The International Monetary Fund on Jan. 11 criticized a bill submitted by President Petro Poroshenko to parliament in December on the creation of a High Anti-Corruption Court, or HACC, and urged him to amend it.
“We have serious concerns about the draft law that was submitted to parliament on Dec. 22, as several provisions are not consistent with the authorities’ commitments under Ukraine’s IMF-supported program and the recommendations of the Venice Commission of the Council of Europe,” Ron van Rooden, the IMF’s mission chief for Ukraine, said in a letter to Poroshenko’s Chief of Staff Ihor Rainin, referring to an Oct. 9 recommendation by the European Commission for Democracy through Law.
“Several provisions in the draft law related to the selection process, the eligibility requirements, and security are not conducive to the independence of the HACC and the transparent appointment of competent and trustworthy anti-corruption judges,” read the letter, which was obtained by the Yevropeiska Pravda newspaper and published on Jan. 15.
Responding to the criticism, the Presidential Administration claimed on Jan. 15 that Poroshenko’s bill complied with the Ukrainian Constitution and the Venice Commission’s recommendations.
“Today the bill is in the Verkhovna Rada, that is why all discussions about any legal norms should take place within the framework of (Ukrainian) law in the Ukrainian parliament,” the administration said, as cited by the Ukrainska Pravda online newspaper.
The World Bank has also lambasted Poroshenko’s bill and urged him to amend it, according to a Jan. 15 letter sent to Rainin and Verkhovna Rada Speaker Andriy Parubiy by Satu Kahkonen, a top World Bank official. The letter was published by Yevropeiska Pravda on Jan. 16.
Foreign experts
The IMF said that the Public Council of International Experts should have a central role in approving the appointment of HACC judges, rather than just an advisory one. The Public Council of International Experts is expected to consist of independent experts nominated by Ukraine’s foreign partners and donors, and will play only an advisory role according to Poroshenko’s bill.
“The draft law allows the High Qualification Commission of Judges to override decisions of the Public Council of International Experts over ineligible candidates for HACC judges,” the IMF said. “However, this would severely undermine the credibility of the court right from the start.”
Under the legislation, judges of the anti-corruption court will be nominated by the High Qualification Commission and appointed by the High Council of Justice. However, both bodies have been discredited and accused of appointing corrupt judges and political loyalists to the Supreme Court and other courts.
Poroshenko’s bill stipulates that the 16-member High Qualification Commission can with a two-thirds majority (11 votes) override a veto by the Council of International Experts on candidates for the anti-corruption court.
Public trust in the High Qualification Commission and the High Council of Justice is low. As many as 30 discredited judges deemed corrupt or dishonest by the Public Integrity Council, a civil society watchdog, were nominated for the Supreme Court by the High Qualification Commission in July, and 29 of them were approved by the High Council of Justice in September to December. Poroshenko has so far appointed 27 of the discredited judges to the Supreme Court.
The High Qualification Commission and the High Council of Justice have also been criticized for being controlled by Poroshenko and the People’s Front party — an accusation that the bodies deny.
In contrast, Roman Kuybida, a member of the Public Integrity Council, told the Kyiv Post he believes people nominated by foreign partners and donors should form a majority in a special chamber created by the High Qualification Commission, and this chamber should be empowered to appoint HACC judges.
The IMF said that the participation of the Public Integrity Council in the selection of HACC judges should be maintained, while under Poroshenko’s bill, the Public Integrity Council, which has shown its independence from the authorities, will be completely excluded from the process for selecting judges for the anti-corruption court.
Eligibility criteria
Anti-corruption groups also argued that the conditions for becoming a judge of the anti-corruption court are so strict that it will be almost impossible to find candidates meeting the demands, and the selection could drag on for years.
“The need for competent HACC judges should not lead to the imposition of unrealistic eligibility requirements,” the IMF said. “…The requirement under the draft law for candidates to also have considerable anti-corruption experience in foreign jurisdiction bodies or international court institutions is too restrictive and severely limits the pool of candidates. The prohibition against officials who previously served in law enforcement or prosecutorial agencies in the last ten years and the use of polygraphs also appear excessive and should be removed.”
Under Poroshenko’s bill, only a person who is over 35 years old and has considerable anti-corruption or legal experience at international organizations can become a judge of the anti-corruption court.
Only a candidate who has worked as a judge for no less than five years, a legal scholar for at least seven years or a lawyer for no less than seven years can apply.
The legislation also bans candidates who have worked over the last 10 years at the prosecution service, the police, the State Security Service, the customs service, the National Anti-Corruption Bureau of Ukraine, the National Agency for Preventing Corruption, and many other law enforcement agencies.
Moreover, the bill bans candidates who have held political offices or have been lawmakers over the last 10 years, were party officials or had contracts with parties over the last five years, and those who were members of the state procurement commission before the ProZorro electronic procurement system was introduced in 2015.
Jurisdiction
Another problem with Poroshenko’s bill is that would allow the National Police, the Security Service of Ukraine and the State Fiscal Service to bury the court with minor corruption and drug and arms trafficking cases, which will make it difficult for the court to handle top-level corruption. Moreover, the HACC will not be able to consider some of the National Anti-Corruption Bureau of Ukraine’s cases, including money laundering ones and ones related to electronic asset declarations.
“The jurisdiction of the HACC should align with the investigative jurisdiction of the National Anti-Corruption Bureau of Ukraine and the Special Anti-Corruption Prosecutor’s Office,” the IMF wrote. “As a critical component of the new anti-corruption infrastructure in Ukraine, it is important that the HACC’s efforts are focused solely on corruption-related cases.”
The IMF said that requiring the anti-corruption court to try non-NABU cases would “clog up its docket and divert limited resources from its core judicial mandate.”
“In addition, clear rules should be established in case of conflict of jurisdiction between the HACC and other courts,” the IMF added. “All corruption-related cases involving senior officials should be adjudicated by the HACC and the proposed exemptions of HACC jurisdiction should be removed.”
Other issues
The HACC should be provided with an independent security division, under its control, and its headquarters should be located in Kyiv, in a separate and suitable building, the IMF said.
Poroshenko’s bill fails to solve the problem of protecting anti-corruption judges and their families, said Rouslan Riaboshapka, an ex-top official of the National Agency for Preventing Corruption.
Another way in which the anti-corruption court will be sabotaged is through the discredited Supreme Court, which will be the appeals instance for the HACC, Kuybida said.
An opposition bill submitted last February envisaged recruiting independent anti-corruption judges for a special chamber at the Supreme Court. Under Poroshenko’s bill, incumbent discredited judges of the Supreme Court chosen through a dubious procedure would consider appeals against the HACC.
Yet another complaint against the bill is that the court’s creation may take a very long time. The court should be created within a year after the law is signed, according to the legislation.
Lawmaker Mustafa Nayyem said on Facebook that the bill is likely to be signed into law only in March 2018, and the court is likely to be created only after the 2019 presidential election.
