What’s Holding Ukraine Back Isn’t What You Think It Is

Ukrainian former lawmaker Mykola Martynenko (L), who is under investigation over the suspected embezzlement, speaks during a court hearing in Kyiv, Ukraine, April 21, 2017. REUTERS/Valentyn Ogirenko

President Petro Poroshenko has just done an about-face. On October 4, Poroshenko announced that he supports the creation of a specialized high anticorruption court, and that he soon will submit a draft law marked “urgent” for the court’s creation.

However, the president suggested the creation of a multiparty parliamentary working group to develop such a draft law, which is worrisome. A working group is often a place where legislation goes to die in Ukraine.

Civil society and foreign partners should use all the leverage and technical assistance they can muster to ensure that the draft law is ready as soon as possible.

Until recently, Poroshenko appeared dead set against the court’s creation. In September at the Yalta European Strategy conference in Kyiv, he spoke against the idea of establishing a separate institution, implying that only “Third World” counties have anticorruption courts.

But this change of mind is exactly what Ukraine needs. The creation of a specialized high anticorruption court is Ukraine’s only chance to build a justice system independent of the current ruling class.

The main logic behind establishing an anticorruption court is that it is needed to complete a new anticorruption ecosystem, which consists of the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor’s Office (SAP).

Since its creation in 2015, NABU has carried out several high-profile arrests in embezzlement probes, including those of the country’s tax agency chief Roman Nasirov and Mykola Martynenko, a key ally of ex-Prime Minister Arseniy Yatsenyuk.

But with bitter irony, ordinary Ukrainians compare the arrests of high-level officials to “catch and release” fishing. Not a single politician is in jail. In August, the director of NABU, Artem Sytnyk, lamented that every fourth case submitted to the courts by NABU and SAP is sabotaged. Hearings do not start for six months or more. According to Sytnyk, the tendency is to punish those who work on lower operational levels rather than the organizers of graft schemes.

The establishment of a specialized high anticorruption court is outlined in the law “On the Judicial System and the Status of Judges,” which was submitted by the president and adopted in 2016; it is part of Ukraine’s commitment to its international partners, including the International Monetary Fund. A new law on the anticorruption court should be adopted to launch the process, and this court will specialize in NABU and SAP cases only.

In the past few months, as the debate over the court has intensified both inside Ukraine and among Ukraine’s international partners, it has become increasingly confusing to determine which justice formula one should support: a court, a chamber, or many chambers.

Below are the three main arguments used by the government and commentators to oppose the anticorruption court. 

1. We don’t need a separate court; we need a chamber or chambers.

Instead of an anticorruption court, some have suggested Ukraine establish chambers in the existing court system, often using the words “chamber” and “chambers” interchangeably. But “a chamber” and “chambers” are two different concepts.

“A chamber” refers to establishing a cassation chamber in the Supreme Court of Ukraine. If the anticorruption court is in place, this architecture makes sense. However, without a new independent anticorruption court in place, graft cases will remain stuck in courts of general jurisdiction of the first-instance and may never reach the point of cassation.

“Chambers” refers to the creation of units of specialized judges in the existing courts of general jurisdiction. This would involve the selection of at least 1,800 judges in Ukraine, which would take practically forever. If the selection process of 120 Supreme Court judges took more than nine months, one can only imagine how much time will be needed to select 1,800 judges. In contrast, the high anticorruption court would need only 150 judges to operate.

Apart from the time factor, the problem with chambers is that there is no legal mechanism to ensure the independent selection of judges within the existing system. Transparency International, the Anti-Corruption Action Center, and the Venice Commission have clearly explained why the chambers idea will not work and why it has the potential to undermine anticorruption reform in Ukraine.

2. An anticorruption court requires changing the constitution.

Article 125 of the Ukrainian constitution prohibits the creation of a special or extraordinary court, which were meant to avoid the repetition of Soviet judicial practices of setting up “troikas” without any proper procedures.

The constitution, amended in 2016, does allow specialized high courts within the existing judicial system. According to the Venice Commission, a high anticorruption court has the clear characteristics of a specialized court, rather than a special or extraordinary court, and thus does not jeopardize the unity of the judiciary.

Contrary to Poroshenko’s statement, specialized anticorruption courts exist not only in Africa but also in Croatia, Bulgaria, and the Slovak Republic.

3. The procedure for the selection of judges will be unfair, so what’s the point?

A competitive and open selection process under the scrutiny and participation of civil society and the international community is the key to a fair selection of judges. Such a selection process is possible only in the case of establishing an anticorruption court.

Judges of the specialized high anticorruption court can be selected through a modified procedure with lessons learned from the Supreme Court experience. A specialized court may have special requirements for its judges; therefore, in this case additional filters in the selection procedure are possible.

The Venice Commission rejects the idea in the existing bill of designing a body in charge of the judges’ selection composed of the president, parliament, and the ministry of justice. The commission recommended additional safeguards to ensure that the procedure for appointing judges is independent of the executive and legislative powers. For example, the High Qualification Commission of Judges, or rather a special panel within it, can be given the right to nominate members to that body—subject to the role of international donors.

The arguments against the anticorruption court aren’t based on fact and they simply do not hold up. 

Western friends of Ukraine should push for the adoption of a law now and put a stop to the endless debates over the wording of the new court. Ukraine needs a fully independent specialized anticorruption court. Full stop. Corruption and lack of trust in the judiciary are beginning to affect the investment climate in Ukraine more than the conflict with Russia.

Olena Tregub is a Millennium Fellow at the Atlantic Council and is the Secretary General of the Independent Defence Anti-Corruption Committee, an international civic body created by Transparency International Defense and Security.