Positive and negative aspects of the President’s draft law on the Anti-Corruption Court

Positive aspects:

1. The draft law provides that the Supreme Anti-Corruption Court will administer justice as a court of first instance and an appeal court (an appellate review of decisions will be carried out by a specially created chamber within the Anti-Corruption Court). Such a model is more universal and elaborate than when an appeal review is carried out by the chamber within the Supreme Court, because according to this model, special procedures and guarantees (competitive selection, etc.) should be provided only for the Anti-Corruption Court, and not simultaneously for the Anti-Corruption Court and the chamber in the Supreme Court. The draft law borrowed this model from the experience of Indonesia.

2. The Supreme Anti-Corruption Court is determined to be the chief administrator of budgetary funds, which is a guarantee of its financial independence.

3. A special qualification requirement is provided for the applicants for the position of a judge – experience in the implementation of professional anti-corruption activities in international organizations or international judicial institutions.

4. The draft law provides that persons who for the last 10 years have worked in the prosecutor’s office, other law enforcement bodies, as well as held political offices or had a representative mandate, cannot claim the position of a judge.

Negative aspects:

1. The jurisdiction of the Anti-Corruption Court, determined by the draft law, will actually offset its effective work. According to the draft law, within the Anti-Corruption Court’s jurisdiction there will be not only those cases that are under investigation by the NABU, but also a fairly wide range of other cases from the competence of the National Police bodies. For example, anti-corruption courts will review cases under the Article 191 of the Criminal Code of Ukraine (embezzlement) if this crime was committed through the abuse of office. At the same time, NABU will carry out pre-trial investigation of criminal cases under the Article 191 of the Criminal Code of Ukraine only if this crime was committed by certain categories of persons or significant damage was inflicted. Anti-corruption courts will review cases under the Article 262 of the Criminal Code of Ukraine (theft, misappropriation of firearms), which are not subordinate to NABU at all.

At the same time, a whole range of cases investigated by NABU will not be subject to the Anti-Corruption Court. For example, according to the Article 209 of the Criminal Code (legalization of proceeds from crime) or the Article 366-1 (declaring unreliable information).

2. Anti-corruption courts will not only review a whole range of cases that are subject to investigation by the bodies of the National Police, but will also monitor compliance with laws during pre-trial investigations (the institution of investigative judges). The draft law specifies that all applications for applying measures in respect of all categories of cases relating to the jurisdiction of the Anti-Corruption Court (for example, theft, for which there may be hundreds of criminal cases, or theft of firearms) will be also submitted to the Anti-Corruption Court.

As a result of such a jurisdiction the Anti-Corruption court will be actually stuffed with cases, petitions, and complaints, which will make its proper work impossible.

3. The draft law does not actually provide for special competitive selection procedures to the Anti-Corruption court. It is said that general provisions on competitive selection stipulated by the Law of Ukraine “On Judicial System and Status of Judges” are applied taking into account individual specific features. One of these features is, for example, a live broadcast of qualification tests. But if the competitive selection is carried out only in the form of written testing (without the need for an interview as an obligatory stage), such a live broadcast becomes meaningless.

The competitive selection will be carried out by the Higher Qualification Commission of Judges, and not by a specially created competitive commission.

4. The importance of the Public Council of International Experts is minimized. Their function is the same as the function of the Public Council of Virtue – that is, the collection of information about candidates. But the decision can be changed by the decision of the High Qualification Commission.

That is, instead of giving international experts a decisive role in the selection process (such experts should be part of the competitive commission that would conduct a direct selection), they were given advisory functions. In addition, the members of the Public Council of International Experts are appointed and dismissed by the Higher Qualification Commission.

The norms envisaged by the draft law will actually make the selection in the Anti-Corruption Court similar to the selection in the Supreme Court, when a significant number of candidates that had negative reviews from the Public Council of Virtue were approved.

5. Disciplinary proceedings against judges of the Anti-Corruption Court will be carried out in the general order, that is, by the Supreme Council of Justice. Since the dismissal of a judge from office is one of the disciplinary penalties, this can turn into an instrument of pressure on judges. The draft law should provide for special disciplinary proceedings in respect of judges of the Anti-Corruption Court and a special procedure for their dismissal. For example, by establishing the need for the consent of the self-governing body of judges of the Anti-Corruption Court to a disciplinary proceeding.

Thus, the draft law does not provide for any special order of disciplinary proceedings and dismissal as one of the key guarantees of the independence of judges.

6. The qualification requirement for the candidates for the post of judge related to significant experience in the implementation of professional anti-corruption activities in international organizations or international judicial institutions and the knowledge and practical skills of applying modern anti-corruption standards is unclear, allows for discretion in the qualification assessment, and creates opportunities for “screening-out” of unfavorable for the authorities candidates.

In addition, such a qualification requirement in combination with the requirement of 5 years of experience as a judge, for example, significantly narrows the circle of applicants. It is unlikely that it will be easy to find a large number of persons who have worked as a judge for five years in Ukraine and also have experience working in international organizations or international judicial institutions. That is, such qualification requirements can significantly delay the process of formation of the court.

7. The number of judges of the Anti-Corruption Court shall be determined by the State Judicial Administration within one month from the date of entry into force of the law. Given the established jurisdiction, the number of judges should be quite large. At the same time, the draft law specifies that the Anti-Corruption Court starts its work after the selection of 2/3 of the composition. The process of selecting 2/3 of the composition of the court, determined by the State Judicial Administration, can significantly postpone the start of the work of the court.

8. The draft law does not provide for an increased remuneration for judges of the Anti-Corruption Court.

9. The draft law does not altogether provide for the procedure for selecting the head of the Anti-Corruption Court and the head of the appeal chamber.

10. The draft law provides for the possibility of transferring cases that are under the jurisdiction of the Anti-Corruption Court from the Anti-Corruption Court to the Court of Appeals, which extends its jurisdiction in the city of Kyiv (if it is impossible to create a chamber in the Anti-Corruption Court). Such a situation can be artificially created with the purpose of transferring a particular case to another court “in a manual mode”.

Given the above-stated facts, it can be stated that the draft law contains a number of critical contradictions to the recommendations of the Venice Commission and does not contain any real mechanisms for guaranteeing the selection of independent and virtuous candidates for the position of judges. The possibilities of transferring cases – provided for in the document – are, in fact, the authorities’ means of protecting “their” people! At this stage, it is important to implement conceptual changes in relation to the specified issues during the first reading stage, otherwise we will get another disappointment.

 

Olena Sotnyk

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БУДЬТЕ В КУРСІ ГОЛОВНОГО, ПІДПИШІТЬСЯ НА НАШ КАНАЛ: T.ME/SAMOPOMICH

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