The launch of the High Anti-Corruption Court: legal and political risks

The High Anti-Corruption Court (HAC) is the last element lacking for a fully-fledged anti-corruption infrastructure. The process of forming the new court is difficult and accompanied by conflicts. Presidential election adds political uncertainty due to unpredictable outcome and impact that it will have on the future of the HAC. At the current stage, political elites do not abandon attempts to disrupt the work and discredit the Public Council of International Experts that putts all its efforts to filter out the malicious candidates for the post of judge.

Western partners and donors managed to force in their version of the future anti-corruption court under the pressure of the International Monetary Fund. They did not want the new court to be politically controlled and dependent on the President or other political groups. Two bills submitted to the Venice Commission were rejected. The MPs had to take into account recommendations and make a wording where the High Qualifications Commission of Judges of Ukraine (HQCJ) could not ignore the decisions of the Public Council of International Experts (PCIE), as it has been done in the judicial reform.

A special law on the “High Anti-Corruption Court” came into force on June 14, 2018 launching a 12-month time limit for the creation of the respective court. In another two weeks, the law “On Establishment of the High Anti-Corruption Court” took effect. The updated legislation provides for the creation of the High Anti-Corruption Court of Ukraine (HAC) that includes the separate Appeal Chamber. The HAC will administer justice as the court of the first and appellate instances (cassation is not provided) in criminal proceedings on corruption crimes. However, the final decision will be taken by the Supreme Court, which is actually controlled by the President Poroshenko.

In competition announced in the summer of 2018, 342 candidates filed their documents. After checking the documents, 270 candidates were admitted to the exams. Upon the results of the test and the written examination, less than half of the candidates remained – 113.

Then the Public Council of International Experts (PCIE) has entered into the case. Due to expanded powers, it could block any dishonest candidate. For a long time, the MPs did not agree to vote in favor of legislative changes providing an institution involving international experts, since, in their opinion, it interfered with state sovereignty and did not comply with the Constitution. Ultimately, this issue may cause the challenging in court of the competition commission decisions to appoint judges; judgments of the HAC may be recognized contrary to the Constitution. From a legal point of view, state decisions on the creation of a new anti-corruption infrastructure (the NABU, the State Bureau of Investigation, the National Agency on Corruption Prevention, the Specialized Anti-Corruption Prosecutor’s Office, the HAC, etc.) should be enshrined in the Constitution.

The PCIE includes the judge of the Supreme Court of Lithuania Aurelijus Gutauskas, the judge of the Court of Queen’s Bench in the Province of Saskatchewan (Canada) Ted Zarzeczny, ex-chairman of the first section of the European Court of Human Rights Mirjana Lazarova-Trajkovska, retired judge of the Court of Appeal of England and Wales Sir Anthony Hooper, retired U.K. prosecutor Lorna Harris and former Deputy Chief Prosecutor for Serious Economic Crime in Denmark Flemming Denker.

The members of the PCIE conducted interviews with 113 candidates within only 30 days. Only 71 candidates passed forward. The rigorous and non-appealing approach of the PCIE representatives during the process should be noted. Facts about the mismatch of wealth/property and income received, or the facts of the adoption of frankly wrongful/illegal decisions in the past became an obstacle that dishonest candidates could not overcome. For comparison, conclusions of the Public Council on Integrity are largely ignored in the parallel competition for judges to other courts of Ukraine held by the High Qualifications Commission of Judges of Ukraine (HQCJ). In presence of facts of mismatch of wealth/property and income received, the HQCJ is satisfied with the candidate’s justification that the property was gifted by parents being pensioners, and when there are the facts of adoption of openly wrongful/illegal decisions in the past (such as those against activists of the Maidan), the HQCJ simply ignores them.

In order to overcome veto of the PCIE, it was necessary to hold a joint meeting of the PCIE and the HQCJ, where more than a half of those present including at least a half of members of the PCIE (3 out of 6) voted for each of the 49 candidates. As a result, the veto was overcome in only 7 cases; 42 candidates recognized dishonest by the PCIE left the competition. The law contains the priority criteria for choosing the best candidates at this stage, but we only hope that they will be followed, as the HQCJ has repeatedly taken discretionary decisions in the past.

Out of the 42 candidates who left the competition, 31 – had experience in the judiciary. There is a high probability that they will challenge the results of the competition.

The High Anti-Corruption Court is to start performing its functions no later than mid-June 2019. In political circles, there is information that the HAC may start working in mid-May.

The main obstacles to launching an effective anti-corruption court may include:

  1. Lack of proper funding, as the state budget has not been respectively amended yet.
  2. Low professional competence of judges who may take political decisions.
  3. Extremely high load of the newly created HAC.
  4. The political influence of Oleksandr Granovskyi being Poroshenko’s “curator of the judicial system”.
  5. Pressure of media and anti-corruption activists on the court.
  6. The results of the competitive selection of judges may be appealed in courts and recognized as contradicting the Constitution.
  7. In the case of a broad Constitutional reform, new anti-corruption bodies, including HAC, may be eliminated altogether.