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Ukraine: Establishment of Anticorruption Court Discussed in Legislature

(Mar. 5, 2018) On March 1, 2018, following strong recommendations of the International Monetary Fund, the Verkhovna Rada (Parliament) of Ukraine passed a resolution to include the recently introduced Bill on the High Anticorruption Court in the legislative agenda. The Rada agreed to discuss the Bill during the current parliamentary session once the suggestions proposed by the European Commission for Democracy through Law (Venice Commission) have been incorporated in the draft legislation by the Rada’s Judiciary Committee. (Verkhovna Rada Resolution No. 7440 of March 1, 2018 and Bill on the High Anticorruption Court (full text) (both documents in Ukrainian on the official Verkhovna Rada website).)

The Bill provides for the creation of a specialized judicial body with nationwide jurisdiction over corruption-related cases. This body would be composed of two separate chambers, each with its own set of judges, with one chamber serving as a court of first instance and the other as an appellate court for its own first-instance chamber. The Bill also stipulates that the Anticorruption Court would exercise judicial control over pretrial investigations of corruption-related crimes. Defining the jurisdiction of the High Anticorruption Court, the Bill states that the Court would be competent not only for corruption offenses in a strict sense but also for related crimes, such as abuse of power or official position, illegal enrichment, and money laundering committed by specified high-ranking officials (e.g., the Prime Minister and members of the Cabinet, specified senior civil servants, judges, and senior prosecutors) or by other officials if the damage caused by the crime equals or exceeds a specific monetary amount that would be established by a separate law. (Id. arts. 1, 4.)

The Court would consist of no fewer than 40 judges who would be selected through an open competition by a specially appointed Competition Commission. The Law provides for approximately the same requirements for High Anticorruption Court judges as for Supreme Court judicial nominees, making lawyers with an “impeccable reputation” and ten years’ professional experience as a judge, criminal lawyer, or legal academic eligible to apply. The Bill establishes that those who served as prosecutors or in law enforcement during the ten-year period preceding their nomination to the Court are not eligible to serve on the bench. (Id. art. 5.)

The appointment procedure also follows the procedure provided for Supreme Court judges and includes a qualification assessment administered by the High Judicial Qualification Commission, a special verification procedure including integrity checks, vetting by the Public Integrity Council, interviews, nomination by the Highest Judiciary Council (a professional organization of Ukrainian judges), and appointment by the President of Ukraine. (Id. arts. 12, 13.) Following the recommendation of the Venice Commission to secure the independence of judges and safeguard them from legislative or judicial influences, the Bill provides for the ineligibility of those who served as leaders of political parties or otherwise worked in leadership positions for Ukrainian political organizations. (European Commission for Democracy Through Law (Venice Commission), Opinion No. 896/201 on the Draft Law on Anticorruption Courts and on the Draft Law on Amendments to the Law on the Judicial System and the Status of Judges, 2017, ¶ 47); Bill on the High Anticorruption Court art. 7.) Other Venice Commission recommendations concerned further delimitation of jurisdictions between the High Anticorruption Court and regular courts when cases involving crimes falling under the jurisdiction of different courts are to be resolved. (Venice Commission Opinion, supra, ¶ 66.)

The Bill provides for security measures, material benefit packages for the Anticorruption Court judges, and  expanded disclosure requirements for the judges. Mandatory budget allocations for the Court’s functioning are also prescribed by the Bill. (Bill on the High Anticorruption Court arts. 18–20.)

The establishment of this Court in Ukraine appears to be a priority for the community of international donors given that, according to the Venice Commission, “corruption is one of Ukraine’s major problems [and] that parts of the judiciary itself have for many years been considered as weak, politicized, and corrupt.” (Venice Commission Opinion, supra, ¶ 8.) However, some scholars question the efficiency of such anticorruption institutions because they have not proved able to substantially expedite the processing of anticorruption cases. (Matthew Stephenson & Sofie Schutte, Specialized Anti-Corruption Courts: A Comparative Mapping, U4 Issue No. 7 (Dec. 2016), U4 Anticorruption Resource Center website.)

If this legislation is adopted, Ukraine will become the third country in Europe after Slovakia and Bulgaria with anticorruption courts in place. (Id. at 8.)