Since the Maidan movement that overthrew the last Ukrainian government, Ukrainian anticorruption activists have demanded, among other reforms, the creation of a specialized anticorruption court. Many of Ukraine’s Western backers likewise consider the creation of such a court to be an essential step in addressing the country’s systemic corruption problem, and in recent months, protests have broken out on the street in support of the court. In what appears to be a major victory for the domestic and international advocates of a special anticorruption court, President Poroshenko agreed in principle to create such a court this past October—although the details will need to be worked out.
Not everyone is convinced that the creation of a specialized anticorruption court is as important as its backers think. In a thoughtful post last month, Helen articulated the skeptical view, arguing that the specialized anticorruption court will likely not live up to expectations, and that domestic and international actors are placing too much emphasis on the creation of this particular institution. But Helen both underestimates the importance of a specialized anticorruption court in the Ukrainian context, and is overly pessimistic about its prospects for effectiveness. That said, she is right to highlight how things could go awry if the creation of the specialized anticorruption court is not done right.
Though Helen may be correct that a specialized anticorruption court is not a “silver bullet,” Ukrainian activists are correct that a specialized court is a prerequisite—and likely catalyst—for the broader, more systemic anticorruption reform that Helen rightly points out is necessary. Right now, efforts to root out the corruption that plagues the public sector in Ukraine often hit a wall in the justice system: Even though reformers have managed to get some new anticorruption laws passed by the Rada (parliament), prosecutions based on new or existing anticorruption laws are often sidelined or politicized, and citizens and NGOs lack recourse when those laws are violated. An anticorruption court will create a new venue for prosecutions, and can give a voice to other stakeholders affected by corruption.
Furthermore, an anticorruption court could empower the National Anticorruption Bureau of Ukraine (NABU). NABU, created in the wake of the Maidan revolution, has earned praise for its dedication to investigating corruption, including investigations that led to cases against significant political actors, such as the head of the State Fiscal Service and a deputy defense minister. But NABU’s cases have struggled to get through the regular Ukrainian judicial system. (As of July 2017, only 18 out of 75 cases NABU had submitted to courts had judgments.) Unless NABU, and the Specialized Anticorruption Prosecution Office (SAPO) are able to see anticorruption cases through to sentencing, NABU’s otherwise good work will continue to have limited utility. The creation of a specialized anticorruption court will embolden NABU, and will give NABU and SAPO a more reliable—and likely more efficient—forum to try their cases.
All that said, the ultimate effectiveness of the court will depend on its institutional structure. Since President Poroshenko has not yet submitted his own bill to the Rada, details are lacking on what his proposal would look like. Ukraine could choose from models that stretch from Slovakia to Indonesia. The devil, as they say, is in the details, and a lot could still go wrong. Here are a few essential things for anticorruption activists to consider as the court moves forward:
- What will be the system for selecting judges? The various proposals currently on the table all have different systems for selecting judges for the court, and the system that dominates will have significant influence on the direction of the court and the legitimacy of its processes. (Most notably and controversially, the opposition bill and the Venice Commission have recommended significantly more influence for foreign parties in the selection of judges on the special court.)
- How will appeals be handled? President Poroshenko has proposed that appealed cases go to an anticorruption chamber within the Supreme Court, staffed by normal Supreme Court judges. These judges go through a political confirmation process that makes them likely to be heavily influenced by the Poroshenko Administration (and many of those judges have themselves been the object of corruption allegations.) Critics therefore argue that giving the Supreme Court appellate jurisdiction over the specialized anticorruption court would essentially give the President veto power over convictions. Opposition leaders and foreign donors would have the judges for the appellate body for anticorruption cases go through a different selection process, giving them more independence from the president.
- Who will have jurisdiction to prosecute at the court? NABU does not prosecute cases. While Ukraine’s Prosecutor General’s Office (PGO) is—as Helen rightly points out—plagued with corruption and allegations of politically-motivated prosecutions, SAPO is an independent unit of the PGO that does not report to the Prosecutor General. NABU and SAPO need to have a clear judicial highway to prosecute their cases and avoid politicization and corruption in the regular courts. To prevent the court from slowing down NABU’s work, and to limit political prosecutions, cases submitted by NABU and SAPO should have priority in getting into the anticorruption court. Another, related issue is whether citizens and NGOs should be able to bring cases in the anticorruption court. Addressing these and other questions concerning prosecution are essential to making sure the court executes its mission.
- Where will the court’s funding come from? If the court’s funding comes from the Rada, it can be subject to legislative or executive sabotage if certain groups or parties dislike how the court has ruled. If the funding comes entirely from outside parties, it is at risk of being dropped once Ukraine is a lower priority for the international community; foreign funding can also undermine the court’s perceived legitimacy. The court ought to have some sort of guaranteed funding, perhaps a guaranteed percentage of the judiciary’s budget, in order to ensure it will receive the necessary resources to carry out its mission.
Since President Poroshenko’s announcement that he agreed to the court’s creation, he has stalled on moving forward. But international actors, who have been some of the most influential drivers of anticorruption reform in Ukraine, have continued to push for it. Appropriate answers to each of these questions are essential to protecting the court, and the court will need to be carefully monitored from the very first day to ensure it avoids capture by special interests and marginalization from the system. But while the creation of a specialized anticorruption court is only one step, it’s an important one for promoting anticorruption and rule of law in Ukraine.
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Thanks for an informative exchange Susannah and Helen. I had a query about subject matter jurisdiction here: what sort of matters are being lumped within the ‘corruption’ definition? Is there a minimum monetary threshold to only allow grand corruption kinds of cases? Or would everything come in?
Thanks for the thoughtful response Susannah. I agree that the establishment of an independent anticorruption court would embolden and empower NABU to a great extent – This would only happen when the court, apart from prioritizing cases investigated and submitted by NABU, also provides NABU with substantial institutional and procedural support. For example, it has been proposed that the wiretapping authorization should not be approved by security agencies whose leaders are political appointees, by through court warrant. That said, the relationship between the new court and NABU should also be a tough yet crucial issue for the legislators to focus on.