On October 4, President Petro Poroshenko said that Ukraine did need to set up the High Anti-Corruption Court. However, he believes the draft laws that are currently in Verkhovna Rada to be PR of specific political forces and thus to have little chance of gaining the necessary number of votes, which means that it is essential to “urgently create a working group – whether in the Legal Policy and Justice committee, or under the speaker, or an inter-fractional working group – and to develop a unified project which will be able to gain the support of the entire Verkhovna Rada as soon as possible. On October 9, the Venice Commission published its conclusion on the existing draft laws, criticizing both, and invited the President to submit his own legislative initiative to the parliament.
LB.ua found out whether the work on a new draft law has started yet and what international and local experts believe the “perfect anti-corruption court” should look like.
What is the Anti-Corruption Court and Why Does Ukraine Need It?
As of May, 2017, the National Anti-Corruption Bureau had referred 65 cases to the court. Out of them, decisions had been made on only 17, 26 more were at the review stage and on 22, the courts had not even started the review procedure. “Some cases stay in courts with no progress for over a year. Among the reasons for delays: there are problems with defining the jurisdiction, it is impossible to form the panel of judges, parties of the trial fail to show up, the indictment is returned,” says the NABU press office.
Head of the NABU Artem Sytnyk believes that the only way to speed up making decisions on the cases of top-level corrupt officials is creation of a separate Anti-Corruption Court. A number of Ukrainian and international experts agree with him. For instance, among those who insist on the need for the Anti-Corruption Court is Eka Tkeshelashvili, Head of EU Anti-Corruption Initiative in Ukraine, members of GRECO (The Group of States Against Corruption), international organization Transparency International and Ukrainian experts of the Anti-Corruption Action Center and Reanimation Package of Reforms.
The creation of the Anti-Corruption Court is provisioned by the Law of Ukraine “On Judiciary and the Status of Judges” adopted in June of 2016.
The Anti-Corruption Court is also mentioned in the Memorandum with the IMF signed by President Petro Poroshenko, Prime Minister Volodymyr Groysman, Minister of Finance Oleksandr Danyliuk and Head of the NBU Valeriia Hontarieva. For instance, the memorandum says that anti-corruption courts have to start their activity by the end of March, 2018.
This year, two draft laws on the Anti-Corruption Court have been registered in the Verkhovna Rada: #6011 (submitted in February of 2017) developed by deputy speaker Oksana Syroyid (elected from Samopomich list), MPs Yehor Soboliev (Samopomich), Ivan Krulko (Batkivshchyna) and “eurooptimists” – Mustafa Naiem, Svitlana Zalishchuk and Serhii Leshchenko (all three – BPP); and draft law #6529 (registered in May) developed by BPP MP Serhii Alieksieyev.
These draft laws are dramatically different. In the first draft law #6011, the authors offer to create a separate High Anti-Corruption Court (AC) which would review the cases against toplevel corrupt officials at first instance and the Anti-Corruption Chamber in the Cassational Criminal Court of the Supreme Court which would review the decisions and rulings of the AC. The MPs envisioned both the court and the chamber to be independent from the existing courts and to be located in separate buildings.
The draft law also sets forth how the judges should be elected, what their remuneration must be (judges of the High Anti-Corruption Court – UAH 240,000, judges of the Anti-Corruption Chamber – UAH 300,800), as well as round-the-clock guards for them and their families and houses if needed. It is mentioned that there should not be over 70 judges of the Anti-Corruption Court and not over 30 judges of the Anti-Corruption Chamber of the Supreme Court. The High Anti-Corruption Court would be set up within half a year.
In his short draft law #6529, BPP MP Serhii Alieksieyev offered to open an anti-corruption chamber in existing courts instead of creating a separate body. Alieksieyev’s draft law does not even include selection of new judges. But if the chambers make up part of an existing courts of general jurisdiction, they run the risk of becoming dependent on its management.
President Petro Poroshenko and Prosecutor General Yurii Lutsenko openly supported Alieksieyev’s concept a few weeks ago. We don’t have the time to bother with creation of an entire court, they would say, let’s start with a chamber in a general court for now.
The President changed his stance the day before Venice Commission’s conclusion, which clearly states that Ukraine needs a separate Anti-Corruption Court, not a chamber.
At the same time, Venice Commission criticized both of the existing draft laws submitted to the parliament. For instance, the Commission believes that the process of selection of judges to the Anti-Corruption Court can be politicized if it follows the concept set forth in draft law #6011. The issue is with the Selection Board, which, according to the draft law, would have to be made up of 9 members, three of whom would be submitted by the President, three – by the Minister of Justice (based on candidates submitted by Ukraine’s international partners) and the other three by the Verkhovna Rada (choosing from candidates submitted by fractions). For instance, this Board would be responsible for holding a competition for the positions of judges of the Anti-Corruption Court and the Anti-Corruption Chamber (the appeal body).
The Commission suggested rejecting both submitted draft laws and invited the President to develop his own draft law.
The President’s press-secretary Sviatoslav Tseholko confirmed that the presidential draft law will be developed in the parliament.
At the same time, members of the Legal Policy and Justice Committee whom LB.ua talked to, for instance, deputy head of the Committee, Narodnyi Front MP Leonid Yemets, said that nobody in their committee has heard of the draft law yet. Other members of the committee, MPs of BPP Oleksandr Chernenko, Nataliia Novak and Nataliia Ahafonova, agree.
Experts Anastasiia Krasnosilska of Anti-Corruption Action Center and Mykhailo Zhernakov of Reanimation Package of Reforms believe that it would make most sense to take draft law #6011 as the basis and amend the points that the Presidential Administration disagrees with.
“We don’t know who and how is writing this draft law and there is no information that anyone from the civil society or the authors of draft law #6011 has been consulted. The decision on the judicial reform is made in the Presidential Administration anyway, therefore, nothing stops the President from offering his own draft law. There is a second reading to harmonize the stance of the fractions,” says Anastasiia Krasnosilska.
Is Anti-Corruption Court for Third World Countries?
During the YES forum in September, the President complained that anti-corruption courts exist only in the less developed countries. “I don’t want to wait for 1.5 years to create the anti-corruption court. And then, out of those who are here, raise your hands those whose countries have an anti-corruption court. Nobody? Maybe in France? No. Maybe in Poland or in Finland? Anywhere where the fight against corruption has proven efficient? Nowhere. They exist in Uganda, in Malaysia too I think,” said Petro Poroshenko.
In reality, in 2016, the Anti-Corruption Court (in its various modifications) was created in 20 countries across the world: Afghanistan, Bangladesh, Botswana, Bulgaria, Burunda, Cameroon, Croatia, Indonesia, Kenya, Malaysia, Nepal, Pakistan, Palestine, Philippines, Senegal, Slovakia, Uganda, Mexico (started working in 2017), Tanzania and Thailand, according to the U4 research (AntiCorruption Resource Centre).
The first Anti-Corruption Court in the world was set up in 1979 in Philippines, later in 1999 in Pakistan, in 2002 – in Indonesia and Nepal.
The models of the Anti-Corruption Court differ in all these countries. In some countries, the AC functions are performed by specialized judges, departments of courts or military courts. In others, it is a full-fledged separate body.
In Philippines, the Anti-Corruption Court (Sandiganbayan) acts as the original jurisdiction court when corruption cases are connected with top-level officials, while the cases of “petty bribe-takers” are usually reviewed in local regional courts, and Sandiganbayan performs the appeal function.
In Afghanistan, Malaysia, Indonesia and Bulgaria, Anti-Corruption Courts exist at the level of first instance and at the level of appeal. In Croatia, Slovakia, Nepal, Pakistan, Senegal, Cameroon and Burunda, Specialized Anti-Corruption Court reviews cases only at the first instance level – appeals are referred to the Supreme Court.
This last model is quite controversial. For instance, RPR expert Markiyan Halabala believes that it is exactly the Supreme Court of Slovakia (where “judges of the old system” work) that delays corruption-related proceedings reviewed by the AC.
The Specialized Criminal Court in Slovakia was created in 2004. At that moment, groups of oligarchs had a significant influence on the country’s authorities. There was a risk of bribing the judges in regular courts, which was why it seemed impossible to complete cases on top-level corrupt officials without creating a specialized court.
Specialized Criminal Court of Slovakia
At first, the AC in Slovakia handled only cases of corrupt officials, but later, under pressure from oligarchs, the Law on Creation of the Anti-Corruption Court was disputed in the Constitutional Court, says Halabala. The court concluded that the Slovak Constitution does not provide for such courts, so the authority of the court was significantly limited and organized crime was added on top of that.
“Slovakia’s story is more of an example how it should not be done. The official of the highest level who was convicted by this court was the mayor of one of the cities. Once the Specialized Prosecutor’s Office started demonstrating good results, the Slovak oligarchs started weakening it so much that the cases were actually not getting to the anti-corruption court, and then they went on to weaken the court itself,” says Halabala.
According to the recent research by Transparency International «Recent Slovak Anti-corruption Measures», the number of convictions on corruption-related cases still grew in Slovakia after the Anti-Corruption Court was created. From 2005 to 2012, the number of those declared guilty in anti-corruption cases grew by 50%, says the research.
Another expert of Reanimation Package of Reforms, head of Arbitration Chamber of Ukraine, member of Public Integrity Council Taras Shepel believes, however, that the Slovak experience is the most acceptable example for Ukraine: “From Slovak experience, I would point out such positive aspects as organization of the court’s work, providing it with a building, providing judges with security, overall they have a very interesting concept of social security for judges. The court there is located in a separate town, fenced. Journalists are allowed to attend all hearings, but this openness does not interfere with secrecy of investigation, for instance, questioning of secret witnesses.”
There are also various ideas of which body has to refer cases to the anti-corruption court. In most countries, it is an institution analogous to the Ukrainian NABU. At the same time, in Afghanistan, for instance, Prosecutor General’s Office has the right to do it as well.
It is essential to establish effective cooperation between the court and the investigative body, say the authors of the U4 research. In some countries, the Anti-Corruption Court does not have significant achievements exactly because the cases are delayed at the investigation stage or the prosecutors on the case are not qualified enough.
Besides, the experience of other countries shows that it is important to calculate the number of judges of the Anti-Corruption Court. It has to correlate with the number of corruption-related cases, they have to be not too few and not too many. Taras Shepel believes 70 judges to be quite enough for the Ukrainian High Anti-Corruption Court.
Executive Director of Transparency International Ukraine Yaroslav Yurchyshyn emphasizes that now is not yet the time to create regional anti-corruption courts, which the President spoke about.
“Even the oblast-level courts need to have 180-200 persons elected for them, not 70. 120 Supreme Court judges were being selected for over half a year, selecting 200 will take a year if not more. That is why this statement by the President looks somewhat like delaying. Judging by the experience of other countries, I can say that broadening the jurisdiction to all anti-corruption cases, that is, including local corruption, significantly reduced the effectiveness of Bulgarian and Slovak courts in comparison with Croatia,” insists Yaroslav Yurchyshyn.
The judges also shouldn’t be overloaded with work on other cases. International experience proves that AC is at its most efficient when its jurisdiction is limited to top-level corruption only. Judges of the anti-corruption court have to be carefully selected, taking into account their integrity and qualification, say the authors of the U4 research.
In some countries (Bangladesh, Kenya and Malaysia), the judges needed additional training on financial issues, accounting and combating money laundering after they were selected. We have to be aware that we may need additional financing for such training in Ukraine as well.
In Cameroon, Nepal, Palestine, Philippines and Indonesia, deadlines for case review were established to reduce the risk of delaying. In Palestine the deadlines are especially rigid: the anti-corruption court has only 10 days to review a case and the delay cannot be more than 7 days. The authors of the U4 research remark that these deadlines are too strict for fair and competent review of a case. In Malaysia, the average time it took to review one corruption case from the moment of its arrival at the court used to be 8.5 years. Thus, the state limited the review period to one year.
The “Perfect” Anti-Corruption Court
LB.ua tried to paint a picture of the perfect Anti-Corruption Court based on the conclusions of the Venice Commission and what the interviewed experts suggested – Anastasiia Krasnosilska, Markiyan Halabala, Mykhailo Zhernakov, Yaroslav Yurchyshyn and Taras Shepel.
So, the perfect Ukrainian Anti-Corruption Court means:
– It is a separate independent first instance and appeal body instead of a chamber in regular courts. The court has to be administratively independent, as well as its secretariat. The court has to have a separate building, staff, fiancing;
– AC judges have to be provided with additional security guarantees: guards for them and their family members and houses, so they would not be afraid of convicting somebody. The judges also need a higher remuneration to avoid the temptation of taking a bribe;
– The judges who end up in the court have to be unbiased. A special selection panel has to be created for this purpose. International experts must participate in this panel;
– The judges of anti-corruption courts of all instances have to be selected based on the same procedure to avoid manipulations, such as “let’s create the best first instance court and then the cases will be reviewed in the Supreme Court by unscrupulous judges”;
– The cases referred to the court have to be connected with top-level corruption exclusively, excluding minor cases that can be handled by regular courts.