The Verkhovna Rada on July 12 passed amendments to the anti-corruption court law according to which all ongoing cases of the National Anti-Corruption Bureau of Ukraine will be transferred to the yet-to-be-created anti-corruption court.
A total of 231 lawmakers voted for the amendments. Most of the Opposition Bloc, Vidrodzhennya and Radical Party factions did not vote for them.
In June the Rada passed a law on the anti-corruption court and inserted amendments according to which appeals against verdicts in graft cases sent to trial before the anti-corruption court’s creation will be considered by ordinary courts, not the High Anti-Corruption Court’s appeal chamber.
Critics said that the amendment on appeals effectively gave amnesty to suspects in existing top-level graft cases. The International Monetary Fund called on the Rada to change the law to allow the anti-corruption court’s appeal chamber to hear appeals in ongoing graft cases.
On July 12, the Rada apparently corrected the mistake, but it will be entirely clear only when the final text of the amendments is published, Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, said on Facebook.
He said initially that the pro-presidential Bloc of Petro Poroshenko faction in parliament had tried to insert an amendment that allows the transfer of all NABU cases to the anti-corruption court before its creation but bans it after that, effectively deceiving Ukraine’s Western partners. Serhiy Olekseyev, a deputy head of the legal policy and justice committee, denied the accusations.
The authorities may also use another trick: old corrupt courts may intentionally pass verdicts in top-level corruption cases before the anti-corruption court is created, Vitaly Tytych, a member of the Public Integrity Council, told the Kyiv Post. In that case, the deadline for appeals will expire, and it will be impossible to convict such suspects, he added.
According to the law, at least three members of the six-member Council of International Experts, a foreign advisory body, can call a joint meeting of the High Qualification Commission and the Council of International Experts to decide whether to veto a candidate for the anti-graft court if there are doubts about his or her professional integrity, source of wealth, or skills.
Then the candidate must be approved by a majority of the joint meeting, and at least three international experts have to vote for him or her.
Meanwhile, Tytych and Roman Kuybida – members of the Public Integrity Council, the judiciary’s civil-society watchdog believe that the High Qualification Commission will be able to choose exclusively “bad” and government-controlled candidates in an arbitrary way when it assigns scores. As a result, there will be no good and independent candidates to choose from, and foreigners’ veto powers will not matter, Tytych said.
Moreover, six foreign representatives will not have enough time and resources to assess candidates’ background within the 30-day deadline after scores are assigned, Tytych argued. By comparison, the Public Integrity Council has 17 members and had more time to evaluate candidates during the Supreme Court competition.
Tytych also said that, under the law, foreign experts would not be able to assess the wealth of those of the candidates’ relatives who do not live with them. In contrast, the Public Integrity Council did have such authority during the Supreme Court competition.
Poroshenko’s supporters, including the law’s co-author Giorgi Vashadze, reject this view, arguing that foreign partners will make sure that only good candidates would be chosen.
Another loophole in the law is that it does not solve the problem of the High Qualification Commission’s arbitrary and subjective assessment methodology, according to the Public Integrity Council. The commission denies the arbitrariness of its methodology.
During the Supreme Court competition, 210 scores were assigned for anonymous tests, and the High Qualification Commission could assign 790 points out of 1,000 points without giving any explicit reasons. To make the competition’s criteria objective, 750 points should be assigned for anonymous legal knowledge tests and practical tests, Tytych said.
The law has also been criticized by lawyers and anti-corruption activists because it is still not clear from its text which foreign organizations will select representatives for the Council of International Experts. There is a risk that some of the international experts will be biased in favor of the Ukrainian authorities, which may allow top officials to create a puppet court, said Kuybida, a view echoed by Daria Kaleniuk, the executive director of the Anti-Corruption Action Center.
Meanwhile, representatives of the International Monetary Fund, Ukraine’s main donor, will not be able to take part in the selection of anti-corruption court judges under the law on the court, according to Ukraine’s Foreign Ministry.
Under the law, only Ukrainian citizens and foreigners who have been judges or prosecutors abroad in corruption cases for at least five years can be nominated to the Council of International Experts. This limits the nominees mostly to foreigners.
Tytych criticized the decision to effectively prevent the nomination of Ukrainians by foreign organizations and exclude Ukraine’s Public Integrity Council from the competition. He said that, compared to local independent experts, foreigners often know less about Ukraine and will not be able to properly assess the candidates’ backgrounds without Ukrainians’ help.
Another critique of the law is that all second appeals against old and new NABU cases — called cassation in Ukraine — will be considered by the discredited Supreme Court. Kuybida and Tytych told the Kyiv Post this would allow the authorities to block corruption cases. The way to solve this problem would be to create a special anti-corruption chamber recruited under transparent rules at the Supreme Court, Kuybida said.