According to the renewed Memorandum with the International Monetary Fund (IMF), Ukraine has to create a system of anti-corruption courts this year, Minister of Finance Oleksandr Danyliuk has reported in the program “Freedom of Speech” on ICTV yesterday. Since the Memorandum text remains confidential before the adoption, more specified terms of the next tranche disbursement are unknown. The establishment of anti-corruption courts, which is a part of the major judiciary reform, is suspended because of the conflict between the National Anti-Corruption Bureau (NABU) and the High Council of Justice (HCJ), whose positions regarding the Draft Law “On Special Anti-Corruption Courts” differ significantly.
Deputy chairman of the NGO “Center of Policy and Legal Reform”, chief expert of the judicial reform group of the Reanimation Package of Reforms Roman Kuibida has told the Reforms Guide project more about the situation on the establishment of anti-corruption courts.
First of all, the expert has emphasized that the Memorandum provisions should not be accepted as the IMF “requirements,” because they are voluntary commitments assumed by Ukraine in order to get funds: “This is an agreed position of Ukraine concerning the adoption of the Draft Law “On Special Anti-Corruption Courts ” and this is also a necessary step to complete the reform of anti-corruption bodies. Of course, under normal circumstances, if there were a properly functioning judicial system, the establishment of such courts would not be necessary, but the reform is stretched for many years and it will come to the local courts at the end, however, cases of corruption in the top government echelons should be considered now. Because of corruption in the top, NABU is not considered to be effective, there are a lot of claims to this body, but they have passed a lot of cases to the courts that in turn are delaying their consideration.”
A key draft law on anti-corruption courts should not include opportunities for future political manipulations, Roman Kuibida says: “It is very important to avoid a situation of passing a law that will shape anti-corruption courts under political control, integrity of judges should not cause doubts, and otherwise, the establishment of these courts will be unreasonable.”
Around the Draft Law, there is a conflict between NABU and HCJ concerning the detention of judges. “The conflict started from the provision of the Constitution that prohibits detaining or arresting a judge without the consent of the High Council of Justice except cases of detention at the scene of committing grave or especially grave crimes. HCJ interpreted this provision as so that its consent is not required only for detention at the scene of a crime. At the same time, the explanatory report stated that this is an exception: if a judge is caught red-handed, the consent of HCJ is not required either for arrest or for detention. And NABU Council accepts it exactly as it was interpreted in the explanatory report to the Constitutional amendments initiated by the President, for which, in fact, the Verkhovna Rada voted. As an expert, I personally tend to the interpretation of the regulation and its content instead of that HCJ wants to see,” Roman Kuibida commented.
In general, the expert considers the text of the draft law to be ready for adoption in the first reading but with further improvements in accordance with recommendations of international experts.
Moreover, the expert expressed his vision concerning the possibility to create anti-corruption courts in Ukraine this year: “Adoption of the Law is realistic, as well as the allocation of funds for its implementation in the budget. If the draft law is adopted by the end of June, its implementation shall be expected in January-February 2018. The process of establishment depends on whether the procedure of judges’ selection is realized by that time.”