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Published On: Sat, Jul 15th, 2017

NGOs lambast Juncker for waiving EU’s condition that Ukraine establish anti-corruption courts

nsnbc : The National Anti-Corruption Bureau of Ukraine (NABU) and an alliance of other NGOs, on July 13 – 14, issued statements blasting European Commission President Jean-Claude Juncker for backtracking on the EU and IMF requirement that Ukraine set up independent anti-corruption courts.

Juncker and Poroshenko_Kiev_Ukraine_Jul 2017During the EU-Ukraine Summit on July 13, Juncker said that Ukrainian President Petro Poroshenko has persuaded him that the Ukraine could create an anti-corruption panel within the existing Supreme Court instead of establishing independent anti-corruption courts. One of the main differences is that anti-corruption courts would have been created via a transparent procedures with the help of foreigners to guarantee their independence and professionalism, while anti-corruption panels would be set up within Ukraine’s unreformed and politicized judiciary.

Setting up the anti-corruption court was one of the main conditions set by the International Monetary Fund  (IMF) and European Union to grant Ukraine further loans. In its latest memorandum, the IMF, which has already disbursed $13.6 billion out of a $17.5 billion bailout for Ukraine, set a strict June 14 deadline for the anti-corruption court bill to be approved by Ukraine’s parliament. A bill on the establishment of the anti-corruption court was tabled by lawmakers in parliament in February. However, President Poroshenko and Verkhovna Rada (parliament) speaker Andriy Parubiy ignored the bill. The deadline was missed, and Juncker is apparently satisfied with “the next best thing.”

Jean-Claude Juncker_EU Commission_Kiev_Ukraine_Jul 2017EU Commission President Juncker – no stranger to controversy – said: “We previously insisted on the establishment of a new special anti-corruption court in Ukraine, but President Petro Poroshenko persuaded us that … it would be better to create the special anti-corruption panel of judges, who would convict high-profile corrupt officials in Ukraine.”

Poroshenko’s critics dismiss this as an attempt by him to deceive the European Union and make sure that the courts that handle graft cases remain corrupt and dependent on him. It’s worth noting that the controversy about an anti-corruption court comes ahead of next year’s elections and a cohort of corruption scandals involving close associates of Poroshenko.

The Ukrainian Anti-Corruption Action Center, the Reanimation Package of Reforms, Transparency International Ukraine, the Center for Democracy and Rule of Law, AutoMaidan and other Ukrainian NGOs made a statement about Juncker on July 14. The signatories expressed “deep concern regarding the EU waiving its request” for the independent anti-corruption court. The signatories also said: “We would like to appeal to Mr. Juncker with a proposal to meet with non-governmental organizations of Ukraine. … “During this meeting we would like to explain in detail the risks and threats of establishing anti-corruption chambers (panels) in courts of lower instances.”

The civil society groups argued that “in order to preserve the successes of the previous three years of fruitful joint work and to achieve tangible results in the fight with corruption, it is crucial to introduce an independent judiciary mechanism, which is being decided now.” “There will be no more second chances for the anti-corruption reform to succeed,” they said.

The NGOs stressed that the problems with high-level corruption cases are mostly concentrated at the courts of first instance: consideration of one third of the cases submitted to the courts has not even started (24 cases out of 75); some of them have been pending for more than a year; a lot of cases are blocked by the investigative judges at the stage of pre-trial investigation.

Moreover, wrote the signatories, the non-reformed courts of first instance adopt politically motivated judgments when it comes to the officials suspected of corruption: in particular, former MP Mykola Martynenko, who is suspected by the NABU of inflicting damages to the state in the amount of more than 17 million USD, has been released on personal recognizance, while ordinary Ukrainians who steal anything worth several dollars are arrested for several months.

Moreover, the courts of the first and the appellate instances have not been reformed yet. New judges have not been recruited to these courts, while the whole process of change can take up to five years at best. Thus, establishment of chambers at the existing courts will mean that the status of anticorruption judges will be given to the judges who impede consideration of cases by the NABU and adopt politically motivated judgments.

The NGOs point at the additional problem that the selection of new judges to the anticorruption chambers at the local and appellate courts will take much longer than establishment of a separate anticorruption court. There are about 600 local courts in Ukraine, so the newly established chambers will require 1,800 judges, whereas only 150 judges shall be recruited to launch a separate anticorruption court.

Judges of the High Anticorruption Court, who will be pressurized by the corrupt political elite, will require additional security guarantees for themselves and their families. Establishment of anticorruption chambers at the local courts will also make it more difficult to ensure the safety of judges all over the country, they explained.

The  National Anti-Corruption Bureau of Ukraine (NABU) also lambasted Juncker for waiving the demand that Kiev establish the anti-corruption courts. Ina statement released by the board, NABU stressed that some members of parliament and high-ranking public officials are deliberately lobbying an opinion as though establishment of a separate Court is unjustified, costly, and time-consuming process.

As an alternative, they propose to develop anti-corruption chambers within existing courts of general jurisdiction. There is a strong reason to believe, that the statement of the President of European Commission, noting that the European Union considers it sufficient to create a Special Anti-Corruption Chamber is a consequence of a targeted attempt to mislead Ukraine’s European partners, NABU notes.

NABU argues that one Anti-Corruption Chamber within the existing court – for instance in the Supreme Court – will be insufficient, since one Chamber cannot combine all three instances. According to the same line of thought, NABU states, there may be Anti-Corruption Chambers within unreformed courts of the first and appellate instances, adding:

If that concept materializes, then the very value of establishing of an Anti-Corruption Court will be completely lost. Things will even get worse. Probably, that is the exact the interest of those, who are lobbying this very idea among international partners; of those, who are trying to take advantage of less than full awareness of our friends in Europe of peculiarities of the Ukrainian judicial system.

NABU states that it is convinced that the Anti-Corruption Chambers will not only fail to solve the problem of the lack of convictions in cases involving top corrupt officials, but will actually make the system worse. According to available information, there currently are about 2,500 vacant judgeship positions in courts of first instance. If many first instance courts are currently unable to provide the composition of a panel of three investigative judges to consider cases submitted from NABU/SAPO, it is unclear how they will be able to form separate Anti-Corruption Chambers. It is also unclear how selection of professional judges with high moral integrity to those Chambers will be ensured. Moreover, if anti-corruption specialization is introduced in local and appellate courts, then there is a high risk, that traditional local corrupt bonds and “clans” will appear.

NABU emphasizes that the establishment of a separate High Anti-Corruption Court (HACC) represents a rather speedy, effective and legitimate way to solve the problem of lack of convictions in cases involving highest-ranking corrupt officials, as well as a prerequisite for a successful fight against corruption in Ukraine. NABU fully shares the concept of HACC, which was approved by representatives of international organizations and the civil society within the framework of the OSCE roundtable on June 16, 2017. The subject concept includes two major components:

1. judges should be selected through a fair and transparent system, which would lead to high level of public trust in the new institution. In the competitions to fill positions at HACC, it is important to involve not only judges, but also lawyers, legal experts and scholars – professionals with high integrity and superior skills, since the corruption schemes under investigation by NABU and SAPO are complex and pressure from interested parties could be high. The competition process itself has to be transparent and it is key to engage international experts and the civil society representatives in the competition commission.

2. The second important aspect relates to available case appeals procedure. Anyone, whose case is pending in HACC, as a first instance court, must be able to exercise a constitutionally guaranteed right to appeal, and in cases stipulated by law to be able to have the case review through cassation procedure. In our opinion, there may be various acceptable options for an institutional decision on the appellate instance – the establishment of an Appeals Chamber in HACC or within the Cassation Criminal Court of the Supreme Court, provided that transparent and fair selection of professional and honest judges to such a Chamber, and its administrative autonomy within the court are ensured.

The NGO also emphasized that this concept does not contradict in any way with the Constitution of Ukraine and the requirements of the Law on the Judiciary and Status of Judges. Quite the opposite, the updated Law on the Judiciary and Status of Judges provides for a possibility of operation of the High Anti-Corruption Court as an integral part of the current judicial system of Ukraine.

NABU added that it is convinced that in the event of legislative implementation of this concept by Verkhovna Rada of Ukraine, public will at least get a chance to implementation of a right to a fair trial and a chance to availability of a prompt and unbiased consideration of cases involving top corrupt officials that are investigated by Detectives of NABU and prosecuted by SAPO.

NABU noted that it launched its first investigations already in eight months after the signing of the Decree of the President of Ukraine on the Establishment of Bureau. Therefore, stated the NGO, we are quite confident that it is reasonable to believe that one year will be enough to develop High Anti-Corruption Court. Establishment of a Court is one of key commitments, which Ukraine undertook in front of its international partners – the European Union and the International Monetary Fund.

As of early July 2017, Court has not started reviewing 23 out of 75 cases submitted by the NABU and SAPO. Judgments were delivered only in 18 cases. The majority of them are plea bargains with members of minor significance to corruption schemes. Majority of cases have been stuck in courts for many months. Existing courts have not created a precedent when a top official gets a real punishment for a corruption offence. It seems that  Ukrainian judicial system in its current state leaves no alternative to establishing of a separate independent Anti-Corruption Court.

CH/L – nsnbc 15.07.2017

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