For the fourth year of the Ukrainian reform of justice, after the formation of the Council on Judicial Reform in October 2014, the question of creating an anti-corruption court in Ukraine is one of the hottest. In the best traditions of national state building, representatives of almost all social stratums, including cultural figures and even clergy, have already been able to express a public position on this matter. Only one of these facts is enough to realize the degree of politicization of the discussion, which in its nature should be purely legal, and what issues in general it imposes on the process of creating such court.
Continuing, on the one hand, to grow in the indicated plane, the discussion on the creation of an anti-corruption court, at the moment, has not yet sufficiently evolved in its professional – legal plane. Therefore, until recently, publicly prevailing abstracts, which have little in common not only with jurisprudence, but also with state formation as such. Most of the proposals that were discussed at a rather high level are absolutely destructive for building the state as a whole, and therefore it is not worth being supported at least from the interests of preserving national dignity.
After the Venice Commission’s adoption of the draft laws 6011 and 6529, which is not rarely shown to be better aware of the provisions of the Constitution of Ukraine than the authors of one of the drafts, the devastating situation for the state began to obliterate (perhaps temporarily).
However, as long as a new bill is not submitted to Parliament and the discussion did not burn with new force, it should be mentioned the main ideas of one of the such bills:
1.Creation of a new body – the Competition Commission for the selection of judges in the anticorruption court;
2. Appointment of members of the new body by the President of Ukraine, the Verkhovna Rada of Ukraine and the Minister of Justice;
3. Appointment of members under the quota of the Minister of Justice solely from the list of persons recommended by the missions of foreign states and international projects for the provision of international technical assistance in the fight against corruption;
4. Assigning such body with key competencies regarding the selection of judges: establishing the results of the contest for judges’ positions in the anticorruption court, while preventing the refusal of the High Qualifications Commission of Judges of Ukraine and the High Council of Justice in approving the results of the contest, and making a submission to the President of Ukraine regarding the appointment of a judge to office;
5. Establishing a special procedure for bringing an anticorruption court judges to the disciplinary liability, namely, upon obtaining appropriate consent of the court of judges’ meeting in which such a judge works, in resolving the issue of the opening of disciplinary proceedings.
So, such an attempt to create abnormal autonomy in the judicial system, which neglects several international standards in the field of independence of judges at once.
1. Thus, when considering the possible creation of a new special body for the selection of judges in anti-corruption courts, it should be noted that such a body, in the event of a positive decision, becomes the third body involved in the formation of a judiciary body.
At the same time, the analysis of the documents of the Committee of Ministers of the Council of Europe and the Advisory Council of European judges testifies that there should be one body responsible for the selection of judges in the state. The fact that in Ukraine such bodies are two, rather is an exception than a rule. Accordingly, any attempts to establish another body, without resolving the fate of the two previous ones, have no legal preconditions.
It should also be recalled that the creation of the High Qualifications Commission of Judges of Ukraine and the High Council for Justice was accompanied by appropriate expert support, in particular the Venice Commission, and international donors. Therefore, the removal of these bodies from the procedure for selecting judges is at least not logical in terms of the implementation of state policy.
2. Regarding the issue of the proposed range of subjects authorized to appoint the members of the Competition Commission, it should be noted that two of them (the President and the Parliament), in accordance with the current legislation, are already involved in the formation of one of the bodies involved in the selection process of judges – the High Council for Justice. In turn, the third entity – the Minister of Justice after the adoption in February 2015 of the Law of Ukraine “On ensuring the right to a fair trial” is excluded from the range of entities authorized to form the composition of the High Qualifications Commission of Judges of Ukraine, and with the adoption in June 2016 Changes to the Constitution of Ukraine – deprived of membership in the High Council of Justice (as successor to the High Council of Justice).
Taking into account the above, there are no logic in the commentary provisions of the bill.
3. The idea of selecting members of a new body with the help of foreign representations and international technical assistance projects requires special attention and immediately raises two issues: the legal nature of the powers of the persons authorized to perform the functions of the state and the issue of state sovereignty.
In accordance with the provisions of the Law of Ukraine “On Central Executive Bodies”, the ministry is a central executive body that ensures the formation and implementation of state policy in one or several areas specified by the Cabinet of Ministers of Ukraine.
Based on the above, it is hard to imagine how, according to the authors of the bill, correspondence and strict adherence to the recommendations received has at least some logical connection with the term “formation and implementation of state policy” and the powers of the person who heads such a government body as the ministry.
However, it is much more dangerous from the point of view of statehood to involve in the process of forming the composition of the body responsible for the selection of judges, international actors, while giving their recommendations the status of compulsory.
The above question prompts to refer to the definition of the term “state sovereignty”, which is guaranteed by the Constitution and is under its protection. Thus, according to Articles 2, 5 of the Constitution of Ukraine: “… the sovereignty of Ukraine extends over its entire territory. The people are the bearers of sovereignty and the only source of power in Ukraine. People exercise power directly and through state authorities and local self-government bodies. ”
As it turns out (considering the publicity and level of discussion), in order to properly understanding and applying the specified provisions of the Constitution, they need to be interpreted. However, such an interpretation has already been provided by the Constitutional Court of Ukraine in 2005 in the case of exercising power by the people (decision No. 6-rp), according to which: “… the provision” the carrier of sovereignty … is the people “establishes the principle of national sovereignty, according to which the power of the Ukrainian people is the primary, the only and inalienable, that is, the bodies of state power and bodies of local self-government exercise authority in Ukraine, which comes from the people “.
Moreover, modern scientifically legal assessment also clearly defines the term “sovereignty” as a political and legal property of the state, which gives it the exclusive right to an independent decision of internal issues.
Therefore, the commented idea does not have any legal basis and the right to exist.
4. Granting the competition commission with exclusive powers to establish the results of the competition for judges’ positions in anti-corruption courts, while simultaneously imposing a ban on the High Qualifications Commission of Judges of Ukraine and the Supreme Soviet to move away from the approved results of the competition, similarly as in the situation with the question of involving the Minister of Justice in correspondence with foreign representations States, raises a reasonable question of the legal nature of the powers of the said bodies and the appropriateness of their existence in general (asp the issue of selection of judges).
After justifying the expediency of adopting the proposed bill, at the same time, one should look for the answer to the question of legitimacy in the eyes of society of the results of their previous activities – thousands of appointed judges throughout the country.
To complete the analysis of the topic of selection of judges would like to rhetorical question – how the proposed mechanism of the bill, in the opinion of its authors, is able to change the situation in the field of selection of judges to the better one, if the six from the nine members of the Competition Commission will appoint entities that, in accordance with the provisions of the current legislation already has to do with the formation of the High Council of Justice – the body that makes the final decision to submit a motion for appointment as a judge.
5. The proposal to establish a special procedure for bringing anticorruption court judges to disciplinary liability (the possibility of opening a disciplinary hearing by the High Council of Justice regarding an anticorruption court judge only after obtaining an appropriate consent for this meeting of judges of such a court), as well as the aforementioned provisions of the bill, completely offset the bases the sole status of a judge. However, in this case, it will be sufficient to recall that the High Council of Justice is a constitutional body, and its powers, unlike the assembly of judges, are determined by the Constitution of Ukraine.
Turning to the analysis of the situation as a whole, it should be noted that the reason for the appearance of the draft law is quite clear. This is a total mistrust the bodies that are currently forming the judiciary, and attempts to ensure the selection of judges in anti-corruption courts on the basis of transparency and objectivity.
The process of selection of judges for the new Supreme Court has shown that such precautionary measures are indeed objective: the bulk of the representatives of the professional environment can not agree that the competition was held in a transparent and objective manner, and the actions of the High Qualifications Commission of Judges of Ukraine and the Supreme Court for the sake of justice – they bring trust.
At the same time, the ways in which the bill 6011 proposed to achieve this goal poses a greater threat to the judicial system as a whole, putting legal constitutional issues that are dubious from the point of view of constitutionality, rather than situational cases of non-transparent selection of judges.
All the above prompts to focus attention on several issues at once.
Judge Status. As was already noted by the Venice Commission, there is no categorical Council of Europe standards for ensuring a single status of a judge. For entities that regularly use documents of the Council of Europe documents in their activities, this situation does not look strange or has gaps in regulation since the systematic analysis of such documents does not allow grounds for allowing judges to be picked up and brought in within one state to responsibility for different procedures, but also different authorities. The main cross-cutting requirement of the main documents on this subject of the Committee of Ministers of the Council of Europe and the Advisory Council of European Judges is that the body that makes decisions on the selection, career or responsibility of a judge must consist of at least half of the judges elected by the judges themselves. Returning to project 6011, it should be noted that even this fundamental principle was not respected in the Competitive Commission.
In addition, paragraph 53 of Opinion No. 15 (2012) of the Advisory Council of European Judges on the specialization of judges provides that: “… the laws and regulations governing the procedure for appointment, resignation, increase, immutability and discipline of judges must be the same as for specialized courts, and for courts of general jurisdiction “. The stated principle should alternatively form the basis of the future bill, which should be introduced in Parliament to replace the two previous ones.
The achievements of previous reforms. As already mentioned above, as a result of judicial reform in 2010 and subsequent years, two bodies involved in the selection, career and responsibility of judges have been formed and operate in the justice system of Ukraine. The composition and method of forming these bodies fully meet the international standards of independence of judges. Today it is a platform for the construction of an independent court in Ukraine. Therefore, consideration of any proposals for the creation of a new body for the selection of judges or the establishment of a fundamentally new order for this – is completely groundless.
However, this does not mean that future judges of an anticorruption court should be elected in accordance with a procedure similar to a contest to the Supreme Court and subsequent scheduled lower courts. Practice shows that the current procedure for the selection of judges requires more transparency, and the activities of the bodies involved in it are more responsible and accountable to society. Unfortunately for the future of the national system of justice, awareness of the value of this approach, which incidentally is a binding constitutional principle of state remains inaccessible (or deliberately offset) for the members of the High Qualification Commission of Judges of Ukraine and the High Council of Justice, which seems more concerned with self-satisfaction from personal career achievements than building an independent and professional Ukrainian court for future generations.
Society trust. A recent poll conducted by the Ukrainian Center for Economic and Political Studies named after Olexander Razumkov shows that the level of mistrust of the anticorruption court has not yet been established is 61.1%, the court system as a whole – 80.9% of the respondents. As rightly noted in the report, it is highly likely that the low level of trust in the courts results from an extremely low level of trust in public authorities as a whole.
These numbers should lead to appropriate reflections by the members of the High Qualifications Commission of Judges of Ukraine and the High Council of Justice on their work, since this situation is also due to the results of their activities. This is particularly the case with the High Council of Justice, which, according to the law, assesses candidates for judicial office for their compliance with the criterion of integrity, professional ethics or other circumstances that may adversely affect public confidence in the judiciary in connection with their appointment.
Thus, on the example of the same contest to the Supreme Court, it can be noted that none of the aforementioned plagues found it necessary to provide proper motivation for their decisions in order to give the society more opportunities for a balanced assessment of this competition. The fact that the composition and method of forming these important bodies for the functioning of the judicial system is in line with the international standards of the independence of judges is indeed the achievement of an independent Ukraine, but today it is obvious that the question of proper awareness of their role and status arises: the exercise of their discretionary powers without proper explanation their own decisions, at this stage of development of the state will not provide public confidence either to them or to the judicial system at whole.
Thus, today there is a need to improve the current procedure for the selection of judges, which in future should become the only one for all courts.
Turning to the specification of the proposals, one should begin with the legislative preconditions for the creation of an anti-corruption court. In particular, this is the provision in clause 16 of the Final and Transitional Provisions of the Law of Ukraine “On the Judiciary and Status of Judges”: “The Highest Anticorruption Court shall be formed and the holding of a competition for the positions of judges in this court shall be announced within twelve months from the date of entry into force of a law that specifies special requirements to the judges of this court “.
In addition, in order to ensure the aforementioned aspects of the creation of such a court in a constitutional way, and which will have a sufficient level of public trust, the future bill should first of all solve a number of key tasks.
Ensure transparency of the selection process for judges. It is possible to achieve this by introducing minimum changes to the effective order established by the Law, namely:
- To ensure open decision-making in the High Qualifications Commission of Judges of Ukraine and the High Council of Justice (without going to the consultative room, all discussions on candidates should be open). Paragraph 28 of Recommendation CM / Rec (2010) 12 of the Committee of Ministers of the Council of Europe to Member States “On Judges: Independence, Effectiveness and Responsibilities” explicitly emphasizes: such bodies should demonstrate the highest level of transparency regarding judges and society, by improving pre-established procedures and making grounded solutions.
- The decisions of the High Qualifications Commission of Judges and the High Council of Justice should be properly motivated so that the external observer could understand the logic and the reasons for the decision. In this case, it should be noted that the law provides for such a requirement to the decisions of the High Qualifications Commission of Judges of Ukraine, however, analyzing the decisions of this body regarding the candidates to the Supreme Court, regarding which the negative conclusions of the Public Council of Integrity were adopted, it becomes clear that this requirement has been completely ignored. It seems that according to the members of the High Qualifications Commission of Judges, this requirement is reduced to the fact of establishing the results of the vote, rather than giving a clear argument why the particular facts cited in the opinion of the Public Council of Integrity have been taken into account or rejected. It would also be useful if the lack of proper reasoning in the decision of the High Qualifications Commission of Judges served as the basis for its return to the High Council of Justice.
- Considering that in the system of justice an institute of public control has already been created and is functioning in the form of the Public Council of Integrity, which cares about the integrity of judges, it is necessary to create conditions for its further institutional formation and establishment as an influential subject in the process of selection of judges. The High Qualifications Commission in its turn should focus on assessing the level of competence of the candidate;
- The High Council of Justice should fully use its powers to assess the eligibility of the candidate for the integrity criterion, which may negatively affect public confidence in the judiciary, relying primarily on the conclusion of the Public Council on Integrity, and thoroughly review the conclusions therefrom, further motivating its decision on the candidate.
To anticipate the optimality of anticorruption courts. The provisions of the Constitution guarantee the right to appeal the case and admit, in cases determined by law, cassation review. The optimal solution of the issue raised should be based on the system of the court system and the structure of the Supreme Court provided for by the Law, and taking into account the high demand of society for justice. Taking into account the above, the jurisdiction of such a court should be extended to the entire territory of Ukraine, and a corresponding chamber in the Cassation Criminal Court should be established to review its decisions.
In resolving the issue of the arbitrariness of anti-corruption courts, taking into account the special requirements for the judges of this court, the request of the society, the constitutional provisions and structure of the Supreme Court, the option of two instances, the first and the appeal, looks more optimal. Consideration of the option to ensure the right to cassational review, with all due respect for the tasks and the role of this stage of judicial proceedings, seems more unfortunate for the state at this historic stage of its development. The introduction of a legal model that will provide for the existence of a cassation instance to review decisions of an anticorruption court will lead to lengthy litigation, which will not justify and without this almost exhausted expectations for creating an effective legal mechanism for responding to comprehensive corruption.
Establish special requirements for judges. It is obvious that the main requirements for an anti-corruption court judge should be: competence and integrity. Moreover, in matters of integrity of a candidate, all claims or doubts should be publicly withdrawn. Repetition of the practice with the contestants to the Supreme Court will result in the effect of the “stillborn child”.
For the rest I would like to draw attention to “The Comparative Analysis: specialized anti-corruption courts” conducted by Matthew C. Stevenson (law professor at Harvard Law School) and Sophie Iron Shutte (Senior Advisor to the Anticorruption Resource Internet Center – U4), presented in March of this year for Supporting the USAID Justice Justice Reform Program, New Justice and the OSCE Project Co-ordinator in Ukraine. The reference comparative analysis gives an opportunity to get acquainted with the practice of creating anticorruption courts in twenty countries of the world and generally evaluate the effectiveness of their activities.
So, the most typical reasons for the creation of an anti-corruption court are: efficiency (due to well-established procedures, as well as higher quality and more consistent solutions in complex branches of law), integrity and competence.
Effectiveness should be ensured by expeditious review of cases, which is ensured by two components: the creation in such a court of a favorable ratio of the number of cases to the number of judges and the appointment of more qualified judges. At the same time, the Benchmarking also notes that sometimes these factors help anticorruption courts to deal faster, but this is not always the case: many anti-corruption courts seem to be as loaded as ordinary courts, and sometimes even more.
In the comparative analysis it is noted that special procedures for appointing judges are insufficient to guarantee their integrity. This is only one potentially useful component of the overall strategy of integrity protection, which may or may not be appropriate depending on the circumstances. The greatest reason for the development of special procedures or conditions of appointment is when the ordinary judicial authorities are particularly vulnerable to excessive pressure or influence in the case of corruption, which can be avoided if an alternative method of electing judges is applied. At the moment, it is still possible to conduct a High Qualifications Commission of Judges and the High Council of Justice for a transparent contest, subject to the submission of additional requirements to them, as discussed above.
In the comparative analysis it is also noted that in the complex experience of the anti-corruption courts of the world shows that despite the quite probable achievements in raising the efficiency associated with the creation of anti-corruption courts, one should not be too optimistic and do not need too much to promise to society, since the implementation of all necessary measures is a rather complicated procedure and potentially poses a lot of risks of failing to implement the idea of an anti-corruption court. The latter is extremely relevant for our state, when it is not unequivocally equated with the creation of such a court to condemn the top corruption-makers of the state, whose periodic detention has become a commonplace since the creation of the National Anti-Corruption Bureau of Ukraine. And although the outcome of such a court, subject to the impartial review by them of properly prepared pre-trial investigation materials, will be consistent with the above, nevertheless, the task of any court is fair and public hearing, but given that this is a criminal case, then with the steadfast adherence to the presumption of innocence.
Viacheslav Panasiuk, Chairman of NGO «Law Development Centre»