Venice Commission invites Poroshenko to submit his own anti-corruption courts bill
The Venice Commission has invited Ukrainian President Petro Poroshenko to promptly submit his own draft law on anti-corruption courts that will be based on the Venice Commission's recommendations.
This is stipulated in the Venice Commission's conclusions approved and made public on Friday, October 6, the press service of the Council of Europe has told an UNIAN correspondent.
"In its opinion on the draft law on anti-corruption courts in Ukraine adopted today, the Venice Commission said that many of the provisions of the draft law provide a good basis for the establishment of a high specialised anti-corruption court, but made several recommendations to reduce the risk that it could be considered unconstitutional. In order to dispel any doubts about the constitutionality of the legislative procedure, the Venice Commission invites the President of Ukraine to promptly submit his own draft law on anti-corruption courts – which should be based on the Venice Commission's recommendations. The current draft law (Draft Law No. 6011) thus needs to be withdrawn," it said.
Read alsoPoroshenko wants separate anti-corruption courtThe Venice Commission stresses that corruption is one of Ukraine's major problems, parts of the judiciary itself have for many years been considered as weak, politicised and corrupt, and its ongoing reform – which is promising and to be strongly supported – will take several years to complete. "The only way forward in the fight against high-level corruption in Ukraine is the prompt establishment of a high specialised anti-corruption court (HACC), as foreseen in the Law 'On the Judicial System and the Status of Judges,' whose judges are selected in a transparent procedure with international involvement," the Venice Commission said.
It noted that the HACC has clear characteristics of a specialised court, rather than a special or extraordinary court, and thus does not jeopardise the unity of the judiciary. "However, deviations from the general rules should be limited to what is necessary for the anti-corruption courts to work effectively, and care must be taken to avoid the possible impression that anti-corruption judges are of different or privileged class of judges. The level of remuneration for the HACC judges should be reconsidered; it should be commensurate with the increased demands of their position but should not differ too much from generalist judges' remuneration," it said.
Read alsoNABU calls on Poroshenko to veto changes to Criminal Procedural CodeThe Venice Commission says that the key components of the current draft should be maintained, namely the establishment of an independent HACC and appeal instance whose judges are of impeccable reputation, adequately protected and are selected on a competitive basis in a transparent manner. "Temporarily, international organisations and donors active in providing support for anti-corruption programmes in Ukraine should be given a crucial role in the body competent for selecting specialised anti-corruption judges, similar to the role envisaged for them in draft law No. 6011. The international involvement seems to be justified in the specific situation in Ukraine, with due regard to the principle of Ukraine's sovereignty," it said.
However, the Venice Commission says that the fact that according to the draft the members of the body in charge of the selection of the judges of the court are designated by political figures and institutions (the President and the Verkhovna Rada – and the Minister of Justice, though with limited discretion) gives rise to concern.
"Additional safeguards should be introduced to ensure that the procedure for the appointment of judges is independent of the executive and legislative powers. This could be achieved, for instance, by giving a non-political agency such as the High Qualifications Commission of Judges the right to nominate members to that body," it said.
The Venice Commission has also examined an alternative bill, the draft law of Ukraine on the introduction of mandatory specialisation of judges to consider corruption offences (draft Law No. 6529). "The draft deviates from the current law and international obligations of Ukraine to set up a specialised anti-corruption court. The Commission cannot see how the appointment of specialised judges in all courts in Ukraine could be justified and be implemented in practice. It appears questionable, the Venice Commission stresses, whether the referral of all kinds of corruption-related offences to the specialised judges would be an effective tool for enhancing the fight against high-level corruption in particular," it said.
The scope of competences of the specialised judges under the draft law in question is unclear, and the absence of any specific safeguards in the selection procedure and of any specific measures to protect the judges' independence and safety is highly unsatisfactory, the Commission says. It concludes that these shortcomings conflict with the CoE-established requirements of specialised anti-corruption judges.
UNIAN memo. On February 1, 2017, bill No. 6011 on anti-corruption courts drafted by MP Yehor Sobolev of the Samopomich parliamentary faction, nonaligned Oksana Syroyid, and Svitlana Zalishchuk, Serhiy Leshchenko, Mustafa Nayem (all from the Petro Poroshenko Bloc faction), and Ivan Krulko of the Batkivshchyna faction was registered in the Verkhovna Rada. This bill defines the peculiarities of the organization of anti-corruption courts. It also contains special requirements for judges of anti-corruption courts, and defines the requirements for the organization of anti-corruption courts, for candidates for positions of judges of anti-corruption courts, for the selection and procedure of these judges' appointment.
On May 31, 2017, Ukraine's parliament registered bill No. 6529 on amendments to the Law of Ukraine on the Judiciary and the Status of Judges (regarding the introduction of mandatory specialization of judges for the investigation of corruption and corruption-related offenses). Its author is Member of Parliament Serhiy Alekseev (the Petro Poroshenko Bloc faction). The document provides for the exclusion from the law of Ukraine on the Judiciary and Status of Judges the provisions that define the activities of the High Anti-corruption Court. It is envisaged that corruption and corruption-related offenses should be considered by general local courts and appellate courts, which should mandatorily have special judges who will hear such cases. What is more, it suggests that the Supreme Court should have a separate chamber of the Cassation Criminal Court for corruption proceedings. It is proposed that the number of judges from such specialization in local courts should be at least three, while the appellate courts should have at least five judges.