The European Commission for Democracy through Law, better known as the Venice Commission, on Oct. 9 rejected President Petro Poroshenko’s idea of creating an anti-corruption chamber within Ukraine’s existing court system.
Instead, the commission supported legislation to create independent anti-corruption courts, a measure sponsored by opposition lawmakers and supported by Ukraine’s civil society as an essential step in bringing long-overdue justice to Ukrainians.
The commission said, in its official opinion, that “corruption is one of Ukraine’s major problems, and parts of the judiciary itself have for many years been considered as weak, politicized and corrupt.”
Further: “The ongoing reform of the judiciary, which includes vetting of all judges, is a long-term process and will, according to estimates, not be completed for four or five years. Given the high expectations by civil society after the Revolution of Dignity (EuroMaidan Revolution that deposed President Viktor Yanukovych on Feb. 22, 2014), following the establishment in 2016 of specialized law-enforcement bodies competent for grand corruption cases (the National Anti-Corruption Bureau of Ukraine and the Special Anti-Corruption Prosecutor’s Office), and noting the complete absence of convictions in such cases, international organizations, including the European Union and foreign donors, have repeatedly called on Ukraine to set up a High Anti-Corruption Court.”
As the content of the Venice Commission decision started to become known ahead of its official release, Poroshenko on Oct. 4 seemingly reversed course and announced he is dropping his long-standing opposition to anti-corruption courts.
Poroshenko said he would create a working group to find a compromise between the government and the opposition on anti-corruption courts. However, Poroshenko’s critics are skeptical of his statement, seeing it as another ploy and delay tactic.
Anti-corruption activists praised the Venice Commission’s decision as a victory for Ukraine’s civil society, but said Poroshenko still had a lot of opportunities to block the anti-corruption court’s creation.
“The president’s main strategy will be to stall for time,” Anastasia Krasnosilska, an expert at the Anti-Corruption Action Center, told the Kyiv Post. “He’s already outlined this strategy by proposing the creation of a working group.”
The Presidential Administration may also sabotage the process by giving foreign institutions and people they nominate only an advisory role, Krasnosilska said.
Moreover, Poroshenko may insist that appeals filed against anti-corruption courts be considered by the criminal law panel of the existing Supreme Court, she added. This panel has already been recruited through a highly controversial and dubious procedure without foreigners’ participation.
On Sept. 29, the High Council of Justice appointed 25 discredited judges deemed corrupt or dishonest by a civic watchdog to the Supreme Court.
The creation of an anti-corruption court will be among the key demands of a rally that opposition parties plan for Oct. 17 in Kyiv.
The commission said that legislation on an anti-corruption court should be based on bill No. 6011, which was submitted by opposition lawmakers Yegor Sobolev, Sergii Leshchenko and others in February, and urged Poroshenko to submit legislation similar to the opposition bill. The opposition bill was included in the agenda of the autumn session of the Verkhovna Rada on Oct. 3.
“Many of the provisions of the draft law on anti-corruption courts (draft law No. 6011) provide a good basis for the establishment of the High Anti-Corruption Court in line with Council of Europe and Venice Commission standards,” the commission said. “That said, several recommendations should be taken into account, in particular, to reduce the risk that the law could be considered unconstitutional.”
The bill envisages recruiting a special anti-corruption court for the NABU and an appeal anti-corruption panel at the Supreme Court. According to the legislation, anti-corruption judges will be appointed through an open and transparent competition, with the participation of civil society and representatives from Western countries. Anti-corruption judges would have higher wages and security guards to ensure their independence and safety.
The commission also said that “the key components of the current draft should be maintained, namely the establishment of an independent High Anti-Corruption Court and an appeal instance, whose judges would be of impeccable reputation, adequately protected and who would be selected on a competitive basis in a transparent manner.”
“Temporarily, international organizations and donors active in providing support for anti-corruption programs in Ukraine should be given a crucial role in the body competent for selecting specialized anti-corruption judges, similar to the role envisaged for them in draft law No. 6011,” the commission said.
The opposition bill has been lambasted by Poroshenko and his allies. In March, the presidentially controlled High Council of Justice claimed that the bill contradicted the constitutional ban on “special and extraordinary courts.”
The Venice Commission argued that the constitutional ban did not apply to the anti-corruption court “because it does not jeopardize the unity of the judiciary.”
“However, deviations from the general rules should be limited to what is necessary for the anti-corruption courts to work effectively, and care must be taken to avoid the possible impression that anti-corruption judges are a different or privileged class of judges,” the commission argued. “The level of remuneration for judges of the High Anti-Corruption Court should be reconsidered; it should be commensurate with the increased demands of their position, but should not differ too much from conventional judges’ remuneration.”
Under the opposition bill, the Verkhovna Rada, the president and the cabinet will each delegate three commission members to appoint anti-corruption judges.
The Venice Commission said, however, that members of the body selecting anti-corruption judges should not be designated by political figures.
“Additional safeguards should be introduced to ensure that the procedure for the appointment of judges is independent of the executive and legislative powers,” the commission said. “This could be achieved, for instance, by giving a non-political agency such as the High Qualification Commission of Judges the right to nominate members to that body – subject to the role of international donors as discussed in the opinion.”
Meanwhile, the High Qualification Commission has itself been criticized for being controlled by Poroshenko and the People’s Front party – an accusation that it denies. The Public Integrity Council, a civil society watchdog, said on Oct. 3 that it had “grounds to assume that the (Supreme Court) competition was rigged” by the High Qualification Commission and the High Council of Justice to appoint politically loyal candidates.
The Venice Commission also harshly criticized bill No. 6529 on anti-corruption chambers, which has been pushed for by Poroshenko and is sponsored by Poroshenko Bloc lawmaker Serhiy Alexeyev.
“The approach of draft law No. 6529 deviates from the international obligations of Ukraine to set up a specialized anti-corruption court, and from the original idea to give a response to the inefficient adjudication of cases investigated and prosecuted by NABU and the Special Anti-Corruption Prosecutor’s Office, i.e. of high-level corruption cases,” the commission said.
Alexeyev’s bill stipulates appointing anti-corruption judges at lower courts through a competition process that has been criticized by non-governmental organizations as non-transparent. Until such competitions are held, incumbent judges of Ukraine’s discredited and corrupt judiciary will choose anti-corruption judges from among themselves – a practice that may continue for a long period of time.
At appeal courts, there will be no competitions at all, with anti-corruption judges chosen by incumbent judges, according to the legislation.
In addition, Alexeyev’s bill does not stipulate that anti-graft judges should have higher wages or have security guards allocated to them.