High Anti-Corruption Court in Place: No More Excuses?

If the HACC has come into operation, does it mean that Ukraine has no more excuses and has to eliminate corruption? The Ukrainian service of Voice of America has talked to Kateryna Ryzhenko, Head of Legal at Transparency International Ukraine. In January TI published the results of Corruption Perceptions Index 2018. Ukraine scored 32 points, while the average European score is 66 points.

Commenting on Ukraine’s score, TI Ukraine’s Executive Director Andrii Borovyk said that if Ukraine continues fighting corruption at the same rate, we will need decades to catch up at least with Poland.

VoA: Can we say that Ukraine finally has all the components needed to bring high-ranking corrupt officials to justice effectively?

KR: We can clearly say that the establishment of the court has completed the cycle. Now our anti-corruption infrastructure has it all, from investigation to prosecution to justice in a separate agency, i.e. the High Anti-Corruption Court. Therefore, of course, there are a lot of expectations and hopes around this court. It was launched on September 5. There have already been hearings. For instance, at the decision of the HACC, chief judge of the Economic Court Mr. Tatkov was arrested.

The court came into operation on September 5. There was the question what kind of cases it would receive. As a civil society organization that works on this subject, we were very concerned that the newly created  court would receive 3.5k old cases and reiterated again and again that a law should be passed to restrict the number of cases which would be transferred to the court.

This draft law has already been submitted by the President as urgent and supported in the Parliament, so I hope it will be signed in the near future and come into effect. This will restrict the jurisdiction of the Anti-Corruption Court. The court will receive only the cases investigated by the NABU with prosecutorial support of the SAPO. Later on, all high-profile corruption cases will be reviewed by this new institution, by the HACC.

VoA: So we can say that everything is in its place now.

KR: The anti-corruption infrastructure is complete, all its links are functioning. Now the only thing left to do is comply with the law, implement all legislative standards and demonstrate good results.

VoA: Are there still any obstacles to corruption counteraction?

KR: On the legislative level, more or less everything has been regulated, or will be very soon. Of course, there are issues like the notorious NACP, which the public has been demanding to reboot for a very long time, because the way it is now, it is a political tool instead of a part of the anti-corruption infrastructure. But again, there is a draft law now, which is going through all the motions in the Parliament. I hope this situation will be resolved very soon, too. Of course, there are still some isolated steps left to make, but overall, yes, all basic things have been covered and now corruption-related crimes can be investigated, prosecuted and punished effectively.

We are happy, but cautiously so. Why? Because there are a lot of questions about the implementation. The HACC is a new institution. There is no frame of reference and a lot of things will have to be improvised. There are also draft laws put forward by the new parliament which introduce things like civil forfeiture. Cases on civil forfeiture will also be reviewed by the HACC. It is an absolutely new phenomenon for Ukraine. It is not yet clear how it will be implemented, how this article will function. So, of course, there are things to worry about. But overall, the infrastructure is in place, the basic things have been resolved — for instance, the infamous Lozovyi’s amendment and the situation with wiretapping for the NABU and the SIB. A lot of things that civil society and international partners have been talking about have been resolved. As for other things, let’s give them time and in half a year, we can see whether they work or not. Thus far, we have been creating everything. Now, we have to look at the results.

VoA: So they cannot say things like, we want to do this, but we cannot because of this or that. No more excuses like that.

KR: Hopefully not, but I’m sure they can find new excuses and things that don’t work for them. That is why there is a system of checks and balances, an equilibrium of executive, legislative and judicial authorities, so that it would be possible to handle such challenges and problems. It is absolutely normal that more questions will arise and something else will need to be done: legislation will need to be amended, new practices will need to be developed. These things are a mechanism under construction, they are growing and getting more complex. Perhaps, we cannot predict some challenges. But the fact is that during the last three or four years, whenever somebody asked why corrupt officials weren’t in jail, the response was always that there were no proper courts. We hope that it’s not going to be an issue anymore.

VoA: Does the removal of MP immunity create the risk of excessive power accumulated in the President’s hands?

KR: Currently, the problems of both the impeachment and the immunity, a hot subject for at least the last ten years, it seems, have been resolved. We should understand that we will see the results of the law on cancellation of immunity fairly soon, if any. Immunity was often the reason for certain notorious people avoiding criminal responsibility. I certainly think that a certain restriction of MP immunity is a positive step and a good initiative. Your status should not help you to avoid criminal liability. The new law, which has actually been adopted, still protects an MP, for instance, he or she cannot be held responsible for statements made in the Parliament or for voting, which restricts the field for political persecution. Are there risks that this is going to be abused? There are always risks. Hopefully, the justice system will help to prevent such risks, and the independence of the current anti-corruption infrastructure will be enough for this immunity restriction mechanism not to turn into a tool of punishment.

Now, for the distribution of power. The law on impeachment has been passed as well. I believe the eventual impeachment procedure is very different from the one that has been discussed ad infinitum even by the previous parliament. It will be very hard to use. It includes at least three parliamentary votes. At the first stage, a new one compared to the previous versions, over 220 MPs have to initiate the vote for the fact that they believe there are enough reasons to start impeachment proceedings against the President. Then, an investigative commission has to get together to review these accusations. Then at least 300 MPs have to vote that the commission’s decisions are conclusive and convincing. Then, the information is reviewed by the Supreme Court and the Constitutional Court. And the third vote in the Parliament will be for impeachment per se.

It is hard to imagine a situation where it would be possible to get that number of votes even at the initial stage, just to set the procedure in motion. I understand that now the People’s Servant party has the so-called mono-majority. In theory, it can initiate such things, but other parties will have a hard time getting that many votes just to start the procedure. I cannot say that the adoption of the law on impeachment has made this procedure realistic.

Yes, there was no such law in the past at all. It is a positive step that it has been passed, no question about that. But only time will tell if this procedure will be possible in real life. With the suggested scenario, it would be very hard just to get the votes and go through all the stages to use the impeachment.

But I want to say another thing: this doesn’t mean that the impeachment procedure should be simple. The President should have some mechanisms that would protect them in their position to make the necessary decisions. However, there should also be things that provide a realistic impeachment procedure — for instance, for treason, or for perpetrated crimes. Currently, the adopted law is the first step, after so many years. I hope it is just the beginning of the process.

We should understand that there is a distribution of power, there is the executive, legislative and judicial branch. Of course, the President needs to be able to perform his or her functions. MPs should also have a certain level of immunity to be able to perform their functions.

There are other initiatives of the President which are questionable in this context. At TI Ukraine, we believe that the draft law on the President having the right to appoint the NABU director and the SIB director is not quite within the limits of fair distribution of power. We think it is not appropriate for the President to appoint heads of agencies that are executive in their nature. The President is a separate entity, not meant to interfere with any of the branches. We should avoid a situation like the one with have with the Security Service of Ukraine, where the President appoints the head. We’ll see how the current President and the current Parliament will handle it. The previous ones were often accused of making the SBU political and directly influenced by the President. That is why we need to restrict such influence. I believe the President shouldn’t appoint heads of law enforcement agencies, such as the NABU and the SIB.

VoA: With MPs losing immunity and with the impeachment, is there any danger that law enforcement agencies or courts obtain too much power?

KR: I don’t think that’s a legitimate risk. Impeachment won’t happen tomorrow. It would require treason or a major crime. If we speak about the law on impeachment, the Constitution says “for treason or other wrongdoings.” What are those other wrongdoings? Representatives of the ruling party say what is meant are crimes. But this is not specified in legislation.

As for MPs, again, that is why we have a whole anti-corruption structure. It is not up to one agency to decide who is guilty and who is not guilty. There is a whole number of measures which ensure that the rights of an accused individual are observed. So if all the legislation is followed, there should be no abuse of power. There are pretrial investigation agencies, there is prosecution, there are supplementary anti-corruption agencies, and all of them have their fair share on independence. And there is the court, which will consider the evidence and the facts and make the decision. That is a normal situation the way it functions in most countries of the world.

These are the very mechanisms that were demanded by the society and international partners following the Revolution of Dignity. It wasn’t about the opportunity to bring somebody to justice, but about the opportunity to carry out the procedure reasonably, with all the standards in place. And to have an independent professional court make its decision.

Of course, the first cases of the High Anti-Corruption Court will show whether the new institution is taking off. The excuse that something is lacking won’t work anymore. And then, the question will be whether all the parts of this mechanism work professionally and can handle their authority. We will see the outcome.

VoA: Can the Anti-Corruption Court be considered Zelenskyy’s achievement?

KR: There are two sides of the coin. The HACC is a victory that has been in the making for at least the last three years. It just came into operation on September 5. Of course, I am thankful to the new President and the parliament for pushing forward the law restricting the jurisdiction of the court at the current stage. It is very important, and it is good that they understand it. However, the anti-corruption infrastructure was initiated way before the new administration arrived.

There is optimism, because the new parliament seems willing to handle problematic things. There are certain risks of handling so many draft laws so quickly. The public still has its questions and reservations when it comes to certain draft laws. Some of the public requests were disregarded. Of course, that is somewhat worrying. But we hope that there will be more dialogue in the future, and we will be able to reach a consensus, and make changes accordingly.

It is the first step. A huge number of laws have been passed. So it’s just the beginning. It’s all about implementation and their further use by MPs and all the appointees of the new authorities. The next year or year and a half, it will be crucial to monitor the work of new or reformed agencies. When we see the results, then we can talk about optimism or lack thereof.

Corruption cannot be fully eliminated. Corruption exists in every country across the world. The Corruption Perceptions Index shows that no country has 100 points in the ranking, which would mean there is no corruption there. Last year’s leader, Denmark, has 88 points out of 100. Ukraine has 32. The average score in Europe is 66. We have room for development. We hope all these new initiatives are designed for the long haul, for systematic changes. Changes that are not implemented lead nowhere.

VoA: What needs to happen and when for you to say, whoa, here it comes!

KR: Honestly, I very much look forward to the results of the High Anti-Corruption Court’s work. We have been fighting for this for many years. We have gone from “We don’t need the Court, it exists only in third world countries and all courts should be anti-corruption courts” to the real institution functioning since September 5. Honestly, it’s already blowing my mind. Sometimes, it’s hard to imagine that it’s true and that we did it.

There are definitely reasons to be happy. But when you achieve a certain goal, you set a new one. There is always room to grow and want more. But there are many reasons to be happy. There is a hope for further fight against corruption.

There is definitely a result, if we compare the situation in 2012 and now. That’s why, when my colleagues and other Ukrainians speak about “fails” and “betrayals,” about how bad everything is, I think it’s enough to look at what we had and what we’ve got now. The change is remarkable.

VoA: Are you looking forward to convictions?

KR: (laughs) Not anymore. No, I am looking forward to fair justice. The idea of anti-corruption institutions is not to have more convictions (even though that’s how it’s explained to the public a lot). The idea is that the cases should be handled with observance of all legislative standards and human rights. All parties of the trial should be able to express their opinion. That’s the most important thing. The court shouldn’t make decisions based on the idea that it should show everyone what it’s got and throw somebody in jail. The court is not an institution designed for punishment. It is an institution designed for justice. If there is enough evidence, there will be convictions. If there isn’t, the court should acquit the accused people, and that is absolutely normal, too.