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Anti-Corruption Courts – Ukraine

February 18, 2017

About a week ago an entry appeared relating to the latest public report by the National Anti-Corruption Bureau of Ukraine (NABU).

Within the issues raised of that poorly written prose was the glaring issue of a very large number of NABU cases subject to a bottleneck within the still corrupted judicial system –  “Clearly the bottleneck, or more accurately point of due process constipation, can be attributed to the courts and judicial system.

The requirement for a specialised anti-corruption court is made not only by reason of appointing only the most unsullied of unsullied judges to such a court for reasons of integrity, but also to avoid/reduce (the probably deliberate) due process backlog.

However the functioning of the courts are not the remit of NABU – other the than busting corrupt judiciary which certainly is within its remit.”

So what is being done regarding these issues?  A dedicated anti-corruption court is an obvious requirement that has been on the political agenda (both foreign and domestic) for more than 2 years.

During those 2 years (and more) the subject has been raised during numerous private conversations with diplomats.  (Several ideas have been muted, including the placement of foreign judiciary within the ranks of any Ukrainian anti-corruption court – an idea it has to be said that the blog somewhat pooh-poohed for constitutional reasons and the undoubted appeals regarding the finding of guilt in a Ukrainian court by a judge that is not a Ukrainian citizen – at least as far as a court of first instance is concerned.)

So where is Ukraine at insofar as getting anywhere near the creation of a dedicated anti-corruption court (and appeals) system, and how and who will appoint Ukrainian judges unsullied by corruption to such a critical institution?

Who decides which judges are unsullied (or unsullied enough) to sit on the bench of an anti-corruption court (and necessarily independent appeals court chamber).  As always, who decides who decides?

It would appear that Egor Sobolev, Chairman of the Verkhovna Rada Committee on Corruption prevention and Counteraction (and one of the few MPs who seems to be morally upright when it comes to a genuine stance against corruption) together with the rather scholarly and fairly effective NGO Reanimation Package of Reforms (RPR) have arrived at a solution not dissimilar to that of Croatia and Slovakia – with the necessary Ukrainian twist regarding who decides who decides upon the judges appointed.

Draft Law 6011 is the result (though whether it will pass without significant tinkering, or remain without significant amendment once passed – if it passes at all – remains to be seen).

When it comes to who decides upon the judges selected for an independent and purely anti-corruption orientated court, and a specialised and a independent chamber within the Supreme Court to deal with anti-corruption appeals, it is expected that 33% of the assessment/selection panel will be foreigners.  (Which foreigners and from where is unclear but that is a matter that will be swiftly dealt with by longstanding foreign funders of judicial reform no doubt.)

The remaining Ukrainian members of the selection committee cannot have been part of any other judicial selection committee (or presumably by extension involved any half-arsed attempts at judicial lustration).

Only candidates selected by the committee charged with selecting anti-corruption judges can be considered for the role.  No other committees nor candidates will be allowed influence, interference or participation.

As already stated, successful judges will form an insulated anti-corruption court and also within the Supreme Court a dedicated appeals chamber will be created.  Pay and perks for successful candidates equal to the highest paid judiciary in the land.

The staffing of this new institution that will insure its administrative functioning, once the judges are selected, will not be the responsibility of those judges alone.  That staffing will also involve  the committee that selected the judges.

Importantly, indeed critically, the anti-corruption judicial entities will have its own independent and dedicated budget proscribed into law, will be situated in a separate and dedicated building, and employing a separate insulated documentation system.  In effect the anti-corruption judiciary work place will be quarantined as far as is practicable to do so, both physically and electronically, from the rest of the Ukrainian due process system.

If it all seems too good to be true, for if adopted unchanged it would mark an enormous stride forward in the anti-corruption fight, it probably is.

Nevertheless, the attempt at quarantining the selection committee free from members of other judicial selection committees (and loading it with 33% of foreigners) is a valiant attempt at keeping the undoubted political interference in committee selection to a minimum.

The physical and electronic workplace quarantining of those eventually selected is simply necessary in an environment where even if the processes and institutions become more  independent and transparent, a majority of those within the legislature and executive remain for the most part morally and ethically bankrupt.

We will now see how long it takes Draft Bill 6011 to be considered by the Verkhovna Rada.

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