Ukraine must create an independent anti-corruption court (20.09.2017)
Transparency International calls on the Ukrainian authorities to create an independent anti-corruption court as part of Ukraine’s legal obligations and its commitments to the EU and the International Monetary Fund. Only this will strengthen the country’s efforts to fight corruption.
Ukraine’s President Poroshenko has stated that an anti-corruption chamber should be created within the current court system. But this will not deal with the current backlog of cases nor win the trust of Ukrainians.
"Ukraine should adopt an independent anti-corruption court to ensure that nepotism and cronyism play no part in how justice is delivered in Ukraine. President Poroshenko understands the urgency of the situation but his proposal of a chamber within the current system will not work. People do not trust the judiciary to hold the powerful to account because the courts have shied away from this in the past,” said José Ugaz, Chair of Transparency International.
To date, the current courts have not even started hearings for 26 of the 86 cases for which detectives of the National Anti-Corruption Bureau of Ukraine have completed pre-trial investigations. Even in these cases, expectations are not high. Unlike many European countries, Ukraine does not have a judicial system with a reputation for independent and fair justice based on the rule of law.
"There is no reasonable alternative to the anti-corruption court. With proper political will from the President and Parliament in place, the court can be established within a reasonable time. Political will is the key ingredient and that is what we are missing now,” said Yaroslav Yurchyshyn, Executive Director of Transparency International Ukraine.
Transparency International is calling for the creation of an independent court in order to establish a strong judicial pillar that cannot be For this to happen, judges in the court must be elected through open competition, with international partners taking a role in the selection process.
A strong judiciary must also be properly resourced and protected. All anti-corruption judges must be provided with adequate remuneration and a sufficient level of security for themselves and their family members.
Präsident Petro Poroschenko
President on the establishment of the anti-corruption chamber: It is not about the name, but about the level of trust and efficiency of the anti-corruption body (15.09.2017)
In the course of the 14th Yalta European Strategy Annual Meeting "Is This a New World? And What Does It Mean for Ukraine?”, President Petro Poroshenko commented on the establishment of the Anti-Corruption Court answering the question about his assessment of the reforms aimed to fight corruption and the "roadmap” in this issue for the next 12 months.
The Head of State noted that the judicial reform, including the constitutional one, must undergo the expertise in the Venice Commission and the EU Council. The President is hopeful that the results will be provided in October already.
Petro Poroshenko said that the procedure of verification and selection of judges to the new Supreme Court took almost 1.5 years and emphasized that it was a long process. The President noted that we don’t have such time for the establishment of the Anti-Corruption Court.
"It is not about the name, but about the level of trust and efficiency of the anti-corruption body,” Petro Poroshenko said and added that in such situation "we can create the anti-corruption chamber already next month”. At the same time, he didn’t exclude the possibility of creating the Anti-Corruption Court in 2019 or 2020.
The President emphasized that he does everything possible together with his team to create an independent judicial system and drew attention to an intensive and efficient cooperation with the international partners in this direction.
President: A separate Anti-Corruption Court must be created in Ukraine (04.10.2017)
A separate judicial anti-corruption vertical line should be created in Ukraine as part of a separate Anti-Corruption Court, cassation instance—the anti-corruption chamber in the Supreme Court of Ukraine and representatives of the anti-corruption court on the ground. It was stated by the President in the meeting with the staff of Taras Shevchenko National University "Chernihiv Collegium”.
"The Law "On the Judiciary and Status of Judges”, which was also adopted by the Verkhovna Rada, became the basis for the start of the judicial reform. I want to remind that this was also my project, made as urgent. And I wrote with my own hands the regulation on the creation of the anti-corruption court to the draft law. And, by the way, funds for financing the anti-corruption court in the draft budget for 2018 have already been foreseen. Believe me, it is not accidental,” the President said.
The Head of State stressed: "We really need to ensure that all courts in Ukraine are anti-corruption. All without exception. To do this, we are making a reform”.
"But a separate judicial anti-corruption vertical line must be created in the composition of a separate Anti-Corruption Court, cassation instance—the anti-corruption chamber in the Supreme Court of Ukraine and, as the Verkhovna Rada will determine, departments of the anti-corruption court on the ground, so that people from Sievierodonetsk or Zakarpattia won’t have to go to a single anti-corruption institution,” Petro Poroshenko noted.
According to him, several draft laws have already been elaborated even though they are not flawless and in a certain way PR-projects of certain political forces, because the key words are "anti-corruption court”. "Of course, everyone welcomes that. But the devil is in the detail. And that is why, it is extremely important to collect votes in the Parliament,” he said adding that the already elaborated draft laws failed to find support.
Petro Poroshenko urged the Parliament to work over the concerted draft law. "I would like to address the Parliament with a proposal to create a working group immediately and elaborate a concerted draft law that will be supported by the whole Verkhovna Rada. This is the only possible way,” he stressed.
At the same time, Petro Poroshenko doesn’t want this issue to be used as a subject of political PR or political speculation. "The question is to create a truly effective and independent judicial body that will specialize in combating corruption and help accelerate the disposal of legal proceedings against corrupt officials,” he said.
Venice Commission invites the President of Ukraine to submit a revised draft law on anti-corruption courts to Parliament, based on its recommendations
Strasbourg, 06.10.2017—In its opinion on the draft law on anti-corruption courts in Ukraine adopted today, the European Commission for Democracy through Law (the "Externer Link: Venice Commission”) said that many of the provisions of the draft law provide a good basis for the establishment of a high specialised anti-corruption court, but made several recommendations to reduce the risk that it could be considered unconstitutional. In order to dispel any doubts about the constitutionality of the legislative procedure, the Venice Commission invites the President of Ukraine to promptly submit his own draft law on anti-corruption courts—which should be based on the Venice Commission’s recommendations. The current draft law (Draft Law No. 6011) thus needs to be withdrawn.
The Venice Commission stresses that corruption is one of Ukraine’s major problems, parts of the judiciary itself have for many years been considered as weak, politicised and corrupt, and its ongoing reform—which is promising and to be strongly supported—will take several years to complete. The only way forward in the fight against high-level corruption in Ukraine is the prompt establishment of a high specialised anti-corruption court (HACC), as foreseen in the Law "On the Judicial System and the Status of Judges”, whose judges are selected in a transparent procedure with international involvement, the Venice Commission said.
It noted that the HACC has clear characteristics of a specialised court, rather than a special or extraordinary court, and thus does not jeopardise the unity of the judiciary. However, deviations from the general rules should be limited to what is necessary for the anti-corruption courts to work effectively, and care must be taken to avoid the possible impression that anti-corruption judges are of different or privileged class of judges. The level of remuneration for the HACC judges should be reconsidered; it should be commensurate with the increased demands of their position but should not differ too much from generalist judges’ remuneration.
The key components of the current draft should be maintained, namely the establishment of an independent HACC and appeal instance whose judges are of impeccable reputation, adequately protected and are selected on a competitive basis in a transparent manner. Temporarily, international organisations and donors active in providing support for anti-corruption programmes in Ukraine should be given a crucial role in the body competent for selecting specialised anti-corruption judges, similar to the role envisaged for them in draft law No. 6011. The international involvement seems to be justified in the specific situation in Ukraine, with due regard to the principle of Ukraine’s sovereignty.
The fact that according to the draft the members of the body in charge of the selection of the judges of the court are designated by political figures and institutions (the President and the Verkhovna Rada—and the Minister of Justice, though with limited discretion) gives rise to concern. Additional safeguards should be introduced to ensure that the procedure for the appointment of judges is independent of the executive and legislative powers. This could be achieved, for instance, by giving a non-political agency such as the High Qualifications Commission of Judges the right to nominate members to that body—subject to the role of international donors as discussed in the opinion.
In its opinion, the Venice Commission has also examined an alternative bill, the draft law of Ukraine on the introduction of mandatory specialisation of judges to consider corruption offences (draft Law No. 6529). It stressed that the draft deviates from the current law and international obligations of Ukraine to set up a specialised anti-corruption court. The Commission cannot see how the appointment of specialised judges in all courts in Ukraine could be justified and be implemented in practice. It appears questionable, the Venice Commission stresses, whether the referral of all kinds of corruption-related offences to the specialised judges would be an effective tool for enhancing the fight against high-level corruption in particular. The scope of competences of the specialised judges under the draft law in question is unclear, and the absence of any specific safeguards in the selection procedure and of any specific measures to protect the judges’ independence and safety is highly unsatisfactory, the Commission says. It concludes that these shortcomings conflict with the CoE-established requirements of specialised anti-corruption judges.