High Anticorruption Court

Establishment of the High Anticorruption Court, as a key institution ensuring punishment for committing corruption cases. It is expected to be in full operation by the beginning of 2019. The Public Council of International Experts involved in the process of selection of the judges to the High Anticorruption Court will assure competitive selection of the best professionals.

Completion Status:
Fulfilled

Commitment filtering:

Specific:yes

The commitment targets the establishment of a specific anti-corruption institution and outlines the specifics of its launch and an approximate date for the start of operation. It states a specific requirement for the process of the selection of judges to be competitive with an additional filter, the Public Council of International Experts. The commitment is recognised in a memorandum between Ukraine with the IMF[1] and in the EU Macro-Financial Assistance[2] conditionalities.

[1] UAWire, IMF welcomes creation of Anti-Corruption Court in Ukraine, 20 June 2018, https://www.uawire.org/imf-welcomes-creation-of-anti-corruption-court

[2] European Commission, Macro-Financial Assistance to Ukraine: Disbursement of the First Instalment, 30 November 2018, https://ec.europa.eu/info/sites/info/files/economy-finance/information_note_-_mfa_ukraine_1st_instalment.pdf

Measurable:yes

The commitment is measurable as it provides a set of indicators, such as the court’s establishment and its mandate, involvement of the Public Council of International Experts. However, it has some indicators that are hard to monitor objectively, such as “selection of best professionals.”

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Evaluation:

To relaunch the whole court system in Ukraine would have taken five to seven years. Therefore, civil society and international partners saw the opportunity to resolve the issue in around two years with the introduction of the specialised anti-corruption court, the High Anti-Corruption Court (HACC).1 It was a civil society demand to have the international council as an additional filter2 on integrity for the judges as they did not trust the existing High Council of Justice (HCJ) and High Qualification Commission of Judges (HQCJ) to select the HACC judges. The Public Council of International Experts (PCIE) consisted of six members with impeccable business standing and significant professional experience. Four of them have been judges, and two were prosecutors. They assessed the backgrounds of the candidates and interviewed them, serving as an additional filter to the work of HCJ and HQCJ for the integrity of judges.

The HACC began3 its operations on 5 September 20194 with the law5 that was adopted in June 2018. The establishment of a judicial institution was difficult6 in political and legal terms7 as during the Yalta European Strategy (YES) conference, the president,8 prosecutor general and the prime minister all said that there was no need for such an institution in Ukraine. The adoption of the legal framework was delayed, there were also problematic issues9 regarding the cases, subject to the jurisdiction10 of the HACC, as attempts were made to block the transfer of cases that were already at trial stage. It was suggested that appeals against such cases should be carried out by general criminal courts. During the formation of the HACC, the Public Council of International Experts11 was actively involved12 in the selection of judges, and although it had an advisory role, it was an effective filter for eliminating candidates that were not of high integrity. Currently (October 2020), the court is fully operational, and the volume of sentences is approaching two dozen. Meanwhile, society’s distrust of the courts in general is 77.5 per cent,13 the lowest among all other government institutions.

Challenges to effective commitment implementation
The HACC is becoming a target for media attacks by opponents of anti-corruption reform. Members of Parliament (MPs) are also applying pressure through appeals to the Constitutional Court of Ukraine14 to declare the HACC inconsistent with the constitution of Ukraine and offset all anti-corruption reform.

Another challenge is the HACC Appeal Chamber does not have any permanent premises. Even though it has been operating for more than a year, the government has not yet provided suitable premise in possession to comply with the security needs for the judges. The IMF has included this issue in their memorandum with Ukraine.15

Opportunities to accelerate commitment implementation
The HACC needs assistance with their communication strategies. The website, for example, is not user-friendly. People are mostly only aware of the negative aspects of its work, and public trust is crucial for such an institution and where the courts already have little public support. According to a survey conducted in July 2020, 70 per cent of the public do not trust the HACC.13

Recommendations
Enhance safety and security for HACC judges since they deal with major anti-corruption cases, and are at risk of physical attacks and threats. There is currently a lack of state funding for this.

Judicial reform,16 especially of the High Council of Justice and High Qualifications Committee of Judges need to be relaunched, and high integrity candidates with impeccable qualifications need to be selected.

The Supreme Court has to ensure the unity of judicial practice in all corruption crimes, including those considered by the HACC and other courts.

Sources:
  1. U4, Ukraine’s High Anti-Corruption Court: Innovation for Impartial Justice, https://www.u4.no/publications/ukraines-high-anti-corruption-court
    2020
  2. TI Ukraine, Battlefield: How High Anti-Corruption Court Was Established in Ukraine, https://ti-ukraine.org/en/news/battlefield-how-high-anti-corruption-court-was-established-in-ukraine/
    20 December 2019
  3. TI Ukraine, High Anti-Corruption Court Comes into Operation, https://ti-ukraine.org/en/news/high-anti-corruption-court-comes-into-operation/
    5 September 2019
  4. USAID, USAID New Justice Program Congratulates the High Anticorruption Court on the Launch, https://newjustice.org.ua/en/news/usaid-new-justice-program-congratulates-the-high-anticorruption-court-on-the-launch/
    5 September 2019
  5. Verkhovna Rada, Про Вищий антикорупційний суд, 2018, https://zakon.rada.gov.ua/laws/show/2447-19#Text
    ·
  6. UNIAN, IMF Criticizes Poroshenko’s Draft Law on Anti-Corruption Court, https://www.unian.info/politics/2347007-imf-criticizes-poroshenkos-draft-law-on-anti-corruption-court.html
    15 January 2018
  7. Council of Europe, Documents by Opinions and Studies: Ukraine, https://www.venice.coe.int/webforms/documents/?opinion=896&year=all
    ·
  8. Kyiv Post, Poroshenko Rejects Anti-Corruption Courts Once Again, https://www.kyivpost.com/ukraine-politics/poroshenko-rejects-anti-corruption-courts-2.html
    15 September 2017
  9. Ukraine Crisis, High Anti-Corruption Court Starts Work in Ukraine: How Will It Operate?, https://uacrisis.org/en/73207-high-anti-corruption-court
    6 September 2019
  10. TI Ukraine, HACC Jurisdiction Under New Draft Law, https://ti-ukraine.org/en/blogs/11858/
    9 July 2019
  11. The Global Anticorruption Blog, Ukraine’s Bold Experiment: The Role of Foreign Experts in Selecting Judges for the New Anticorruption Court, https://globalanticorruptionblog.com/2020/03/02/ukraines-bold-experiment-the-role-of-foreign-experts-in-selecting-judges-for-the-new-anticorruption-court/
    2 March 2020
  12. TI Ukraine, PCIE Is Ready to Veto 12 More Candidates for the High Anti-Corruption Court, https://ti-ukraine.org/en/news/pcie-is-ready-to-veto-12-more-candidates/
    9 January 2019
  13. Razumkov Centre, Початок нового політичного року: довіра до соціальних інститутів, https://razumkov.org.ua/napriamky/sotsiologichni-doslidzhennia/pochatok-novogo-politychnogo-roku-dovira-do-sotsialnykh-instytutiv-lypen-2020r
    4 September 2020
  14. Constitutional Court of Ukraine, A Constitutional Petition Regarding Constitutionality of the Law of Ukraine “on the High Anti-Corruption Court” Was Filed to the Court, http://www.ccu.gov.ua/en/novina/constitutional-petition-regarding-constitutionality-law-ukraine-high-anti-corruption-court
    2020
  15. National bank of Ukraine, IMF-Ukraine: Letter of Intent and Memorandum of Economic and Financial Policies, https://bank.gov.ua/en/files/mVURYkPNyUdMilR
    9 June 2020
  16. DeJure Foundation, Judicial Reform Roadmap, http://en.dejure.foundation/judicial-reform-map-eng
    2020

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