal Ser­vice Chief Ro­man Nasirov, a sus­pect in a cor­rup­tion case, dur­ing a hear­ing at Kyiv’s Solomyan­sky Court on March 5, with an of­fi­cer of the Na­tional Anti-Cor­rup­tion Bu­reau stand­ing guard. The case is stalled. (Volodymyr Petrov)

Law­maker Mykhailo Dobkin, who re­cently left the Op­po­si­tion Bloc fac­tion, at a hear­ing at Kyiv’s Pech­ersk Court on July 15. Dobkin has been charged with abus­ing his pow­ers dur­ing the al­lo­ca­tion of land plots. (Volodymyr Petrov)

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