Author Archives: Ivanna Kuz

“NGOs with Foreign Support”: A New Draft Law Threatens Ukraine’s Anticorruption NGOs

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In May, Ukrainian Member of Parliament Oleksandr Dubinsky, a controversial member of the Servant of the People Party (Ukraine’s ruling party, headed by President Volodymyr Zelensky), registered a draft law that would label certain civil society organizations as “foreign agents.” More specifically, this legislation—which resembles Russia’s 2012 “foreign agent” law—would:

  • Oblige NGOs receiving at least 50% of their financial support from foreign entities to include the term “foreign support” in their organization’s name, and to include in any materials published by the NGO a disclaimer stating that the materials are published by an organization that functions with foreign support;
  • Initiate the creation of a central register of such NGOs, requiring the Ministry of Justice to publicize a list of these NGOs on its official website and to publish annual reports of foreign-funded NGO activity in Ukraine;
  • Require the management of these NGOs to undergo annual polygraph interviews in order to review whether or not these individuals have committed treason; and
  • Prohibit any individuals in NGO management positions from working in the civil service or holding membership on supervisory boards or in the leadership of state enterprises for five years after working in a foreign-funded NGO.

While Dubinsky’s proposed legislation poses a serious threat to all NGOs that receive foreign funding (except for a few categories that the draft law specifically exempts, such as NGOs that work in the sphere of culture, arts, science, prevention and health of citizens, social protection, social support for the disabled, and environmental protection), this legislation would have a particularly adverse impact on the work of anticorruption NGOs.

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How Can Ukraine’s High Anti-Corruption Court Succeed?

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Following more than two years of advocacy efforts by Ukrainian civil society and pressure from the international community, Ukraine established a specialized High Anti-Corruption Court (HACC) to try high-level officials accused of serious corruption offenses. The HACC, which was authorized in June 2018 and began operating this past September, is rightly seen as a major victory for Ukrainian anticorruption activists, and the first round of judicial selection for this court (a process that entailed special procedures, including the participation of a foreign expert panel in assessing candidates’ integrity) appears to have gone well. But the HACC faces daunting challenges—it is a brand-new institution, operating in an uncertain but pervasively corrupt environment, tasked with addressing extremely complicated and sensitive cases under intense public scrutiny. Its success is by no means guaranteed.

Some of the factors that will affect the HACC’s performance are external to the court itself. For example, the HACC’s success depends in part on the quality of the work done by Ukraine’s anticorruption investigative and prosecutorial bodies, the National Anti-Corruption Bureau (NABU) and Specialized Anti-Corruption Prosecutor’s Office (SAPO). And given the history in Ukraine of political interference with the courts (despite the constitution’s guarantee of judicial independence), one must always worry about whether the HACC will face similar threats. But even if we put those concerns aside, there are several additional steps that can and should be taken to help ensure that the HACC lives up to its potential. Continue reading →

Ukraine’s Bold Experiment: The Role of Foreign Experts in Selecting Judges for the New Anticorruption Court

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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. Continue reading →