Author: Andrii Sliusar, analyst at ТІ Ukraine 

Availability of a professional and independent judicial system is one of the main guarantees for existence of a rule-of-law state. Such system aims to fulfil two most important tasks: from the one side to guarantee a proper application of laws and serve as a safeguard from the abuse of power by authorities and to provide certainty of punishment for law violators, from the other side.

A court dependent and controlled from the outside not only fulfils its tasks, but it is a reliable tool in corrupt officials’ hands, too. One of the key foundations that courts activity should is the trust of society in their decisions.

Unfortunately, courts in Ukraine traditionally appear on the lists of the most corrupt state institutions. Once again, this data was confirmed by the conclusions of the latest Global Corruption Barometer survey, conducted by the global anti-corruption coalition Transparency International.

Analysis of judgments in corruption cases held by “Our Money” project sustained that high officials are not tried for corruption offences in Ukrainian courts. They analyzed 819 verdicts concerning 952 officials in corruption cases between 1 July 2015 and 30 June 2016.

Most verdicts delivered (53,6%) involved D Category officials; 17,5 % – C Category officials and 16,1 % B Category officials. 12,5 % of the verdicts regarded private actors. Only 3 passed verdicts concerned A category officials, though by the time of analysis they did not come into legal force.

One third of all the verdicts were fines usually not exceeding 20 000 uah. The other third part of the defendants was decriminalized: 300 people were dismissed on parole, 25 people were legally pardoned, 11 people were dismissed for other reasons such as lapse.

84 people got less serious punishment due to use of the Criminal Code Article 69 rather than the relevant one.

Most of verdicts were passed in cases of bribery, generally 361 people were punished for accepting bribes.

Most of bribes did not exceed 10,000 UAH (63% cases), and only 18 verdicts were delivered in cases when bribes exceeded 100,000 UAH.

During the period under consideration 4 judges were sentenced to imprisonment and one judge was given a fine. 4 judges were discharged.

A judge of Amur-Nyzhnodniprovskyi District Court of the city of Dnipro was sentenced to fine for accepting a bribe amounting to 25 000 UAH. He signed up the contract of avowal of guilt and due to the Article 69 of the Criminal Code was sentenced to the fine amounting to 25 500 UAH.

8 more verdicts have not yet come into legal force, in these cases the bribes amounted from 1,300 to 35,000 USD. Only in one case the bribe was 3 500 UAH.

Under such circumstances, the best possible way is the establishment of a court based on the principles of independence and professionalism, which can become the gold standard for the judicial authorities.

 

Anti-corruption Courts in the World

The idea of establishing anti-corruption courts has been implemented for many years in different forms in a number of countries. Judicial institutions specialized in examining corruption offences (separate courts, specialized courts or chambers of courts) were established at least in 17 jurisdictions (though in separate cases such judicial bodies are authorized to consider other categories of cases in line with corruption): Philippines, Pakistan, Croatia, Bulgaria, Mexico, Slovakia, and others.

Motives for the Establishment

In case of considerable corruption and subordination of courts of general jurisdiction, establishing a specialized judicial body enables to use more efficient selection procedures and form a staff from honest and independent judges.

In particular, a specialized court was established in Slovakia because of fear that criminal organizations can blackmail or bribe judges from courts of general jurisdiction; in Indonesia – because of considerable level of influence of political and business elites on general corruption level of judicial court.

Arguments for foundation of anti-corruption courts are improving work efficiency by reducing work load (due to determined court jurisdiction and comparatively fewer cases to consider), advancing professional specialization of judges (due to their consideration of cases of one or similar categories) as well as using innovative approaches to the work organization and documents flow.

For example, creation of specialized tribunal in Croatia for considering corruption and other serious offences was justified by the need to establish judicial personnel trained to consider the most serious and important social cases.

On the other hand, in case of considerable differentiation of the system of such specialized courts it usually faces the same problems as courts of general jurisdiction: inefficiency and deferred consideration of the cases, corrupt judges. Even though in Indonesia anti-corruption courts were established in opposition to corrupted courts of general jurisdiction, several judges of these courts were accused of corruption. In the Philippines, a judge was dismissed from the specialized anti-corruption court due to the accusation of complicity in corruption offences.

One of the disadvantages of the process of creation of such courts is factual establishment of two parallel judicial systems, while one and the same kinds of cases can be considered both by specialized courts and courts of general jurisdiction. In this case, when different tracks are applied to the identical cases, such judgments can be discredited (because the procedure of consideration of the cases should be the same apart from the court specialization). For example, in Indonesia such organization of judiciary was considered unconstitutional due to the possibility for two parallel judicial systems to consider the similar cases. In general, it is possible to define several models of specialized anti-corruption courts.

Organization modelCountry[1]
Independent specialized judges

Independent specialized anti-corruption judges are established in the courts of general jurisdiction, the procedure of appealing their verdicts remains unchanged.

Bangladesh – 145(2016)/145(1995)

Kenya – 145(2016)/122(2003)

Lower courts

Specialized anti-corruption court exercises exclusive jurisdiction over corruption cases, though verdicts can be appealed in the Supreme Court.

Slovak Republic –  54(2016)/56(2009)

Croatia  –  55(2016)/62(2008)

Pakistan – 116(2016)/87(1999)

Mixed courts

Anti-corruption court can sit as the court of the first instance in some more serious corruption cases. It can also serve as the court of appeal in other corruption cases, which are considered in the courts of general jurisdiction. Appeal cases against the verdicts of the anti-corruption court are brought before the Supreme Court.

The Philippines – 101(2016)/36(1995) (1995– the first year of the rating compilation, only 41 country was presented in the list)

 

Parallel courts

The system of anti-corruption courts includes both courts of the first instance and appeal courts.

Bulgaria  –  75(2016)/75(2012)

Indonesia  –  37(2016)/96(2002)

Malaysia – 55(2016)/60(2011)


Development Procedure

In most countries judges of specialized anti-corruption courts have the same status and go through the same selection procedure as judges of general jurisdiction of the same level. Though in some countries there are special selection procedures for the judges of anti-corruption courts. Usually these procedures require special professional qualification or practical experience from the candidates. For example, in Slovakia the judges have to go through a special examination to prove the absence of any negative factors, which could be used as a subject for blackmailing or illegal influence. Now the same examination is applied to all the judges.

In Indonesia the question of providing the special selection procedures for anti-corruption courts was solved in the most comprehensive way. In the specialized courts cases are considered not only by professional judges, but also by ad hoc judges, who are usually professional lawyers, judges emeritus or other professionals in the field. The candidates for the position of an ad hoc judge should go through a certain selection procedure, while the members of commission are the representatives of the Secretariat of the Supreme Court and civic society. The professional judges are appointed to the position by the President for a term of 5 years, which can be renewed only one more time. According to the first draft law from 2002, the cases in the anti-corruption courts were considered jointly by five judges, three of them being ad hoc judges (this system was established due to distrust in the professional judges who were generally considered to be more corrupted). This system was changed in 2009, though: currently heads of each local anti-corruption court (who are professional judges) can personally define the proportion of the professional and ad hoc judges in judicial boards.

Jurisdiction of the Court

Due to the category of offence – most of anti-corruption courts consider cases of corruption and corruption related offences. Though some of specialized courts have broader competence, it allows them to consider other serious offences as well. For example, specialized courts of Croatia consider both cases of political corruption and organized crime. Special criminal court of Bulgaria considers cases of organized crime along with corruption cases. Special criminal court of Slovakia considers not only corruption and money-laundering cases, but cases of organized crime and premeditated murders as well. Other specialized courts have more particular authority.

Due to the offence severity – the competence of most of anti-corruption courts is rather defined according to the category of offence than to the offence severity, but in some countries such approach is also widely applied. For example, in Cameroon only cases of distress on an especially large scale are considered in the special criminal court, while similar cases that resulted in lower losses are considered in the courts of general jurisdiction. In the Philippines the last changes to the legislation limited the specialized court’s competence in respect to the extent of damages. In Slovakia after a series of press publications describing that the specialized criminal court dealt with cases of petty corruption (sometimes amount of bribe was less than 20 €), a public discussion has started regarding the necessity to limit the court’s jurisdiction to serious offences.

Due to the subject – the competence of the independent specialized anti-corruption courts is limited not only by categories of offence, but also by the professional post occupied by the accused. In the Philippines this court considers only cases concerning high officials. Though there are different approaches in other countries.

Specialized Anti-corruption Court in Ukraine

In Ukraine implementation of the specialized anti-corruption courts or independent judges was a recommendation given by The Organization for Economic Co-operation and Development (OECD) as a conclusion from analysis of anti-corruption reforms in the country. Moreover, establishment of the specialized anti-corruption court via transparent and just selection procedure, involving experts with international experience is one of the requirements for the tranche of financial assistance of the International Monetary Fund.

General Principles of Establishment

According to the Law of Ukraine “On the Judiciary and Status of Judges” of 2 June 2016 the Supreme Anti-corruption Court should be established within the court system of Ukraine. In the explanatory note of the law it was explained that this idea was based on successful practices by European countries and necessity to rapidly and quickly consider cases within the court’s jurisdiction. This court has to serve as a court of the first instance in the cases assigned by the procedural law and to teach and summarize judicial practice in the correspondent categories of offence. The verdicts of the Supreme Anti-corruption Court can be appealed in the Criminal Court of Cassation of the Supreme Court.

Due to this law the Supreme Anti-corruption Court has to be established over a period of 12 months from the date of entry into legal force of a separate law defining special requirements to the judges of this court. Therefore, before the Supreme Anti-corruption Court becomes operational, the selection procedure of the judges and the competence of the court under the Criminal Procedure Code should be defined.

Development Procedure

According to the applicable Law of Ukraine “On the Judiciary and Status of Judges” the position of the judge can be held by a person:

  • Fulfilling the general requirements (Ukrainian citizen; age between 30 and 60 years; with the university degree of law; work experience in the sphere of law is not less than 5 years; competent and respectable; have command of the official language);
  • Who has passed qualification-based selection;
  • Fulfilling all the other requirements according to the law.

The basic criteria of the selection process should be candidates’ virtue, professional competence and independence, it is counterproductive to determine too strict formal requirements to the working experience of a candidate, the above requirements list should be specified, then.

At the moment the Article 81 of the Law of Ukraine “On the Judiciary and Status of Judges” determines a special procedure of appointment for judges of specialized supreme courts and the Supreme Court. According to the article the High Qualification Commission of Judges of Ukraine holds a qualification-based selection. Due to the results of the selection the High Qualification Commission of Judges has to send a recommendation about appointment of a candidate for a position of a judge to the High Council of Justice. After that the High Council of Justice has to submit a motion to the President of Ukraine to appoint a candidate on the position in the correspondent court.

The qualification-based selection contains the following stages:

  • Examination consisting of a written part and a hypothetical case. The procedures and principles of examination should be approved by the High Qualification Commission of Judges.
  • Inspection of candidates’ profiles. For the purpose to create a profile the High Qualification Commission of Judges can conclude to hold other kinds of examination or forms to check the candidates’ competency and eligibility (for example, general skills testing, polygraph testing etc.).
  • Interviewing

At the same time the Public Council for Integrity has to verify the eligibility of candidates according to the criteria of professional conduct and integrity and informs the High Qualification Commission of Judges about the results.

As far as the basic criteria for the Supreme Anti-corruption Court establishment is the independence of its activities, the selection and appointment procedure has to fully satisfy these requirements and help to build absolute public confidence in the establishment and future work of this court. In order to guarantee these conditions and hold to the principle of independence from the government, it is unacceptable to involve the government institutions into the selection procedure of judges.

To keep one single system of appointing judges, the above formal procedure has to be strictly followed. Though taking into consideration practices of European countries and keeping in mind the purpose of strict examination of the judges’ integrity, it is important to provide a mechanism of involving experts empowered to exercise the decisive vote, who possess international experience and recommendations, into the selection process of judges. There are several possible ways to involve such experts; they should be a subject of further discussion to determine the best model. But participation of people who are independent of the government and judiciary in the process of selecting judges is the crucial component of providing the judges with public confidence in in their integrity and impartiality of legal institutions.

While it is impossible to fundamentally change the procedure laid down in the law, the competence of the High Qualification Commission of Judges and High Council of Justice should be limited to the power to reject the recommendations due to some strictly defined reasons.

Jurisdiction of the Anti-corruption Court of Ukraine

As far as the National Anti-corruption Bureau of Ukraine (NABU) has an exclusive jurisdiction concerning the cases of political or serious corruption, it is reasonable to determine the competence of the Supreme Anti-corruption Court taking into consideration these provisions.

At the same time with the aim to provide working capacity of the court and effective task execution within the criminal investigation, it is reasonable not to take all the the cases investigated by the NABU before the Court (precariously, the cases of offences of deputies of a regional council or a department manager of a prosecutor’s office should be considered in the Supreme Anti-corruption Court).

It seems that the most appropriate model is to hold the jurisdiction of the Supreme Anti-corruption Court within the cases of political corruption investigated by NABU; the list of cases under the court’s jurisdiction should be strictly defined due to both the crime subject and extent, i.e. the sum, or a price of an item, of the illegal enrichment.

The exclusive competence to bring the case before the Supreme Anti-corruption Court should be granted to public prosecutors of the Special Anti-Corruption Public Prosecutor Office; it can become an additional guarantee to the exclusive competence of the specialized anti-corruption bodies in such cases and exclude possible competence disputes.

It is also important to provide the position of investigative judge empowered not only to serve as an investigative judge of the court of the first instance, but also to consider requests for secret (operational) investigative activities in criminal cases of corresponding categories. For this purpose it is reasonable to create a separate chamber of investigative judges.

Providing an independent court of appeal for the specialized anti-corruption court is a very important aspect. It is reasonable to establish an independent Anti-corruption Chamber of the Criminal Court of Cassation of the Supreme Court. To ensure cohesion selection of judges for this chamber should follow the same pattern as for the Supreme Anti-corruption Court. As the judges selection process for the Supreme Court may be already over at that moment and also as according to the law the number of its judges can not exceed 200) it is vital to secure additional positions for the judges in this chamber in course of the legislation process.

Though the Constitution of Ukraine does not directly demand a cassation instance in all the forms of legislation, in order to keep the principle of equal application of legal standards, it makes sense to determine that the Great Chamber of the Supreme Court of Ukraine should become the cassation instance for the verdicts of the Supreme Anti-corruption Court.

Development of the anti-corruption courts system

At the same time establishment of a single specialized anti-corruption court is rather an ineffective way to lead fight corruption at the stage of criminal court proceedings. It is likely to become a temporary solution for the transition period (let’s say 3 years) after which implementation there should be established the anti-corruption courts of the first instance (for example where NABU’s regional offices are located) following the principle of specialization; their jurisdiction has to cover all the corruption offences which fall under the competence of NABU and the State Bureau of Investigation. The Supreme Anti-corruption Court should become an appeal instance for such courts while the Anti-corruption Chamber of the Criminal Court of Cassation of the Supreme Court should become the cassation instance.

To build this system, the selection procedure of judges and the establishment of the courts have to be determined at the same time as the establishment procedure of the Supreme Anti-corruption Court, however according to the Constitution, such bill has to be submitted to the parliament by the President of Ukraine.

[1] Country name and place in the world rating created by Transparency International according to the results of the Corruption Perception Index (CPI) in 2016 and in the year when a anti-corruption court was established.