Poroshenko aide Vashadze says cor­rupt will be jailed

Kyiv Post - - National - BY OLEG SUKHOV SUKHOV@KYIVPOST.COM

Giorgi Vashadze, one of the authors of Pres­i­dent Petro Poroshenko's law on the anti-cor­rup­tion court passed in June, is con­fi­dent that even though no top cor­rupt of­fi­cials have yet been jailed in Ukraine, many will inevitably end up be­hind bars.

“(In­cum­bent au­thor­i­ties') time is com­ing to an end,” Vashadze, an ad­viser to Poroshenko’s chief of staff Ihor Rainin and founder at the In­no­va­tions and De­vel­op­ment Foun­da­tion think tank, said in an in­ter­view with the Kyiv Post in June.

In­deed, Vashadze be­lieves the anti-cor­rup­tion court, which the law states must be es­tab­lished within a year, will be a death sen­tence for high-level graft.

“I re­mem­ber some law­mak­ers’ eyes (when they adopted the anti-cor­rup­tion court law),” he said. “They were think­ing: ‘ Damn, what the hell are we adopt­ing?’”

But crit­ics of Vashadze, a na­tive of Ge­or­gia and a for­mer ally of Ge­or­gian ex-Pres­i­dent Mikheil Saakashvili, are more cau­tious, say­ing that there are lots of loop­holes in the law that would al­low the klep­toc­racy to ei­ther cre­ate a dys­func­tional anti-cor­rup­tion court, or to avoid be­ing con­victed by it.

Top-level graft

Re­fer­ring to peo­ple ac­cused of cor­rup­tion in Poroshenko's in­ner cir­cle, Vashadze said that “if they must be jailed, they will be jailed.”

Poroshenko’s top al­lies – Ihor Kononenko, Olek­sandr Hra­novsky and Oleh Hlad­kovsky – have been ac­cused of prof­i­teer­ing from state firms, although they deny the ac­cu­sa­tions.

“We’re creat­ing in­sti­tu­tions,” Vashadze said. “They must de­cide for them­selves – ei­ther they’re on the right side, or they’ll stay the way they are, and they’ll nec­es­sar­ily end up in jail.”

He men­tioned the case of fugi­tive law­maker Olek­sandr "Onyshchenko, who was deemed to be a pro­tégé of the pres­i­dent," but who was charged with cor­rup­tion by the Na­tional Anti-Cor­rup­tion Bu­reau of Ukraine. Onyshchenko, who is ac­cused of em­bez­zling Hr 1.6 bil­lion ($64 mil­lion), fled Ukraine in 2016 and turned into an op­po­nent of Poroshenko.

The fugi­tive law­maker and busi­ness­man has been claim­ing that Poroshenko was his part­ner in cor­rupt schemes, which in­cluded brib­ing law­mak­ers. Poroshenko’s ad­min­is­tra­tion de­nies all of Onyshchenko’s al­le­ga­tions.

Bad or good can­di­dates?

The anti-cor­rup­tion court law was passed by the Rada on June 7 and signed by Poroshenko on June 11. On June 26, Poroshenko also signed an ad­di­tional law to for­mally cre­ate the court.

Ac­cord­ing to the law, at least three mem­bers of the six-mem­ber Coun­cil of In­ter­na­tional Ex­perts, a for­eign ad­vi­sory body, can call a joint meet­ing of the High Qual­i­fi­ca­tion Com­mis­sion and the Coun­cil of In­ter­na­tional Ex­perts to de­cide whether to veto a can­di­date for the anti-graft court if there are doubts about his or her pro­fes­sional in­tegrity, source of wealth, or skills.

Then the can­di­date must be ap­proved by a ma­jor­ity of the joint meet­ing, and at least three in­ter­na­tional ex­perts have to vote for him or her.

“Only good ones will be se­lected, and the High Qual­i­fi­ca­tion Com­mis­sion will choose among them,” Vashadze said. “This wine is good, but this wine is bet­ter. You like Tsi­nan­dali (a Ge­or­gian wine va­ri­ety), and I like Na­pareuli, but we both know that it’s wine, not urine.”

But Vi­taly Ty­tych and Ro­man Kuy­bida – mem­bers of the Public In­tegrity Coun­cil, the ju­di­ciary’s civil-so­ci­ety watch­dog – have the op­po­site view: The High Qual­i­fi­ca­tion Com­mis­sion will be able to choose ex­clu­sively “bad” and gov­ern­ment-con­trolled can­di­dates in an ar­bi­trary way when it as­signs scores. As a re­sult, there will be no good and in­de­pen­dent can­di­dates to choose from, and for­eign­ers' veto pow­ers will not mat­ter, Ty­tych said.

More­over, six for­eign rep­re­sen­ta­tives will not have enough time and re­sources to as­sess can­di­dates’ back­ground within the 30-day dead­line af­ter scores are as­signed, Ty­tych ar­gued.

Vashadze coun­tered that for­eign ex­perts would have time to ex­am­ine can­di­dates in the pe­riod be­fore scores are as­signed, which would be about a month.

Ty­tych also said that, un­der the law, for­eign ex­perts would not be able to as­sess the wealth of those of the can­di­dates’ rel­a­tives who do not live with them.

As­sess­ment pro­ce­dure

An­other loop­hole in the law is that it does not solve the prob­lem of the High Qual­i­fi­ca­tion Com­mis­sion’s ar­bi­trary and sub­jec­tive as­sess­ment method­ol­ogy, ac­cord­ing to the Public In­tegrity Coun­cil. The com­mis­sion de­nies the ar­bi­trari­ness of its method­ol­ogy.

Dur­ing the Supreme Court com­pe­ti­tion, 210 scores were as­signed for anony­mous tests, and the High Qual­i­fi­ca­tion Com­mis­sion could as­sign 790 points out of 1,000 points with­out giv­ing any ex­plicit rea­sons. To make the com­pe­ti­tion’s cri­te­ria ob­jec­tive, 750 points should be as­signed for anony­mous le­gal knowl­edge tests and prac­ti­cal tests, Ty­tych said.

“I'm not against chang­ing the method­ol­ogy for as­sign­ing scores,” Vashadze said. “Let's sit and dis­cuss this.”

Choos­ing for­eign­ers

The law has also been crit­i­cized by lawyers and anti-cor­rup­tion ac­tivists be­cause it is still not clear from its text which for­eign or­ga­ni­za­tions will se­lect rep­re­sen­ta­tives for the Coun­cil of In­ter­na­tional Ex­perts. There is a risk that some of the in­ter­na­tional ex­perts will be bi­ased in fa­vor of the Ukrainian au­thor­i­ties, which may al­low top of­fi­cials to cre­ate a pup­pet court, said Kuy­bida, a view echoed by Daria Kale­niuk, the ex­ec­u­tive di­rec­tor of the Anti-Cor­rup­tion Ac­tion Cen­ter.

Vashadze re­jected the ac­cu­sa­tions, say­ing that the Coun­cil of Eu­rope, the Eu­ro­pean Union, the World Bank, the Or­ga­ni­za­tion for Se­cu­rity and Co­op­er­a­tion in Eu­rope, the Fi­nan­cial Ac­tion Task Force on Money Laun­der­ing, the Or­ga­ni­za­tion for Eco­nomic Co­op­er­a­tion and De­vel­op­ment and the In­ter­na­tional Mone­tary Fund would be el­i­gi­ble.

Mean­while, rep­re­sen­ta­tives of the Coun­cil of Eu­rope, the Eu­ro­pean Union and the OSCE have been ac­cused of sid­ing with Ukrainian au­thor­i­ties dur­ing the con­tro­ver­sial Supreme Court com­pe­ti­tion. They deny the ac­cu­sa­tions of bias.

Vashadze said it would be im­pos­si­ble for Ukrainian au­thor­i­ties to “buy” sev­eral for­eign rep­re­sen­ta­tives.

He also ar­gued that he was against the par­tic­i­pa­tion of Trans­parency In­ter­na­tional and lo­cal Ukrainian non-gov­ern­men­tal or­ga­ni­za­tions in the com­pe­ti­tion for anti-graft judges be­cause they were in­volved in pol­i­tics and could have bi­ases.

Un­der the law, only Ukrainian cit­i­zens and for­eign­ers who have been judges or pros­e­cu­tors abroad in cor­rup­tion cases for at least five years can be nom­i­nated to the Coun­cil of In­ter­na­tional Ex­perts.

“The pres­i­dent de­manded that, although we can’t (ex­plic­itly) ban Ukraini­ans from par­tic­i­pat­ing, we’ll write it in such a way that there will only be peo­ple from other coun­tries,” Vashadze said.

Ty­tych crit­i­cized the de­ci­sion to pre­vent the nom­i­na­tion of Ukraini­ans by for­eign or­ga­ni­za­tions and ex­clude Ukraine’s Public In­tegrity Coun­cil from the com­pe­ti­tion. He said that, com­pared to lo­cal in­de­pen­dent ex­perts, for­eign­ers of­ten know less about Ukraine and will not be able to prop­erly as­sess the can­di­dates’ back­grounds with­out Ukraini­ans’ help.

IMF role

The IMF does not want to send its rep­re­sen­ta­tives to the Coun­cil of In­ter­na­tional Ex­perts, Vashadze said. The IMF could not com­ment im­me­di­ately. Ty­tych said, how­ever, that he be­lieved the law pre­vents the IMF from par­tic­i­pat­ing be­cause it does not have treaties with the Ukrainian gov­ern­ment.

Com­ment­ing on the IMF’s re­quire­ments for the anti-cor­rup­tion court, with­out which Ukraine will not con­tinue to re­ceive dis­bur­sals from a $17.5 bil­lion loan pack­age, Vashadze said that the coun­try would be able to sur­vive with­out IMF fund­ing.

“If you think the law was passed thanks to the IMF, you’re mis­taken,” he said. “We told them to back off many times.”

Scan­dalous amend­ment

Ac­cord­ing to one of the law’s amend­ments, ap­peals against ver­dicts in graft cases sent to trial be­fore the anti-cor­rup­tion court’s cre­ation will be con­sid­ered by or­di­nary courts, not the High Anti-Cor­rup­tion Court’s ap­peal cham­ber. Crit­ics say that the amend­ment on ap­peals ef­fec­tively gives amnesty to sus­pects in ex­ist­ing top-level graft cases. In ad­di­tion, the Anti-Cor­rup­tion Ac­tion Cen­ter and law­mak­ers Ie­gor Soboliev, Mustafa Nayyem and Sergii Leshchenko ac­cused the au­thor­i­ties of ef­fec­tively fal­si­fy­ing the law and in­sert­ing the clause by stealth.

Vashadze re­jected the ac­cu­sa­tions, say­ing that the amend­ment had been read at a meet­ing of the Verkhovna Rada, ac­cord­ing to a tran­script of the meet­ing.

“If we cor­rect this amend­ment, there will be no prob­lems at all,” he said.

He ac­cused crit­ics of the clause of politi­ciz­ing the sit­u­a­tion. “No­body knew that this amend­ment was there, and Poroshenko didn’t know that it was there,” Vashadze added.

Cas­sa­tion prob­lem

An­other cri­tique of the law is that all sec­ond ap­peals against old and new NABU cases — called cas­sa­tion in Ukraine — will be con­sid­ered by the dis­cred­ited Supreme Court. Kuy­bida and Ty­tych told the Kyiv Post this would al­low the au­thor­i­ties to block cor­rup­tion cases. The way to solve this prob­lem would be to cre­ate a spe­cial anti-cor­rup­tion cham­ber re­cruited un­der trans­par­ent rules at the Supreme Court, Kuy­bida said.

Vashadze said he dis­agreed with the pro­posal. “If the anti-cor­rup­tion court is trusted, the Supreme Court will not can­cel its de­ci­sions,” he said.

Giorgi Vashadze, an ex-ally of for­mer Ge­or­gian Pres­i­dent Mikheil Saakashvili and now ad­viser to Pres­i­dent Petro Poroshenko's chief of staff Ihor Rainin, speaks on Dec. 23, 2015 at Saakashvili's anti-cor­rup­tion fo­rum in Kyiv. Vashadze is a co-au­thor of the anti-cor­rup­tion court law, which was passed in June. (Ukrafoto)

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