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

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

Guest Post: A Breakthrough in Guatemala’s Fight Against Judicial Corruption

GAB is honored to welcome Judge Claudia Escobar, who contributes the following guest post:

Guatemala usually does not get a lot of attention from the international media, and when it does it is usually because of widespread violence or political instability. But lately the country is gaining recognition for its serious efforts to fight corruption and impunity. Partly due to the legacy of 36 years of internal armed conflict, Guatemala has been plagued by a culture of impunity, as well as a legacy of criminal structures that infiltrated government institutions—structures that are still operating today, more than a decade after the 1996 Peace Accords. In response to this problem, the Guatemalan government to ask the United Nations for help in rebuilding the rule of law, and in response, the International Commission against impunity in Guatemala—CICIG—was created in December 2006 when the Guatemala Government and the UN signed the agreement. This new institution was conceived as an independent body to support the Public Prosecutor’s Office, the National Police, and other state law enforcement institutions. The ultimate goal of CICIG is to strengthen institutions within the judicial branch so that they will be able to confront illegal groups and organized crime.

CICIG has already been hailed as a major success and a potential model for other countries in the region to follow. Its most well-known impact to date is that its investigation into systemic corruption in the government of President General Otto Perez Molina and Vice President Roxana Baldetti ultimately forced both of them to resign. Another, more recent development has gotten much less attention in the international press, but is also a crucial step forward in Guatemala’s struggle to build the rule of law: On October 2016, as a result of a CICIG investigation that commenced two years earlier, former Congressman Godofredo Rivera and attorney Vernon Gonzalez were found guilty on corruption-related charges for attempting to influence a judge. Sentencing two white-collar defendants, with strong political connections, to lengthy prison terms for attempting to influence a judge is unprecedented in Guatemala, and a major step forward. This case was the first case of corruption to be presented against a high official in power by the office of the Attorney General Attorney and CICIG since the Commission was established. It is also the first sentence handed down under the anticorruption law approved in 2012 (which, coincidentally, Congressman Rivera signed into law when he was president of Congress).

The sentence also has a great deal of personal meaning for me, because I was the judge who Rivera and Gonzalez tried to corrupt, and I was the one who filed the case with CICIG. Continue reading