One of the key post-EuroMaidan Revolution changes in Ukraine was reforming the country’s judicial system.
The long-overdue judicial reform officially launched on Sept. 30, when constitutional amendments and new law on courts and judges passed by lawmakers in June 2016 came into effect.
Among other things, this reform is set to establish specialized anti-corruption courts.
Such courts will be the final element to complete a set of newly created specialized anti-graft agencies. It will also mean faster hearings of anti-corruption cases once they go to court.
The anti-corruption courts should have exclusive jurisdiction over the cases investigated by the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-corruption Prosecutor’s Office (SAPO). The creation of the courts will be a milestone in the efforts of the Ukrainian government to fight corruption.
Many experts, political and opinion leaders, as well as Ukraine’s foreign partners have voiced their support for the creation of anti-corruption courts in Ukraine.
In March, President Petro Poroshenko, Prime Minister Volodymyr Groysman and other Ukrainian officials sent a memo to the International Monetary Fund on economic and financial policy. In this memo, Ukraine vowed to submit a draft law on the creation of anti-corruption courts to the parliament by mid-April, and adopt it by mid-June.
However, the government hasn’t yet submitted the draft law, while the draft law on anti-corruption courts filed by a group of reformist lawmakers in February has never made it to the floor of the session hall for debate.
The European Union’s Commissioner for European Neighborhood Policy & Enlargement Negotiations Johannes Hahn during his trip to Ukraine on June 1 reminded the government yet again of the need to have anti-corruption courts in place as soon as possible.
To help the Ukrainian government develop a concept for the anti-corruption courts, early this year international donors in Ukraine and civil society experts established an informal working group.
Together they developed the basic principles for establishing the High Anti-Corruption Court in Ukraine. They passed on these principles to various government agencies, working groups and parliamentary committees responsible for the development and implementation of judicial reform in Ukraine.
Below are some of the basic principles for establishing the High Anti-Corruption Court:
- The judges of the High Anti-Corruption Court should be selected in an open competition, based upon fair, transparent, and merit-based criteria. Necessary guarantees should be in place to avoid any undue influence on the selection process and ensure respect for judicial independence.
- The High Qualifications Commission of Judges should set up a special panel responsible for the selection of the court’s judges. The special panel should include a majority of members nominated by international donors active in providing support for anti-corruption programs in Ukraine.
- Decisions of the special panel should be binding on the High Qualifications Commission of Judges, which may not recommend candidates who were not vetted and approved by the special panel.
- A Public Integrity Council should verify the integrity and professional ethics of judicial candidates.
- Specific timeframes for selecting the High Anti-Corruption Court judges should be established by law to avoid abuses and delays.
- Formal qualification requirements for candidates should be developed in a way that allows the participation of the widest range of judges, lawyers and academics in the competition.
- To avoid the risk of undue influence during consideration of high-profile corruption cases, the High Anti-Corruption Court judges should have an increased salary, as well as additional security measures, including but not limited to physical protection of judges and members of their families.
- The High Anti-Corruption Court’s verdicts may be appealed against in the specialized appellate chamber; cassation reviews should be conducted by the Criminal Cassation Court of the Supreme Court.
I believe that the cornerstone principle of the High Anti-Corruption Court should be an independent and thorough process for selecting judges.
The process of their selection should engage members of civil society organizations, as well as representatives from Ukraine’s foreign partners.
Ukraine should start this process as soon as practically possible, so as to launch the anti-corruption courts in the nearest future. Ukraine’s foreign partners are ready to provide assistance with drafting the law on the High Anti-Corruption Court or in making amendments to the existing draft that has already been registered in the parliament.
It is crucial that the law incorporates the basic principles that have been developed by the working group. The absence of specialized anti-corruption courts jeopardizes the work of two newly created agencies – NABU and SAPO. Of the dozens of cases that the NABU has passed on to courts since early 2016, only a handful have been reviewed and closed.
Slovakia, Bulgaria, Croatia and other countries have specialized anti-corruption courts. A separate review of anti-corruption cases in specialized courts ensures there is effectiveness and higher expertise in the process.
Such expertise shall be achieved by exclusiveness – judges will review only anti-corruption cases. Their expertise will also be increased by training and professional development activities.
Moreover, such exclusiveness will unload the judges’ dockets of other types of cases – hence the proceedings in the new anti-corruption courts will run smoothly and quickly.
Eka Tkeshelashvili is the head of the European Union Anti-Corruption Initiative in Ukraine.
