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The Ukrainian parliament’s legal policy and justice committee on May 21 approved sending President Petro Poroshenko’s bill on setting up an anti-corruption court for second reading – the last legislative hurdle before it can be signed by the president.
The bill, which was passed in the first reading on March 1, could be considered at second reading on May 24.
However, the committee did not make a decision on one crucial issue – the role of international donors’ representatives in the selection of anti-corruption judges.
According to the ongoing negotiations, the seven-member Council of International Experts, which will be delegated by Ukraine’s foreign partners and donors, will be able to veto candidates for the anti-corruption court nominated by the 16-member presidentially controlled High Qualification Commission.
A joint session of the Council of International Experts and the High Qualification Commission will be able to override such vetoes.
Allies of President Petro Poroshenko insist that at least 16 votes should be enough to override vetoes by the Council of International Experts on candidates. This means that the High Qualification Commission’s 16 votes will be enough, and foreign donors’ opinion can be ignored.
Ukraine’s foreign partners say that at least 20 votes should be necessary to override a veto by foreign partners.
However, Vitaly Tytych, a member of the Public Integrity Council, told the Kyiv Post that the commission would be able to rig the competition for the anti-corruption court in either of the two scenarios.
Tytych, Markiyan Halabala, Roman Kuybida and other lawyers have proposed that the High Qualification Commission, which has discredited itself, be deprived of the right to hold the competition for the anti-corruption court. They suggested that a newly-created special chamber of the High Qualification Commission comprising a majority of foreign donors’ representatives should select the anti-corruption court.
Moreover, the discredited High Qualification Commission must be deprived of its arbitrary powers to assign scores subjectively during competitions for anti-corruption and other judges, and such scores must be based on objective criteria, Tytych argued.
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 without giving any explicit reasons.
To make the competition’s criteria objective, the law on the judiciary must be amended to clearly assign 750 points for anonymous legal knowledge tests and practical tests (for competitions for both the anti-corruption court and all other courts), Tytych said. If parliament refuses to amend the law, the High Qualification Commission can simply change its regulations, which is even easier, he argued.
Public Integrity Council members say the High Qualification Commission rigged last year’s competition for the Supreme Court. The commission denies the accusations.
First, during the practical test stage, some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool of promoting political loyalists.
Second, in March 2017 the High Qualification Commission illegally allowed 43 candidates who had not gotten sufficient scores during practical tests to take part in the next stage, changing its rules amid the competition. Members of the Public Integrity Council believe that the rules were unlawfully changed to prevent political loyalists from dropping out of the competition.
Third, the High Qualification Commission illegally refused to publish the scores for candidates’ psychological tests, failed to set a minimum score for psychological tests and illegally assessed the tests on its own (although they must have been assessed by psychologists), the Public Integrity Council argued.
Fourth, the High Qualification Commission and the High Council of Justice refused to give specific reasons for assigning specific total scores to candidates and refused to explain why the High Qualification Commission has overridden vetoes by the Public Integrity Council on candidates who do not meet ethical integrity standards.
