Along with latest discussions in media about possible establishment of a Specialized Аnti-Corruption Court, and discussions among international partners of Ukraine, 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.
Firstly, 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. However, according to the same line of thought, there may be Anti-Corruption Chambers within unreformed courts of the first and appellate instances. 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 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.
We emphasize 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 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 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, 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.
Scheme in HQ: https://www.flickr.com/photos/nab_ukr/36658431974/