We, undersigned, express deep concern regarding the EU waiving its request to Ukraine for a separate anticorruption court establishment, which was announced by the President of the European Commission, Jean-Claude Juncker, in Kyiv.
At the press conference on July 13, 2017, in the follow-up of the Ukraine-EU Summit, Mr. Juncker said: “Till now the EU was requesting from Ukraine to create a special court in charge of corruption affairs. Now we agreed this morning that if Ukraine would introduce in its judicial system a chamber dedicated to dealing with this that would be sufficient.”
We are concerned that this position might be ambiguously interpreted by the Ukrainian and international partners who have been ardently supporting the establishment of a separate anticorruption court and the autonomous anticorruption chamber at the new Supreme Court. To prevent different interpretations and potential manipulations with the statement of the European Commission President, it is necessary to publicly clarify his stand.
It is especially important given the fact that the stand voiced by Mr. Juncker contradicts previous EU requirements concerning establishment of a separate anticorruption court in Ukraine.
Thus, the official position of the EU, voiced by Commissioner Hahn on June 1, 2017, focused on the requirement to establish a separate anticorruption court. Even earlier in September 2016 he has stressed the need to launch the anticorruption court in Ukraine as soon as possible. He also confirmed that the international community is ready to participate in the selection of judges. This position was supported by the EU Ambassador to Ukraine, Hugues Mingarelli, who also expressed his doubts that an alternative variant in the form of anticorruption chambers can be effective. Moreover, the vision concerning establishment of a separate anticorruption court and introduction of additional guarantees for an independent selection of anticorruption judges was reflected in the common statement of international donors presented on June 16, 2017. Among its authors and signatories are representatives of the EU Delegation to Ukraine, the European Union Advisory Mission in Ukraine, the EU Anticorruption Initiative in Ukraine, the OSCE Project Coordinator in Ukraine, the United Nations Development Program, the American Bureau of International Narcotics and Law Enforcement Affairs, the USAID New Justice program, the American Chamber of Commerce in Ukraine, as well as a whole range of non-governmental organizations.
The Secretary of State Rex Tillerson, United States Ambassador to Ukraine Marie Yovanovitch, Italian Ambassador to Ukraine Davide La Cecilia, President of the Venice Commission Gianni Buquicchio and others have voiced their support for the establishment of a separate anticorruption court.
Last but not least, the necessity of establishing a High Anticorruption Court is formalized as a commitment in the Memorandum between Ukraine and the IMF of March 2017.
The previous stand of the EU concerning the establishment of a separate anticorruption court fully reflects the position of not only numerous specialized Ukrainian non-governmental organizations, but also of the National Anticorruption Bureau of Ukraine. The National Anticorruption Bureau of Ukraine (NABU) calls for setting up a separate court and explains why establishment of anticorruption chambers not only fails to solve the problem with the lack of verdicts in the cases involving high-ranking corrupt officials, but, on the contrary, aggravates it.
Finally, it is the Law of Ukraine “On the Judiciary and the Status of Judges”, adopted back in June 2016, that provides for the establishment of the High Anticorruption Court of Ukraine as a court of first instance.
We support establishment of an anticorruption chamber at the Supreme Court as the last instance of cassation to consider the cases of high-level corruption. However, it will be a mistake to set up such chambers at the non-reformed local or appellate courts, as it might aggravate the problem of sabotage and biased consideration of cases concerning high-level corruption. We would like to emphasize that establishment of the High Anticorruption Court of Ukraine as a court of first instance is the most effective way to ensure prompt, independent, and fair consideration of cases involving corrupt officials. To establish this court, it is critical to formalize additional guarantees of transparent and independent selection of judges which shall be conducted by a special panel whose members will be recommended by the international partners of Ukraine and will be independent of any internal groups of interest or impact. The Anticorruption Court without additional guarantees of independent selection of judges will become a cover-up for the old system of politically dependent judiciary.
Therefore, we would like to appeal to Mr. Juncker with a proposal to meet with non-governmental organizations of Ukraine. During this meeting we would like to explain in details the risks and the threats of establishment of anticorruption chambers at the courts of lower instances.
We would like to stress that consistent cooperation between the civil society and the European Union allowed Ukraine to make a significant progress in establishing a system for independent and professional investigation of high-level corruption and to launching an electronic system of asset declarations of public servants. However, in order to preserve the successes of previous three years of fruitful joint work and to achieve tangible results in the fight with corruption it is crucial to introduce the independent judiciary mechanism which is being decided now.There will be no more second chance for the anti-corruption reform to succeed.
This appeal is signed by:
Reanimation Package of Reforms, anticorruption expert group, judicial expert group
Аnticorruption Action Center
Transparency International Ukraine
Centre for Democracy and Rule of Law
Centre for Political Studies and Analytics “EIDOS”
Centre for Economic Strategy
Center for Local Self-Governance
Centre for Policy and Legal Reform
The problems with high-level corruption cases are mostly concentrated at the courts of first instance: consideration of one third of the cases submitted to the courts has not even started (24 cases out of 75); some of them have been pending for more than a year; a lot of cases are blocked by the investigative judges at the stage of pre-trial investigation.
Moreover, the non-reformed courts of first instance adopt politically motivated judgments when it comes to the officials suspected of corruption: in particular, former MP Mykola Martynenko, who is suspected by the NABU of inflicting damages to the state in the amount of more than 17 million USD, has been released on personal recognizance, while ordinary Ukrainians who steal anything worth several dollars are arrested for several months.
The courts of the first and the appellate instances have not been reformed yet. New judges have not been recruited to these courts, while the whole process of change can take up to five years at best. Thus, establishment of chambers at the existing courts will mean that the status of anticorruption judges will be given to the judges who impede consideration of cases by the NABU and adopt politically motivated judgments.
Selection of new judges to the anticorruption chambers at the local and appellate courts will take much longer than establishment of a separate anticorruption court. There are about 600 local courts in Ukraine, so the newly established chambers will require 1,800 judges, whereas only 150 judges shall be recruited to launch a separate anticorruption court.
Judges of the High Anticorruption Court, who will be pressurized by the corrupt political elite, will require additional security guarantees for themselves and their families. Establishment of anticorruption chambers at the local courts will also make it more difficult to ensure the safety of judges all over the country.