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Giorgi Vashadze, one of the authors of President Petro Poroshenko’s law on the anti-corruption court passed in June, is confident that even though no top corrupt officials have yet been jailed in Ukraine, many will inevitably end up behind bars.
“(Incumbent authorities’) time is coming to an end,” Vashadze, an adviser to Poroshenko’s chief of staff Ihor Rainin and founder at the Innovations and Development Foundation think tank, said in an interview with the Kyiv Post in June.
Indeed, Vashadze believes the anti-corruption court, which the law states must be established within a year, will be a death sentence for high-level graft.
“I remember some lawmakers’ eyes (when they adopted the anti-corruption court law),” he said. “They were thinking: ‘Damn, what the hell are we adopting?’”
But critics of Vashadze, a native of Georgia and a former ally of Georgian ex-President Mikheil Saakashvili, are more cautious, saying that there are lots of loopholes in the law that would allow the kleptocracy to either create a dysfunctional anti-corruption court, or to avoid being convicted by it.
“People told me on Facebook I’d been bought by Poroshenko,” Vashadze said. “They know well that neither Poroshenko nor anyone else can buy me.”
Top-level graft
Referring to people accused of corruption in Poroshenko’s inner circle, Vashadze said that “if they must be jailed, they will be jailed.”
Poroshenko’s top allies – Ihor Kononenko, Oleksandr Hranovsky and Oleh Hladkovsky – have been accused of profiteering from state firms, although they deny the accusations.
“We’re creating institutions,” Vashadze said. “They must decide for themselves – either they’re on the right side, or they’ll stay the way they are, and they’ll necessarily end up in jail.”
He mentioned the case of fugitive lawmaker Oleksandr “Onyshchenko, who was deemed to be a protégé of the president,” but who was charged with corruption by the National Anti-Corruption Bureau of Ukraine. Onyshchenko, who is accused of embezzling Hr 1.6 billion ($64 million), fled Ukraine in 2016 and turned into an opponent of Poroshenko.
The fugitive lawmaker and businessman has been claiming that Poroshenko was his partner in corrupt schemes, which included bribing lawmakers. Poroshenko’s administration denies all of Onyshchenko’s allegations.
Vashadze went on to say that the case of Interior Minister Arsen Avakov’s son Oleksandr should be sent directly to the anti-corruption court. He is accused of embezzling Hr 14 million in a case related to the supply of backpacks to the Interior Ministry.
“Do you think there are not enough Nasirovs and Martynenkos?” he said, referring to ex-State Fiscal Service Chief Roman Nasirov, a presidential ally, and ex-People’s Front lawmaker Mykola Martynenko – both suspects in graft cases. “All of them should be jailed.”
Bad or good candidates?
The anti-corruption court law was passed by the Rada on June 7 and signed by Poroshenko on June 11. On June 26, Poroshenko also signed an additional law to formally create the court.
According to the law, at least three members of the six-member Council of International Experts, a foreign advisory body, can call a joint meeting of the High Qualification Commission and the Council of International Experts to decide whether to veto a candidate for the anti-graft court if there are doubts about his or her professional integrity, source of wealth, or skills.
Then the candidate must be approved by a majority of the joint meeting, and at least three international experts have to vote for him or her.
“Only good ones will be selected, and the High Qualification Commission will choose among them,” Vashadze said. “This wine is good, but this wine is better. You like Tsinandali (a Georgian wine variety), and I like Napareuli, but we both know that it’s wine, not urine.”
But Vitaly Tytych and Roman Kuybida – members of the Public Integrity Council, the judiciary’s civil-society watchdog – have the opposite view: The High Qualification Commission will be able to choose exclusively “bad” and government-controlled candidates in an arbitrary way when it assigns scores. As a result, there will be no good and independent candidates to choose from, and foreigners’ veto powers will not matter, Tytych said.
Moreover, six foreign representatives will not have enough time and resources to assess candidates’ background within the 30-day deadline after scores are assigned, Tytych argued. By comparison, the Public Integrity Council has 17 members and had more time to evaluate candidates during the Supreme Court competition.
Vashadze countered that foreign experts would have time to examine candidates in the period before scores are assigned, which would be about a month.
Tytych also said that, under the law, foreign experts would not be able to assess the wealth of those of the candidates’ relatives who do not live with them. In contrast, the Public Integrity Council did have such authority during the Supreme Court competition.
Assessment procedure
Another loophole in the law is that it does not solve the problem of the High Qualification Commission’s arbitrary and subjective assessment methodology, according to the Public Integrity Council. The commission denies the arbitrariness of its methodology.
During the Supreme Court competition, 210 scores were assigned for anonymous tests, and the High Qualification Commission could 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.
“I’m not against changing the methodology for assigning scores,” Vashadze said. “Let’s sit and discuss this.”
Choosing foreigners
The law has also been criticized by lawyers and anti-corruption activists because it is still not clear from its text which foreign organizations will select representatives for the Council of International Experts. There is a risk that some of the international experts will be biased in favor of the Ukrainian authorities, which may allow top officials to create a puppet court, said Kuybida, a view echoed by Daria Kaleniuk, the executive director of the Anti-Corruption Action Center.
Vashadze rejected the accusations, saying that the Council of Europe, the European Union, the World Bank, the Organization for Security and Cooperation in Europe, the Financial Action Task Force on Money Laundering, the Organization for Economic Cooperation and Development and the International Monetary Fund would be eligible.
Meanwhile, representatives of the Council of Europe, the European Union and the OSCE have been accused of siding with Ukrainian authorities during the controversial Supreme Court competition. They deny the accusations of bias.
Vashadze said it would be impossible for Ukrainian authorities to “buy” several foreign representatives.
He also argued that he was against the participation of Transparency International and local Ukrainian non-governmental organizations in the competition for anti-graft judges because they were involved in politics and could have biases.
Under the law, only Ukrainian citizens and foreigners who have been judges or prosecutors abroad in corruption cases for at least five years can be nominated to the Council of International Experts.
“The president demanded that, although we can’t (explicitly) ban Ukrainians from participating, we’ll write it in such a way that there will only be people from other countries,” Vashadze said.
Tytych criticized the decision to prevent the nomination of Ukrainians by foreign organizations and exclude Ukraine’s Public Integrity Council from the competition. He said that, compared to local independent experts, foreigners often know less about Ukraine and will not be able to properly assess the candidates’ backgrounds without Ukrainians’ help.
IMF role
The IMF does not want to send its representatives to the Council of International Experts, Vashadze said. The IMF could not comment immediately. Tytych said, however, that he believed the law prevents the IMF from participating because it does not have treaties with the Ukrainian government.
Commenting on the IMF’s requirements for the anti-corruption court, without which Ukraine will not continue to receive disbursals from a $17.5 billion loan package, Vashadze said that the country would be able to survive without IMF funding.
“If you think the law was passed thanks to the IMF, you’re mistaken,” he said. “We told them to back off many times.”
Scandalous amendment
According to one of the law’s amendments, appeals against verdicts in graft cases sent to trial before the anti-corruption court’s creation will be considered by ordinary courts, not the High Anti-Corruption Court’s appeal chamber. Critics say that the amendment on appeals effectively gives amnesty to suspects in existing top-level graft cases. In addition, the Anti-Corruption Action Center and lawmakers Iegor Soboliev, Mustafa Nayyem and Sergii Leshchenko accused the authorities of effectively falsifying the law and inserting the clause by stealth.
Vashadze rejected the accusations, saying that the amendment had been read at a meeting of the Verkhovna Rada, according to a transcript of the meeting.
“If we correct this amendment, there will be no problems at all,” he said.
He accused critics of the clause of politicizing the situation. “Nobody knew that this amendment was there, and Poroshenko didn’t know that it was there,” Vashadze added.
The IMF on June 20 called on the Rada to change the law to allow the anti-corruption court’s appeal chamber to hear appeals in ongoing graft cases. Andriy Parubiy, speaker of the Rada, said on June 29 he expected the amendments to be passed in July.
Cassation problem
Another critique of the law is that all second appeals against old and new NABU cases — called cassation in Ukraine — will be considered by the discredited Supreme Court. Kuybida and Tytych told the Kyiv Post this would allow the authorities to block corruption cases. The way to solve this problem would be to create a special anti-corruption chamber recruited under transparent rules at the Supreme Court, Kuybida said.
Vashadze said he disagreed with the proposal. “If the anti-corruption court is trusted, the Supreme Court will not cancel its decisions,” he said.
However, he said that the selection procedure used for anti-corruption judges can be applied to choose 80 more judges of the Supreme Court later this year.
Failed institutions
Vashadze admitted that many previous attempts at reform – including the National Agency for Preventing Corruption and the prosecution and police reforms – had failed.
He argued that they had been unsuccessful because wrong mechanisms were used to implement them, and they were delayed.
But Vashadze said that the projects in which he had participated – the creation of the NABU, the Prozorro public procurement system and Gotovo administrative service centers – had succeeded.
“I was not deceived in the case of the NABU and won’t be deceived with the anti-corruption court,” he said. “I don’t enter projects in which I don’t know precisely what the result will be.”
