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Taking the slow boat to an Anti-Corruption Court

July 21, 2017

As a search of the historical posts of the blog will amply display, it is something of a fan of the Venice Commission and the wise Opinion (it does not do recommendations, only Opinion) it almost unfailingly produces when asked to assess matters of legal structure, process, and prose.

That robustly remains the case, albeit the Venice Commission is not renowned for speed.  Speed, in all fairness, is not a particularly desirable virtue when dealing with such weighty matters submitted for consideration and resulting Opinion.  And Opinion is worth the wait – on the proviso that those receiving it closely adhere to it, rather than ignore it.

Both internally and externally of Ukraine expectations, demands, and frustrations have seen the absence of a dedicated and independent Anti-Corruption Court steadily rise toward the top of the judicial reform agenda (or lack of it) underway in Ukraine.  “Needless to say there are some significant issues within the Constitutional Court legislation rushed through the Verkhovna Rada on its final day of its final plenary session before parliamentary summer holidays.   The new legislation does not provide for a structure or mechanism to make the 6 parliamentary, 6 presidential, and 6 Congress of Judges appointments subject to any form of open competition.  Thus the most deserving and successful candidates will remain those politically deserving – no differently to what occurs now.

The new grounds for dismissal are both woolly in interpretation and can be equally politically driven (albeit that dismissal is now the sole purview of the CoJ).  The major pluses to the hurriedly passed  legislation are, well, none.

A dedicated Anti-Corruption Court is not going to appear any time soon leaving the anti-corruption institutions to present cases to an unreformed court – and Lady Justice in Ukraine remains a harlot for hire.”

Naturally with a National Anti-Corruption Bureau genuinely attempting to do its best, independent of political interference, to place cases before the current corrupt judicial system hardly brings confidence in a rightful and proportionate judicial outcome.

(Thus far the proposed changes to the Supreme Court do not bring about any confidence either.  It appears to simply arrive at the same probability of political interference but via a different appointment and dismissal route to that which currently exists.)

Quite simply the Ukrainian political class remains too weak to genuinely set the prosecutors and judiciary free from their (all to often nefarious and unwanted) influence.

But pre-election electioneering will begin in the Autumn – there is no doubt.  Elections may not be until 2019 but obvious preparatory acts and the first truly aimed shots will be fired before the year end.  As such the current leadership will soon begin handing out incentives to the electorate.  It will also have to mitigate against any poor commentary from the external supporters of Ukraine that may resonate within the voting constituency, whilst simultaneously not upsetting the domestic power dynamics too greatly to avoid unnecessary (oft behind the curtain) electoral enemies.

As the Anti-Corruption Court (and not an Anti-Corruption Chamber within an existing court structure, as some within the elite would prefer) sits high atop civil society and external support on the rule of law agenda, a way to kick the issue into the long grass is necessary without appearing obstructive.

Lo, on 20th July 2017, two draft laws, “On Anti-Corruption Court” (No. 6011), and “On Amendments to the Law of Ukraine on the Judiciary and the Status of Judges on the introduction of mandatory specialization of judges to deal with cases of corruption ” (No. 6529) were sent, via the Ukrainian parliamentary Speaker to to the Secretary General of the Council of Europe (CoE) for forwarding to the Venice Commission.

A reader would be wise not to expect an Opinion from the Venice Commission on either law within 12 months – July 2018 perhaps the earliest.  Ergo, the Ukrainian leadership can now justifiably state it awaits the wisdom of one of Europe’s most respected institutions before progress can be made.

Naturally upon receipt, the Ukrainian leadership must then mull over the Venice Commission Opinion on both laws and decide what, if any, of the Opinion it will take heed of in any subsequent tweaking to what was originally submitted.

Ultimately it is then a matter of political expediency as to whether the decision to submit “Venice Commission approved” legislation goes to the Verkhovna Rada for vote before or after the 2019 elections.

Thereafter if the draft laws become law there is then the less than timely matter of creating the structures and appointing the personnel.

Thus, sometime in 2020 may reasonably be the earliest an Anti-Corruption Court physically materialises – and 2020/2021 the earliest the first anti-corruption case heard by the new court see a verdict reached.

Therefore should Ukraine actually fully adopt (at least on paper) whatever is within any Opinion returned, the submission of these two laws to the Venice Commission on 20th July now necessarily requires a realistic look at timelines – and to what politico-judicial skulduggery can be expected in the meantime.

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