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The legislation for the long-awaited anti-corruption court, hailed as a reform victory by the Ukrainian government, contains a get-out-of-trouble clause for some top officials currently facing trial, activists say.
Appeals against verdicts in current trials brought by the National Anti-Corruption Bureau of Ukraine before the anti-corruption court’s creation will be considered by ordinary courts, not the High Anti-Corruption Court’s appeal chamber, according to the law on the anti-corruption court published on June 13.
“This clause gives an amnesty to all top corrupt officials whose cases are currently being tried,” said Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board. “Now the cases against (ex-People’s Front lawmaker Mykola) Martynenko, (ex-State Fiscal Service Chief Roman) Nasirov and other controversial top officials will remain in the ordinary courts and, as far as we understand, will be sabotaged.”
The High Anti-Corruption Court and its appeal chamber will only be able to consider new corruption cases sent to trial after the court’s creation.
The law was passed by the Verkhovna Rada at second and final reading on June 7 and signed by President Petro Poroshenko on June 11.
The clause on sending appeals on current cases to ordinary courts was inserted into the law by stealth, according to the Anti-Corruption Action Center.
It was not discussed at a meeting of parliament’s legal policy and justice committee, and it was not read by Ruslan Knyazevych, head of the committee, in the Verkhovna Rada before the bill was passed, the Anti-Corruption Action Center said. Moreover, the amendment was not published on the Verkhovna Rada’s site ahead of the publication of the law.
Knyazevych’s office did not respond to a request for comment.
The clause contradicts Ukraine’s agreements with its foreign partners, the Anti-Corruption Action Center said. It appeared in the text of amendments given to lawmakers an hour before the vote, the watchdog said.
This clause implies that the first verdicts against top corrupt officials will only come in two to three years – the time it takes to set up the new court and for it to hear its first cases – the anti-corruption group said.
Yaroslav Yurchyshyn, head of Transparency International Ukraine, called for the law to be amended.
Meanwhile, all second appeals against both old and new NABU cases – called cassation in Ukraine – will be considered by the discredited Supreme Court. Roman Kuybida and Vitaly Tytych, members of the Public Integrity Council, believe this will also allow the authorities to block corruption cases.
Members of the Public Integrity Council, the judiciary’s civil-society watchdog, believe the competition for Supreme Court judges was rigged in favor of government loyalists last year by the High Qualification Commission.
The commission denies the accusations.
Kuybida and Tytych also argued that the law would not prevent the rigging of the competition for anti-corruption judges in favor of government loyalists by the High Qualification Commission. They say that foreign representatives should take part not just in vetoing the worst candidates on the basis of integrity, but in the selection process.
Moreover, the legislation does not solve the problem of the High Qualification Commission’s arbitrary and subjective assessment methodology, Tytych said.
During the Supreme Court competition, 90 points were assigned for anonymous legal knowledge tests, 120 points for anonymous practical tests, and the High Qualification Commission could arbitrarily 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.
