President Petro Poroshenko is being asked to submit his draft law for the creation of an anti-corruption court in a matter of weeks.
After opposing such a court in favor of an anti-corruption chamber within the existing discredited court system, Poroshenko was forced into a policy reversal because of an opinion by the European Commission for Democracy through Law, better known as the Council of Europe’s Venice Commission.
At the same time, the president signaled he will not move fast.
Poroshenko has already outlined tactics to delay establishment of an independent anti-corruption court for at least 4–5 months while simultaneously shifting responsibility to parliament and even the Venice Commission.
Apart from that, Poroshenko has also hinted at limiting the independence and effectiveness of any such anti-corruption court.
Here’s how the president will stall and manipulate the creation of this much-needed institution:
1. Create working group in parliament
Instead of submitting his draft law directly, the president called for parliament to create an inter-faction working group, which may spend years in fruitless discussion. The same approach is advocated by the president’s official representative in parliament, Iryna Lutsenko, and head of the People’s Front faction Maksym Byrbak. The two blocs have 216 seats in the 422-seat legislature
All other draft laws on judicial reform were submitted by the president without the creation of working groups in the parliament. Moreover, draft laws supported by Poroshenko were adopted by parliament in a lightning-fast manner. For instance, the law on judicial reform was submitted on May 30, 2016 and adopted by parliament already on June 2, 2016. Also, the so-called law on reintegration of the war-torn Donbas was submitted on Oct. 4 of this year and adopted two days later.
It is obvious that creation of an anti-corruption court is at the bottom of Poroshenko’s priorities and he is not willing to invest effort into finding support.
2. Fail to withdraw draft law 6011 as a pretext to not submit new law
For many months, the Presidential Administration has been trying to excuse the absence of a proposal on the anti-corruption court with the existence of draft law #6011, also involving an anti-corruption court, and submitted by a group of members of parliament. Formally, a new draft law may not be registered if a draft law exists on the same issue. Both the president and parliament have ignored this rule on a number of other occasions, most recently involving the submission of a presidential draft law #7230 on abolishing parliamentary immunity while disregarding registered draft law #6773, from 158 MPs, on the same issue.
Withdrawal of draft law #6011 requires not only the initiative of its authors, but also the consent of parliament. Authors of the draft law #6011 have already submitted a formal request to withdraw the bill, but the ruling parliamentary factions may fail to support.
In such an event, Poroshenko may even refuse to discuss his legal initiative on an anti-corruption court until the spring 2018 session of parliament, when bill #6011 may be withdrawn by authors without prior consent from the parliament. However, formally it will once again be the parliament that does not allow the president to submit a new bill.
3. Request another opinion from the Venice Commission
Lutsenko, the president’s representative in parliament and wife of Prosecutor General Iryna Lutsenko, announced her plan to send the president’s draft law on the anti-corruption court to the Venice Commission for reconsideration. It’s another stalling tactic. Adoption of opinions normally takes up to three months by the commission. The legal justification for such a move is even weaker. Unless the president intends to violate the European standards of judicial independence and existing recommendations of the Venice Commission, a new opinion is not required. Existing guidance of the commission is precise enough.
4. Initiate creation of regional anti-corruption courts instead of 1 court with national jurisdiction
While the Venice Commission clearly recommended Ukraine to create on specialized anti-corruption court, the Presidential Administration may offer regional anti-corruption courts as first instance judicial institutions. This approach has already been voiced by the Prosecutor General Yuriy Lutsenko.
However, such an approach directly contradicts recommendations of the Venice Commission.
The Commission has also analyzed the draft law #6529 on anticorruption judicial chambers on local and regional level and has made a clear conclusion: rationale and justification of such a far-reaching measure remains unclear. The Commission has underlined, that “ the approach of draft law No. 6529 deviates from the international obligations of Ukraine to set up a specialised anti-corruption court and from the original idea to give a response to the inefficient adjudication of cases investigated and prosecuted by NABU and SAPO, i. e. of high-level corruption cases”.
Why shall the President’s Adminsitration want to establish regional anticorruption courts? Creation of 27 regional anticorruption courts with at least 162 judges (at least 6 for each court) obviously takes much longer, than creation of one court with 70 judges. In the meantime, cases on high profile corruption will remain blocked or will be undermined in existing distrusted local courts.
5. Create an appellate anti-corruption court among Supreme Court judges
Since the political class is bound to create an independent first instance, or lower, anti-corruption court, they may attempt to retain control over anti-corruption justice in a different way: Avoid selection of appellate anti-corruption judges by an independent competition with participation of international donors. To accomplish this strategy, the Presidential Administration may offer to create an appellate anti-corruption chamber in the Supreme Court from recently selected judges — including those with poor human rights records, experience in political persecutions and questionable assets.
However, the Venice Commission clearly recommended that Ukraine select first instance and appellate anti-corruption judges with the participation of international donors.
6. Involve international donors in honorary or advisory roles only
A key recommendation of the Venice Commission: “temporarily, international organizations and donors active in providing support for anti-corruption programs in Ukraine should be given a crucial role in the body which is competent for selecting specialized anti-corruption judges, similar to the role envisaged for them in draft law No. 6011.”
In this regard, the commission offered Ukraine two options. The first option is to create a special body for the selection of anti-corruption judges — half nominated by the High Qualification Commission of Judges and the other half by international donors. The second model envisages the role of international donors’ nominees as associated members of the High Qualification Commission of Judges, specifically for the selection of anti-corruption judges.
In claiming his support for the creation of an anti-corruption court a few day before the opinion of the Venice Commission was released, Poroshenko said that “Ukrainians are able to form such a court,” a clear statement that international participation is not welcome.
To pacify international donors, the Presidential Administration may offer them roles as observers or honorary consultants as long as they are not allowed to make any decisions. Any advisory recommendation is easily overruled, manipulated or ignored. In the selection of the new Supreme Court, for example, 60 percent of the opinions of the advisory Public Integrity Council were ignored.
The Presidential Administration may also adopt more sophisticated techniques to prevent international participation, such as adoption of unrealistic rules or timelines. Poroshenko may even allow the High Qualification Commission of Judges or even the State Security Service to vet international nominees and block their appointment without any justification.
7. Give anti-corruption court jurisdiction over all corruption crimes
According to the Venice Commission’s opinion, jurisdiction of the High Anti-Corruption Court should comply with the jurisdiction of the National Anti-Corruption Bureau of Ukraine.
However, the Presidential Admiinistration may assign the court jurisdiction over all corurption-related crimes and even over cases of administrative misconduct.
According to the official statistics of the Supreme Court, 4,444 corruption crimes and corruption-related administrative misconduct were filed to the courts in the first half of 2017 alone. Among them are only 25 crimes involving high-profile corruption. With a broad jurisdiction, the anti-corruption court will not be able to focus on the most serious and high-profile cases, which have been blocked by the unreformed courts — cerating the need for a specialized, independent anti-corruption court.
Anastasia Krasnosilska is project manager for the Anti-Corruption Action Center in Ukraine.
