Which draft law is better?
Expert evaluation of four draft laws provides for the following conclusion: they all have substantial deficiencies. Nonetheless, experts believe that it would be most effective to review and improve the president's draft law. Firstly, its content is a bit better than that of others and secondly, its status will most likely help it gain support of the majority factions.
At the same time, commentaries of the public sector, enhanced and detailed by the Scientific Advisory Board of the VR as well as fundamental recommendations of the Venice Commission must be taken into account. Experts of the Radical Party also have their own remarks.
Who should appoint the judges?
Conceptual differences of the draft laws lie primarily within the procedure of selection of judges and composition of the court. The president's draft law envisages that the Supreme Qualification Commission of Judges of Ukraine and the new Civil Council of International Experts introduce a recommendation for the Supreme Justice Council, which in turn makes the decision and sends the proposal to the President on nominating a person for the position of a judge.
Alternative draft laws offer other procedures, but I will not review them in detail.
I believe that taking into account the experience of European countries and with the objective of ensuring maximum assessment of fairness of judges of the anti-corruption court, we need to envisage a mechanism in the law to involve experts with international experience in their selection and provide them with the right of deciding vote.
This could be the Civil Council of International Experts, as is foreseen by the president's draft law. However, it is not enough just to grant it an advisory vote, because then its recommendations could be simply ignored and only the people loyal to the presidential administration would be appointed. We need to envisage a veto right for the Council of International Experts, at least in regards to the candidates that, in their opinion, do not meet the requirements set forth by the law. Naturally, substantiation will have to be provided in this case. This approach will, on the one hand, settle the issue of impotence of the public in terms of controlling the process of selection of the judges and on the other hand will ensure support of the international community and our western partners in determination of a candidate's integrity. Such level of legitimization – with bilateral support both by qualification commission and international experts – will be the highest in the judicial system. This will hopefully also provide high level of support regarding the decisions such a judge makes.
However, this, again, leaves the mechanism for the presidential team to block appointment of the judges that are not loyal, as we can now observe with the judges of other courts. By the way, because of this problem, the Ukrainian judicial system is falling short of staff – the queues for consideration of court cases are enormously large. In some cases, the trials are already being set for autumn. That is why the document must contain provisions, within the framework of the Constitution, that would prevent the president from dragging out the process of appointment of judges of the anti-corruption court.
Who can become a judge?
Draft laws introduced to the parliament propose different number of judges for the new Supreme Anti-corruption Court, ranging from at least 40 to at least 70. In some cases, the authors even propose to set quotas: at least 10% scientists, 10% lawyers, 10% people with experience in fighting corruption at international organizations.
The presidential draft law does not provide minimum or maximum number of judges, instructing the State Judicial Administration and Supreme Council of Justice to set it. At the same time, it is envisaged that the court is legitimate and can operate with two thirds of the set composition. Instead, the Supreme Court must have full composition in order to operate, the parliament's expert department argues. The same approach should be applied to the Supreme Anti-corruption Court of Ukraine (SACCU).
At that, taking into account the expected overload of cases in the first years of operation, the number of judges in this period must be the highest possible with the possibility of their reduction as the load decreases. There are also some commentaries regarding criteria and requirements to the candidate, which are even more serious than for the candidate to the position of a Supreme Court judge. Specifically, in regards to ambiguous criteria of 'extended experience' in introduction of top global anti-corruption practices, work in international judicial bodies and non-government organizations. These criteria are applied in addition to the standard judicial experience and clearly require more specific wording.
Risks of assessment
The draft law determines that assessment of a SACCU judge can be performed based on information received from private individuals and legal entities, media and other open sources, containing data on inconsistence of a person's living standards to property and income declared by them.
This is a disputable issue, as it can be used by corrupted officials to apply pressure on a judge. Here's a simple example – corrupted officials paid to have fictitious information about alleged corrupt actions of a judge in mass media and then used it to enter into a conspiracy with corrupt officials of the prosecutor's office. As a result, Prosecutor General Office opens criminal proceedings based on fake information in the media and then uses this, factually fictitious criminal investigation to apply pressure on the judge and the National Agency for Preventing Corruption.
This example shows the existing and widely spread mechanism of how corrupted officials influence judges, officials, politicians and business through law enforcement bodies in Ukraine with the purpose of receiving illegal financial benefits, political dividends or favorable decisions.
Finally, here is an example of a provision, which at first glance looks progressive, but could be used to influence the process of selection of judges by the authorities if not specified. The draft law contains a provision that a judge must take a polygraph with the objective of receiving information about possible violations, facts of illegal influence on the judge, hidden motives behind his rulings. Refusal to pass the polygraph in the absence of medical counter indications is grounds for bringing the judge to disciplinary responsibility.
In conditions of total corruption in the government and society, it will be very easy to get a fake medical certificate and avoid being tested on the polygraph. Even without such certificate, any corrupted official can set up their own expert polygraph center and not only obtain a certificate of successful passing, but also make money on such fake certificates.
That is why a single international body should be determined for assessing SACCU judges using polygraph.
As a summary
Success of any reform depends on three elements:
- approval of the law and all required by-laws;
- quality of these documents (they must be improved in the process of implementation of the reform);
- quality of implementation of the reform.
This means that in order to form an effective and independent system of bodies to fight corruption, we first need to closely review and refine the draft law on Supreme Anti-corruption Court and then control its enforcement. And this is something that cannot be put off.