Three years ago, the very establishment of an anti-corruption court in Ukraine looked quite unrealistic, while today the final stage of the judicial selections is approaching. A number of steps still to be taken to ensure the court is fully independent and operational, but this far an approach for its creation seems to make a success story.
It was February 2017 when a tiny group of the reform-minded lawmakers submitted to the Ukrainian Parliament the first ever draft law on the anti-corruption court. They did this to finally transform never-ending talks into action since President Petro Poroshenko showed no will to initiate the creation of this court on his own. For half a year the draft was lying in the table, waiting for the moment to play an instrumental role. In October 2017 it got a positive evaluation by the Council of Europe’s Venice Commission.
In February 2018 we were almost desperate: without being able to drag his feet anymore, a month before the president had submitted his own anti-corruption court draft law to the Rada. The key recommendations of the Venice Commission were ignored. The bill granted international experts with an advisory role only instead of the powers to ban questionable candidates. Simultaneously, a message about the threat to Ukraine’s sovereignty by giving more authorities to internationals was the most widely circulated by the pro-Presidential bloggers and opinion leaders at that time.
Now it is February 2019, and just a few days ago the Council of International Experts has blacklisted 42 questionable out of 113 in total candidates (including three controversial competitors who decided to step out voluntarily). Without any doubts, this invigorated public hope for justice, from which the state and its sovereignty only win.
The resistance broken was a logical consequence of hard work and persistence of all stakeholders, who contributed to its establishment.
It is important to highlight the essential role of the Venice Commission that actually made the president change his mind. Due to the International Monetary Fund’s decisive stance on the international experts’ blocking minority right the good law was finally adopted – though with the second shot only. The European Union’s leading role in nominating international experts and the US role in arranging the work of council’s secretariat, as well as the G7 political support, were essential for the effective reform implementation.
Key credits go to the Council of International Experts. Consisting of two British Sir Anthony Hooper and Lorna Harris, Canadian Ted Zarzeczny, Macedonian Mirjana Trajkovska, Danish Flemming Denker and Lithuanian Aurelijus Gutauskas, it has become the first Justice League Ukraine has ever had. Hopefully, the anti-corruption court will soon take over this status as the second, permanent one.
The key to council’s result was the application in practice of the reasonable doubt standard in the selection of judges. In the selections to the Supreme Court, the Qualification Commission of Judges body promoted dubious candidates (with unjustified assets or poor human rights record) with the excuse that these candidates’ guilt has not been proven in court. Due to such an approach, highly needed cleansing of the judicial system failed and public trust to courts remained below 16%.
On the other hand, for the International Experts Council, it was enough to have a grounded suspicion on the wealth origins or political motivation of some decisions to blacklist a candidate. This is fair: how many judges who had imprisoned activists of the EuroMaidan Revolution, which ousted President Viktor Yanukovych in 2014, were fired or faced trials? In fact, less than 15 percent. How many were put behind the bars for illicit enrichment? No one. The International Council proved that transparent selection of judges shall be not about hours of broadcasting the interviews, but primarily about who is blacklisted in the end.
While not forgetting to celebrate the victory, nevertheless, this is not the right time to relax. Here is a timeline.
From now on, the Qualification Commission of Judges will have the discretion to rank the candidates from the pool of remaining 71 competitors. They will offer the Council of Justice the shortlist of at least 35 – maximum 39 people. Though both these judicial bodies are empowered by the law to block the candidates with questionable political ties, there are minimal chances they will do this, if any.
Another big challenge ahead is the creation of court apparatus. The State Judicial Administration and the Council of Justice are tasked with the selection of staff. They should start competitions without any further delay. The court’s staff will access secret information, so any postponement will allow transferring people from old courts together with ill practices of leaking sensitive information.
We expect the court to be operational in spring. It will take over the ongoing corruption cases from other courts and restart their consideration, so some time would be needed for the delivery of first verdicts.
This, however, would leave us with the weakest point of the new anti-corruption tripod consisting of the National Anti-Corruption Bureau of Ukraine, the Special Anti-Prosecutor’s Office and the anti-corruption court, in the face of chief anti-corruption prosecutor Nazar Kholodnytsky. He was never brought to justice for interfering into judicial decision-making on NABU investigations or instructing witnesses how to cover up for top suspects. In late December, the Security Service of Ukraine closed the criminal proceeding into these violations. The closure appeared to be a few months after the special anti-corruption prosecutor stalled a criminal case against top security official Pavlo Demchyna.
The anti-corruption court is a major experiment of seeking a solution to how to deliver justice in top cases. In a longer perspective, Ukraine would still need to get the complex judicial reform done. And the lessons learnt over the last few years are that the Council of Europe’s standards of the majority of judges selected by judges in the country like Ukraine would only cement a vicious circle of a mutual cover-up if the judiciary is not cleaned prior to strengthening its self-governance.
It is obvious, that both judicial self-government bodies – the Qualification Commission of Judges and the Council of Justice — had mostly failed their work and should be relaunched. In order to ensure that this is not a mere facade change, a new philosophy of their composition should be applied. Since the involvement of international experts made miracles in the selection of anti-corruption judges, why not extend the same approach as a temporary measure for assessment of other judges as well? Being sick and tired of old problems, Ukraine is desperately seeking new and creative solutions.
Olena Halushka and Anastasia Krasnosilska are with the Anti-Corruption Action Center in Kyiv.
