The fight against corruption has been a central focus for Ukraine since the 2014 Maidan Revolution. In the immediate aftermath of Maidan, the country created four new institutions, the National Anti-Corruption Bureau of Ukraine (NABU) (an investigative body), the Special Anti-Corruption Prosecutor’s Office (SAPO) (with prosecutorial powers), the National Agency for Prevention of Corruption (NAPC) (responsible for administering the e-asset declaration system), and the Asset Recovery and Management Agency (ARMA) (tasked with recovering stolen assets). Yet the problem of impunity for grand corruption has persisted, and many believe that the weak link in the chain has been the Ukrainian judiciary. In addition to familiar problems of delay and inefficiency, Ukrainian judges are widely viewed as susceptible to political influence, and even corrupt themselves. To address this problem, in 2018—thanks to the combined lobbying efforts of Ukraine’s vibrant civil society and pressure from international donors, primarily the International Monetary Fund (IMF)—Ukraine enacted a new law creating a specialized anticorruption court known as the High Anti-Corruption Court (HACC), which began operations this past September.
The most innovative and controversial feature of this new court is the inclusion of foreign experts in the judicial selection process. While many countries have created specialized anticorruption courts, and many of these have special judicial selection systems that differ from the procedures for appointing ordinary judges, the participation of foreign experts in the HACC judicial selection process was unprecedented. Yet both domestic civil society groups and outside actors like the IMF and the Venice Commission (the Council of Europe’s advisory body for legal and constitutional matters) came to see foreign participation in the selection of HACC judges as crucial, particularly in light of the controversial selection process for judges to Ukraine’s Supreme Court in 2017. In the selection to the Supreme Court, multiple candidates were approved by Ukraine’s High Council of Justice (HCJ) despite the fact that those candidates were found to be ethically tainted by the Public Integrity Council (PIC), a civil society watchdog that assists the High Qualification Commission of Judges (HQCJ) in assessing the integrity of judicial candidates. Thus, when lobbying for the HACC, civil society and some members of parliament demanded that the law guarantee the presence of foreign experts with the power to veto judicial candidates, in order to ensure that no judges were appointed to the HACC if there was reasonable doubt about their integrity.
As a short-term stopgap, the involvement of foreign experts in the HACC judge selection is promising and may even serve as a useful model for other institutional reforms within Ukraine, and for other countries. But reliance on foreign experts to address concerns about selecting judges (or other officials) of sufficient integrity is probably not a long-term solution.
How exactly is foreign involvement in the HACC selection process structured? For comparison purposes, the ordinary process for appointing judges in Ukraine works as follows: First, applicants for judgeships are screened by the HQCJ, which administers a series of assessments (including a test of legal knowledge, a practical exam, and a psychological evaluation) and compiles information about each candidate with information from a number of institutions, including the Prosecutor General’s Office, NABU, the National Police, and the Ministry of Internal Affairs. The HQCJ also interviews each candidate. The PIC—which, as noted above, is a separate body composed of civil society representatives and other non-governmental experts—is supposed to review candidates and flag those with which the PIC has concerns about ethics and integrity. However, the HQCJ is neither required to invite the PIC to the interviews nor to act on the PIC’s recommendations. The HQCJ then proposes a list of candidates to the HCJ, which conducts a final review and forwards a list of candidates to the president, who must then officially appoint those candidates to judicial positions. The president cannot legally refuse to appoint any of the HCJ-nominated candidates, nor is legislative approval required. Judges are appointed for life.
The key difference for HACC appointments is the involvement of a new body called the Public Council of International Experts (PCIE), which plays a role similar too—but has more power than—the PIC. Here’s a basic sketch of how it works:
- The PCIE, as an entity, was legally established for a six-year term. Its members, on the other hand, are selected for two-year terms without the possibility of re-appointment. Each international organization with which Ukraine has agreements on cooperation in the field of preventing and combating corruption can propose to the HQCJ two or more candidates for the PCIE. The HQCJ interviews each of the nominees and selects six to serve on the PCIE. A Secretariat, funded by international donors, provides logistical, technical, and local legal support to the PCIE.
- The judicial candidates who pass the first stage evaluation are assessed by the PCIE, and this assessment focuses principally on the candidates’ professional ethics and integrity. As part of this process, a dossier on each candidate is prepared for the PCIE members; this dossier contains information gathered by NABU, civil society organizations, and the PCIE’s Secretariat. The PCIE can also request additional information from any candidate.
- If at least three PCIE members have reasonable doubt about any candidate, the PCIE may initiate a special joint meeting with the HQCJ. The candidate can only proceed to the next stage if, following deliberations at this joint meeting, the candidate receives a 12-vote majority from the combined 22 votes of the HQCJ (16 members) and the PCIE (6 members), with at least three PCIE members and at least nine HQCJ members voting yes (the so-called 3+9 rule). The same rule applies in reverse – three PCIE votes and nine HQCJ votes against a candidate would take the individual out of the selection process. Alternatively, a candidate can also be disqualified if at least four PCIE members vote no.
- The remainder of the process parallels that for ordinary judges: the HQCJ recommends a final list of candidates to the HCJ, which makes final decisions and sends a list to the president for signature.
The inclusion of foreign experts in the HACC selection process was a novel idea and a bold step forward. Given Ukraine’s track record of selecting judges of dubious integrity, the involvement of competent and qualified foreigners to screen candidates was arguably necessary, and the first round of judicial selection seems to have gone fairly well. Yet while I am fully on board with this innovation, there’s a danger in over-relying on foreign involvement to solve what, in the long term, is a domestic political and institutional problem. The work of the PCIE should be seen as genuinely successful only if it serves as a stepping-stone for Ukraine to develop the ability to conduct judicial selection with the same level of transparency and integrity with domestic experts as it did with foreign experts.
There are two reasons why, notwithstanding its short-term success, the PCIE model is not a long-term solution:
- First, the employment of foreign experts is not sustainable. In order to guarantee the work of the PCIE in Ukraine over a 30-day period, international donors established and fully funded a Secretariat staffed with translators, IT specialists, and legal experts. Assembling a comparable secretariat every time foreign experts are involved is financially and logistically challenging. Convening a group of experts from all over the world within a short timeframe is difficult. And the international donor community cannot maintain its current level of engagement with Ukraine forever, nor will international donors provide the resources to finance the PCIE indefinitely.
- Second, prolonged reliance on foreign experts could lead to the neglect of needed reforms to domestic institutions. In this particular case, the PCIE was essentially a response to the failures of the PIC. The problem, though, was not with the PIC itself, or the expertise, competence, and integrity of its members. Rather, the problem was the PIC’s limited role and powers. A longer-term solution would be to give the PIC authority comparable to that of the PCIE, so that PIC members can have a real say in judicial selection, including the power to veto ethically tainted candidates. Strengthening the PIC can help eliminate the financial and logistical issues of sustainability while simultaneously empowering a domestic institution. More broadly, Ukraine’s goal should be to train individuals at home to be able to perform on par with foreign experts.
Foreign experts are a valuable but temporary solution to the problems with Ukraine’s judicial selection process. The PCIE experience can and should serve as a valuable lesson, but over the longer term, Ukraine’s experts and policymakers should move forward with reforming domestic mechanisms and institutions. Therefore, proponents of this model should exercise caution. As a short-term stopgap, turning to foreign experts to address institutional weaknesses can be desirable. But an overreliance on foreign oversight for a prolonged period of time is a risk that Ukraine cannot afford to take.