No Silver Bullet: Why Ukrainian Anticorruption Activists Should Not Fixate on Creating a Specialized Anticorruption Court

Ukrainian civil society activists have been aggressively campaigning for the establishment of an independent anticorruption court (see, for example, here, here, and here), in which international donors and other partners would participate in the selection of judges. Until very recently, President Poroshenko had vigorously resisted this campaign, asserting that “all courts in the country should be anti-corruption,” and proposing instead to have an anticorruption chamber within the current court system as part of his judicial reform plan. Yet in a surprising turn of events, on October 4th President Poroshenko appeared to yield to the demand of activists and international pressure to create such a court.

Poroshenko’s flip-flop seems to be a major victory for anticorruption activists in Ukraine. Yet it might be too early to celebrate. As promising as it sounds, a specialized anticorruption court is unlikely to live up to Ukrainian activists’ expectations. In a country like Ukraine—an oligarchic democracy in which governmental power is not delineated clearly by the constitution or legal framework, the executive is not effectively checked by the judiciary, and businesses are entangled with politics—the creation of a new judicial body is unlikely to be a game-changer. Moreover, in focusing so much on the campaign to create a specialized anticorruption court, domestic and international activists may be diverting energy and resources from more important issues, such as reforming the Prosecutor General’s Office (PGO), strengthening the role of the National Anti-Corruption Bureau of Ukraine (NABU), and adopting more comprehensive political and economic reforms reduce the clout of the country’s oligarchs.

There are two main reasons that the proposed Ukrainian anticorruption court is unlikely to live up to activists’ expectations:

First, the effectiveness of an anticorruption court relies on the prosecution and investigation of the cases that are brought before it. Yet while Ukraine has made great strides with respect to investigative institutions, the prosecutor’s office remains the weak link in the chain. NABU, founded in October 2014 at the insistence of the International Monetary Fund and the European Commission, is an enforcement agency with a mission of “preventing, exposing, stopping, investigating and solving corruption-related offences committed by high officials.” And NABU is considered by many to be at least a qualified success. Yet with regard to anticorruption prosecutions, the PGO remains the most powerful authority in Ukraine. And the PGO is so corrupt, and its decision-making process is so opaque, that the Executive Director of Transparency International (TI) Ukraine characterized it as “a political entity, not a law enforcement agency.” Well-connected oligarchs and politicians can and do use their influence over the PGO to impede serious efforts to prosecute corruption cases. A typical example is a case in which the PGO balked at prosecuting a kleptocratic oligarch who stole US$23.5 million, despite the overwhelming incriminating evidence collected by NABU. Even if with a fully independent and perfectly designed anticorruption court, it is hard to imagine that any real improvement will take place without major reforms of the PGO.

Second, Ukrainian society and government are so thoroughly permeated by corruption and oligarchic domination that it is unlikely that even a formally independent anticorruption court would meet activists’ expectations. Consider, for example, the process for selecting judges. Some have suggested that, in order to ensure independence, judges on the special court should be selected by a diverse body of interests. Yet diversity in Ukraine is most likely an illusion, as the interests exercising influence in Ukraine are very much aligned, and the multiple stakeholders—including government authorities, trade unions, multinational corporations, actors in private sector, among others—are more or less interdependent. One possible solution might be to give civil society more of a role in the selection process. But even if this occurred, it might not matter much, given the power that the government has to pressure or coerce civil society groups if it so chooses. (Case in point: President Poroshenko signed a law that imposed mandatory asset declaration on anticorruption groups, with such vague wording that it could easily be used to harass or punish those groups.) Another proposed solution, endorsed by many domestic activists and also recommended by the OECD, is for the international donor community to play a role in judicial selection. But the role of international partners in selecting the judges on a Ukrainian anticorruption court is not likely to be more than marginal. President Poroshenko emphasized in his address that the specialized court should be guided by the principle of national sovereignty, demonstrating his reluctance to relinquish the judicial power or to delegate the fight against corruption to international participants. Giving a handful of international representatives a limited say in selecting some of the judges is unlikely to be enough to counterbalance the overwhelming influence of the oligarchs.

In sum, as long as the oligarchs continue to dominate Ukraine’s legislature and party politics, and as long as those same oligarchic interests are able to capture the public prosecutor’s office and wield sufficient influence over judicial selection, it is unlikely that the creation of a specialized anticorruption court will make more than a marginal difference to the fight against grand corruption in Ukraine. That does not necessarily mean that the creation of such a court might not be desirable, or that it wouldn’t make at least some difference in a few cases. But I worry that Ukrainian anticorruption activists have zeroed in on the creation of a specialized anticorruption court as their highest-priority agenda item, and are spending considerable resources and political capital in the fight for that specific institutional reform. That might be a mistake, to the extent that the activist community is putting unrealistic expectations on what a special court can accomplish, and in the process diverting their limited energy and attention from broader efforts to tackle the entrenched culture of nepotism and oligarchy, and the other political, institutional, and legal factors that perpetuate the weak rule of law.

11 thoughts on “No Silver Bullet: Why Ukrainian Anticorruption Activists Should Not Fixate on Creating a Specialized Anticorruption Court

  1. Thanks for the interesting and timely post. You have made two important points which I entirely agree with: first, that an anti-corruption court is not a silver bullet against corruption and, second, that the actual composition and independence of any such newly established court matter much more than the label of an ‘anti-corruption’ court.

    I wonder, however, if you are a tad too sceptical of the value that a specialised anti-corruption court might have in Ukraine. Since any prosecution or confiscation process ends up in court, reforms of the investigatory and prosecutorial authorities down the line risk being inconsequential unless the judiciary is up to scratch. I think you are right in your criticism of Ukraine’s Prosecutor General’s Office; however, it now incorporates a new, semi-autonomous Special Anti-Corruption Prosecutor’s Office that seems to enjoy a better reputation than its parent organisation (a rather low bar, but still…). In short, while I think you are right in your overall assessment, I would rather side with those who argue that Ukrainian judiciary is the weakest link in the chain and should be reformed as a matter of urgency, and the creation of an anti-corruption court is a sensible step to take towards that purpose, although by no means the only one.

    • Thanks very much for your comments.

      You made a valid point that the court is a weak link and must be reformed, especially considering the pace of trial proceedings is extremely slow and that there are no verdicts of corruption cases as of today. I also agree that there has been improvement thanks to the establishment of the Specialized Anticorruption Prosecutor’s Office (SAP). But I still believe reforming the PGO (and strengthening the SAP) should take priority as the cases the court is to decide depend on the almost unfettered power and discretion of the prosecutor.

      Reforming PGO is still crucial despite that an independent SAP has been established. SAP is under the supervision of PGO, which meanwhile appears to assert more and more control over NABU. Moreover, current head of the SAP, Nazar Kholodnytsky, is a former Deputy Prosecutor of the PGO, which may render SAP open to influence of the latter. In an interview of Nazar Kholodnytsky this April, he admitted that SAP is extremely understaffed – it has taken in more than 300 cases but there are only 35 prosecutors in the office (To ensure quality control SAP designed a four-level competition employment process, which takes way too long for qualified staff to fit the vacancies). In light of the above, and reiterating the point I made in the post, real changes can only happen if the prosecutor’s office is revamped.

  2. Very interesting post, Helen. My country, the Philippines, is home to the oldest independent anticorruption court (called the Sandiganbayan). I am not saying that Ukraine should emulate our example; indeed, the Sandiganbayan is struggling with various challenges of its own. I think it is worthy to note though that the Sandiganbayan’s work is complemented by the Office of the Ombudsman, which is also an independent investigation and prosecution office that is separate from the regular prosecution bureaucracy. The Ombudsman is a constitutional officer that does not answer to the President, and only the Ombudsman’s prosecutors can conduct trials in the Sandiganbayan. In terms of institutional design, I believe it is essential for any independent anticorruption court to also have an independent prosecution arm. Whether the SAP or the PGO can step into this role remains to be seen; but I think the best course of action is for advocates in Ukraine to consider campaigning for a completely independent anticorruption court AND prosecution office.

    • Thanks, Ryan, for the very informative comment. Sandiganbayan is a case in point in terms of good institutional design, but as you said, it struggles with many challenges as it operates, one of which, as I understand, is the decreasing performance due to the preexisting inefficiency in criminal procedures, which has not been properly addressed before the specialized court was created. This is just one example where the underlying issues must get addressed as a matter of priority. But at the end of the day, I cannot agree more that a comprehensive game plan having both an independent court and prosecution office should be pursued.

  3. Thanks for the informative post! What would your position be on the legitimacy of a court that is ultimately established with the help of foreign powers (states or international bodies). Do you think it necessary owing to the investment (both economic and political) by the international community in Ukraine or that it is a bad idea that might ultimately worsen the situation by letting the government pass the buck.

    • Thanks Abhinav! A previous post by Professor Stephenson has analyzed in detail the pros and cons of having international participation in institutional design, capacity building, and enforcement of anticorruption law among other aspects.

      https://globalanticorruptionblog.com/2017/04/11/when-should-countries-outsource-key-anticorruption-functions-to-foreigners/#more-8583

      I think it is the policy choice of different countries based on their unique contexts. The anticorruption system in Ukraine to a great extent is shaped by the international power, in particular, the OECD. The legitimacy of the court in Ukraine at the end of the day may be judged by its effectiveness in handling corruption cases.

      • Great post Helen, and I do agree with Abhinav’s underlying thought here. A sub-context of any anti-corruption court (and indeed, any anti-corruption effort) in Ukraine would be the external players and actors involved. I think the degree of such actors involvement make Ukraine quite a unique case-study. While this degree of involvement may be perceived to be a desirable thing by the anticorruption camp, it could equally be perceived to be a sinister intervention by others. This perception, however it plays out, may be crucial to the success of the Court.

        • Thanks Shanil for your comment. You and Abhinav both seem to worry about the potential resistance and backlash in Ukraine society owing to the deep involvement of the international community. Hence the question of shaping what kind of narrative becomes acutely crucial. Additionally, to ensure the public indeed sees the positive influence of international participation, there should be information sessions to keep the general public in the loop, reports and statistics release on a regular basis, channels that directly address concerns about international participation, among others. These would increase transparency and accountability, generate sufficient public supervision and dispel the distrust or any potential sinister depiction of international involvement during the creation and operation of the court.

  4. Helen, great post. While reading the coverage on the creation of the court, I was left wondering whether the effectiveness of the court is not only undermined by problems with the prosecution, but also by Poroshenko’s demand that the Supreme Court’s anticorruption chamber still oversee appeals from the court. In that sense, along with the other points you raise, would you agree that the creation of the court is a concession to the international community in name only?

    • Thanks Maddie for your careful reading and comment. Yes the Supreme Court’s anticorruption chamber (the plan President Poroshenko has been insisting on) can create further difficulties for the independent court to enforce the anticorruption law since the former would be acting as an appellate level court and would have the potential to overrule whatever decisions from the independent court. Creation of the court is indeed a concession to the international community’s demand, but I would not go so far as to say it is a concession in name only. And yet, this obstacle, in addition to the weak rule of law, the entrenched nepotism, and the corrupt prosecution, may render the effectiveness of the independent court a hollow hope.

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