Raise your hand if your country has an anti-corruption court?
There aren’t many – only around 20 countries in the world have the specialized institution, which is meant to provide a fast and independent judicial track for corruption cases in nations whose justice systems have been compromised by graft.
And that’s what President Petro Poroshenko asked a room of assembled foreign dignitaries and investors at the annual Yalta European Strategy conference in Kyiv on Sept. 15.
He then started to list countries like Kenya and Uganda, implying that the system has been ineffective there.
“Where do anti-corruption courts exist? In countries that have made great achievements in the fight against corruption?” he asked, sarcastically.
But was Poroshenko right to dismiss the idea?
A closer look at the history of anti-corruption courts around the world suggests that they have provided an effective launch pad for anti-corruption drives; a fact that may give close associates of the president reason for concern.
In fact, according to a report from the Norway-based AntiCorruption Resource Center, Uganda has done much, much better with an anti-corruption court than Ukraine has without one, securing 288 convictions through the first six years of its operation.
Yegor Soboliev, the opposition Samopomich Party member of parliament sponsoring a bill to create the institution, told the Kyiv Post that “for Petro Poroshenko, the creation of such a court will mean either the need to fully review his relationship to power and to business, or the immediate loss of both his position and his freedom.”
Although the institution has met with criticism that it is ineffective against high-level graft, a look at different countries’ experience with the policy suggests that it could be an effective tool in Ukraine’s fight to establish an independent judiciary.
Historically complicated
Ukraine’s court system is swamped as it is — Supreme Court Chief Justice Yaroslav Romanyuk said in August that the Supreme Court faces more than 50,000 cases. He added that while 741 corruption cases are currently under consideration, that’s out of a total of 2,237 indictments.
On top of that, cases with politically exposed defendants have stalled. Former State Fiscal Service Chief Roman Nasirov almost walked free in March after no judge was initially willing to preside over a hearing on his pre-trial detention.
“By institutional memory, they are accustomed to acting on the orders of political power,” said Roman Maselko, a Kyiv attorney who is working on cases related to the EuroMaidan Revolution, during which police murdered 100 demonstrators before President Viktor Yanukovych was driven from power on Feb. 22, 2014.
Maselko related one instance of a judge who decided a case in favor of a party who bought him a washing machine.
“It’s important to create this out of nothing,” he said. “Trust in the system is so low that even if it were to work correctly, society would not believe them.”
Effective elsewhere?
Since the first specialized anti-corruption court was created in the Philippines in 1970, many countries have adopted them — 19 currently, including Afghanistan, Bangladesh, Botswana, Bulgaria, Burundi, Cameroon, Croatia, Indonesia, Kenya, Malaysia, Mexico, Nepal, Senegal, Slovakia, Tanzania, Thailand, Pakistan and Uganda.
Maksym Kostetskyi, head of Transparency International-Ukraine’s initiative for specialized anti-corruption courts, said that “in most countries with a highly developed democratic system, the normal judicial system works better than what exists in Ukraine, so there is no need for a special anti-corruption court.”
The worldwide experience of anti-corruption courts is mixed.
A December survey of the institution published by the Norway-based U4 Anti-Corruption Resource Center suggests that some countries have fared far better than others. The report cites a study saying that Malaysia managed to conclude 75 percent of the anti-corruption cases on its docket within one year, while the Philippines — the first example of such a court — developed a decadeslong backlog.
Kostetskyi said that hearings have only begun in 22 out of 81 cases in which NABU has completed its pre-trial investigation, leaving most cases to rot in court. An efficient anti-corruption court could accelerate the process.
Trickier than speed is the more fundamental issue of integrity.
Soboliev said that he saw Indonesia as the most successful example.
“When you are drowning in a corrupt swamp, it’s necessary to find firm ground or dry out at least a part of the swamp, from where you can continue your work,” he said.
A survey taken a few years after Indonesia’s court got its start showed that 70 percent of Indonesians believed their government was fighting corruption and going from 122 to 88 in Transparency International’s corruption index from 2003 to 2015. But even in that case, the country’s parliament managed to weaken the court after it succeeded in taking down several powerful officials.
In general, the institution appears to be most effective at combating corruption among mid-level officials who lack the top-level political cover that often allows politicians and businesspeople to literally get away with robbery.
But even when such independent courts are established, they remain vulnerable before hostile executive and legislative branches.
Kostetskyi said that the system should be as independent as possible.
“This is a temporary instrument until judicial reform is complete,” he said. “We could pass the cases from NABU to the special anti-corruption judicial institution to make those cases happen and finally serve justice to people guilty of corruption.”
Slovak example
The draft legislation that would create an anti-corruption court was proposed in January by Soboliev, based in part on Slovakia’s example of an anti-corruption court.
In October 2016, the U. S. Agency for International Development sent Ukrainian policy analysts to Bratislava to study the Slovak example.
“We included the Slovak experience in terms of both what worked and what didn’t,” said Mykhailo Zhernakov, head of the De Jure Foundation and an attorney who helped draft the concept for Ukraine.
Zhernakov and others said that a key issue would be where appeals from the anti-corruption court would go. Slovakia’s court was hobbled by an appeal process that led to the country’s politically vulnerable Supreme Court, which meant that any decision could be overturned.
The current draft of the Ukrainian bill has appeals going to an anti-corruption chamber within the Supreme Court.
Pavol Zilincik, a member of Slovakia’s judicial council, the regulatory body for judges, said that even a competent anti-corruption court is vulnerable to ineffective prosecutors and supreme court judges.
“The system is important, but the people within the system are everything,” he said.
But Soboliev said the Ukrainian bill would still be vulnerable to politically influenced Supreme Court judges. He demands that U.S. and European Union representatives be on hand to select judges for the Supreme Court anti-corruption chamber “to guarantee the honesty of the selection process.”
Chained to chambers
Besides Soboliev’s bill, there is other legislation under consideration. The proposal, submitted by Bloc of Petro Poroshenko parliament member Serhiy Alekseyev, would establish anti-corruption chambers in existing courts. Under the bill, there would be no need to hire new judges. “All courts should be equal,” Alekseyev told the Kyiv Post.
Critics say that the change would be cosmetic, as no new judges would be selected and anti-corruption proceedings would occur in the same courts as before. “Nothing would be achieved,” said Zhernakov.
But Alekseyev accused his critics of not reading the bill.
“There would be another competition to select new judges for the chamber,” he said, adding that it is best to wait until the Venice Commission decides what it favors.
He said he “supports an anti-corruption court,” but that society would have to wait 18 months until the court could start, echoing Poroshenko’s statement at YES. Alekseyev is accused of acting as a tool for the president. Last year, he submitted a bill that removed the requirement for legal education for prosecutor general candidates, paving the way for Yuriy Lutsenko to become the nation’s top prosecutor.
“You probably heard the president say ‘we don’t have time.’ Eff you. We’ve been waiting over a year,” Zhernakov said.
Transparency International’s Kostetskyi said Alekseyev’s bill would be faster, but it’s not effective.” “We would take existing judges and put the title of ‘anti-corruption’ on them. That doesn’t mean that they wouldn’t be subject to political influence.”
Unlikely to happen
Poroshenko’s stumbling on the issue has intensified pressure.
“We certainly agree that the creation of an anti-corruption court is an important next step,” IMF Deputy Managing Director David Lipton told Ukrainska Pravda. “We encourage the government to do that.”
Poroshenko’s contempt for an anti-corruption court provoked an immediate rebuke by former U. S. Secretary of State John Kerry, who told the same YES conference that, in America, “every court is an anti-corruption court. Even now, you see a special prosecutor investigating the president of the U.S.”
On Sept. 20, five days after Poroshenko’s comment, Transparency International chief Jose Ugaz issued a statement calling on Ukraine to establish an anti-corruption court.
But it remains to be seen if the momentum will translate into action. Public officials close to Poroshenko support Alekseyev’s version.
“All courts in Ukraine must be anti-corruption, here I will agree with both Poroshenko’s and Kerry’s arguments,” said Lutsenko. “But it is unacceptable to waste time by creating a separate anti-corruption court, as certain politicians are demanding.”
Those backing a separate anti-corruption court aren’t optimistic.
“Nothing regarding the judiciary could pass starting May 25, 2014 to this day without Poroshenko’s approval,” said Zhernakov. “Whatever was submitted by him to the Rada on judicial reform has been adopted.”
Soboliev said that convincing Poroshenko to embrace the anti-corruption court would be “the best scenario, better than a new uprising of citizens, enraged by the protection of high-level corruption after EuroMaidan and during our war for independence.”
