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Court is adjourned (for as long as possible)

December 27, 2017

As anticipated, before the year end President Poroshenko submitted to the Verkhovna Rada Draft Bill 7440 relating to the creation of an Anti-Corruption Court, in order to complete the independent NABU and SAP anti-corruption structure – the day after the final plenary session of the year concluded.

The Draft Bill, according to The Bankova, takes into account the “Opinion” of the Venice Commission of 9th October 2017.

Except of course, Draft Bill 7440 does not accommodate all the recommendations of the Venice Commission – as many wise readers would have expected.

Naturally there is a requirement for any anti-corruption judge to have a professionally high qualifying bar.  Draft Law 7440 sets the bar thus – “…..must have considerable experience in conducting professional legal activities in international intergovernmental organizations, or international judicial institutions abroad in the field of counteraction and combating corruption, and have knowledge and practical skills in the application of modern international anti-corruption standards and the world’s best practices in the field of countermeasures and struggle against corruption, the practice of the European Court of Human Rights.”

A particularly Utopian high bar.  Indeed, how many Ukrainian judges can meet such requirements?  In short, too exclusive, rather than inclusive enough.  A slightly lower, more inclusive bar, with more emphasis upon individual integrity is surely a preferred set of parameters.

For an institution created specifically to sit atop the NABU and SAP anti-corruption architecture, the Draft Law does not facilitate the anti-corruption court with jurisdiction over all anti-corruption investigations existing within the statutory mandates of NABU and the SAP to investigate and prosecute.  To be blunt, the entire raison d’être for the anti-corruption court is to hear and adjudicate all the cases of NABU and the SAP.

Further the Draft Law mandates the court with jurisdiction over matters that are not the statutory remit of NABU and the SAP.  Investigations that will fall under the purview of the State Bureau of Investigation and the National Police seemingly will also be heard by the new anti-corruption court.

Clearly not only is there an increased potential for a bottleneck and delays of NABU and SAP cases appearing before the court, but (rhetorical) questions must obviously be asked as to why certain NABU and SAP criminal categories have been deliberately excluded from the purview of the anti-corruption court.

Another issue that will certainly irk the domestic civil society and the international supporters of Ukraine will be the Draft Law’s procedures for the selection of the judges – and rightly so following the farce of the Supreme Court selection process.  A process that not only witnessed a large number of judges of questionable wealth and dubious verdicts succeed, but also maintained presidential influence over the court – albeit via a different route than that which previously existed.

President Poroshenko, like all Ukrainian presidents before him, and in all likelihood whomever will follow him, is simply unable to surrender the prosecutors and judiciary and allow true independence.

The Venice Commission recommended giving international organizations and donors a decisive role in the process of selecting judges has been replaced with “advisory role“.   Thus a farcical Supreme Court selection process “Part Deux” beckons.

All of that said, the Venice Commission “Opinion” and “recommendations” therein, are not binding upon any government that asks for, and receives said “Opinion”.  Ukraine is at liberty to incorporate all, some, or none of those “recommendations” as it sees fit and without penalty.

So be it.

Except that Ukraine is not sufficiently strong to ignore its “international supporters”, who will undoubtedly have reservations over Draft Law 7440 – especially the exclusion of some NABU and SAP investigation categories from the anti-corruption court competency.

The Bankova will have been very much aware of this when Draft Law 7440 was drafted – and it has been deliberately drafted thus just the same.  It will perhaps be expecting another diplomatic collision.  Many readers will be anticipating such a collision too – when the time for another public collision arrives.

However, there is a game to be played before any such collision occurs publicly.  No doubt a few “private words” have been exchanged already.

Lest a reader forget, The Bankova goal is to delay (if unable to prevent) a fully operational and genuinely independent anti-corruption court before the presidential and Verkhovna Rada elections of 2019.  All must be allowed to assume their electorally mandated roles with the associated immunity and impunity before any such court functions.

However, having submitted Draft Bill 7440, The Bankova has kept its word, albeit hardly overflowing with “goodwill”, in submitting a Draft Law to create the Anti-Corruption Court before the end of 2017.

That it is not entirely inclusive of the Venice Commission “Opinion” is no surprise.  Civil society will now be forced to decry the deliberate shortfalls within the Draft Law.  There are no real options open to it other than to demand the Draft Law be withdrawn, amended to correct the above, and resubmitted.

That may take several months, as The Bankova will be in no hurry.

Alternatively, The Bankova may decide to allow the Verkhovna Rada to vote on the Draft Bill as it currently stands.  It will very much irk civil society, and indeed create a required public response from the “international supporters” and diplomatic community of Ukraine.

If it is voted down, then a new Draft Law will have to be crafted and submitted, which will take a month or so.

Should it pass as currently written, the first reading of a Bill hardly ever remains the same as what passes into statute.  The bureaucratic process of amendments will then occur.  As will more “public consultations”.  This too will take several months.

More external diplomatic energy will be expended – although President Poroshenko will have to be particularly careful not to lose his “least worst option” label among the “friends of Ukraine”.  (It is a label he is perhaps closer to losing than he thinks – during Summer 2018 it will become clear whether he has lost it).

Regardless, however Draft Bill 7440 reads today, it is very unlikely to be the final text that creates an independent (or “independent”) anti-corruption court in Ukraine.  That is has been deliberately so written as to be clearly problematic to civil society and the “international friends of Ukraine” infers that it has been done with the intent to buy electoral time through generating as many bureaucratic delays as possible, while being seen to be doing something, rather than being a draft statute with any expectation that the legislative text will survive without (perhaps serious) repercussion.

Eventually, however, some form of anti-corruption court law will become statute – then for a deliberately slow candidate selection process.

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