Having studied the provisions of draft law #7440, the chapter of the global network has arrived at the conclusion that some of its provisions do not comply with the recommendations of the Venice Commission of October 6, 2017.
Firstly, Article 8, part 4 provides for advisory role of the Public Council of international experts exclusively. Its negative conclusion on a certain candidate for the position of a judge can be ignored by the High Qualification Commission of Judges of Ukraine – by 11 out of 16 votes of HQCJ members. In contrast, the Venice Commission recommended to provide international organizations and donors with a decisive role in the process of selection of judges. Thus, the transparency of such selection appears questionable.
Secondly, the exclusive jurisdiction of the High Anti-Corruption Court does not include all crimes under investigative jurisdiction of the NABU. At the same time it is extended to an entire range of crimes under investigative jurisdiction of the National Police of Ukraine and State Investigation Bureau. The Venice Commission states clearly in its opinion that the jurisdiction of the court has to correspond to the investigative jurisdiction of the NABU and the SAP. It can keep the High Anti-Corruption Court occupied with too many cases.
Thirdly, Article 7, part 2 of the draft law defines unrealistically high qualification requirements to the candidates for the positions of judges of the High Anti-Corruption Court. For instance, besides work experience as a judge or defense attorney and academic work, the candidate must have significant experience of professional activity in the area of anti-corruption in international intergovernmental organizations or international judicial institutions, possess knowledge and practical skills of application of modern international anti-corruption standards and best international practices in the area of anti-corruption, as well as the practices of the European Court of Human Rights. These requirements narrow down the number of potential candidates to the High Anti-Corruption Court significantly, which can be expected to impede the proper selection process.
Thus, there is good reason to doubt that if draft Law of Ukraine #7440 “On the High Anti-Corruption Court” is passed, it will provide for independent and unbiased selection of judges and proper functioning of the future High Anti-Corruption Court. TI Ukraine urges the President of Ukraine to withdraw draft law #7440 and submit an updated one, which would take into account the aforementioned recommendations of the Venice Commission.