On consideration of draft laws “On the High Anti-Corruption Court”

On September 30, 2016, Law of Ukraine No. 1401-8 “On Amending the Constitution of Ukraine (Concerning Justice)” and Law of Ukraine No. 1402-8 “On the Judicial System and the Status of Judges” (new version) took effect; these Laws provided for the creation, within the judicial system, of the High Anti-Corruption Court with the status of a high specialized court. Before the High Anti-Corruption Court is created and starts functioning, however, a Law regulating the procedure for its formation and operation must be adopted.

In this connection, on February 1, 2017, Vice-Chairperson of the deputy faction of Political party “SAMOPOMICH” Union” Yehor Sobolev and 5 other MPs submitted Draft Law No. 6011 “On Anti-Corruption Courts.” However, during the subsequent 8 months no attempt was made to put that draft law on the Parliament’s agenda for consideration. On October 6 the Venice Commission published its opinion on Draft Law No. 6011, calling on the President of Ukraine to submit as soon as possible his draft law on anti-corruption courts which should be based on the Commission’s recommendations, in particular regarding the procedure for selecting judges for the Court.

Higher social tension, slowing down of reforms, and increased activity of the Ukrainian political environment led to the October 17 rally. One of the demands of the protesters was to create anti-corruption courts. To speed up the implementation of the demonstrators’ demand and to enable the President to submit his draft, the MPs were required to withdraw Draft Law No. 6011. The application for withdrawing the draft was received on October 18; but it was not until December 21 that a positive decision on the withdrawal was finally adopted, after three unsuccessful attempts to do so (this issue was put to the vote by the Speaker twice on November 9 and one more time on November 14). However, instead of submitting a new draft law, the President called on the Parliament to create a working group for elaborating the provisions of the draft law “On the High Anti-Corruption Court.”

On December 22, 2017, the President submitted Draft Law No. 7440 “On the High Anti-Corruption Court,” which was criticized by experts, public activists and mass media because it failed to comply with the Venice Commission’s recommendations, and Draft Law No. 7441 on amending the Law of Ukraine “On the Judicial System and the Status of Judges” in connection with the adoption of the Law of Ukraine “On the High Anti-Corruption Court,” which provided for the possibility of creating chambers at the high specialized court to hear certain categories of cases in the first instance as well as for the creation of an appellate chamber to hear appeals.

Four alternative drafts to Draft Law No. 7440 were submitted (draft from Member of the deputy group "Party "Revival" Valeriy Pysarenko, on December 29, 2017; draft from Member of the deputy faction of PARTY “PETRO POROSHENKO BLOC” Serhiy  Kaplin, on January 9, 2018; draft from Member of the deputy faction of the Political party “SAMOPOMICH” Union” Olena Sotnyk, on January 10, 2018; and draft from Member of the Faction of the Political party the All-Ukrainian Union “Batkivshchyna” in the Verkhovna Rada of Ukraine Ihor Lutsenko, on January 10, 2018), while only one alternative draft was submitted to the related Draft Law No. 7441 (from MP O. Sotnyk).

On January 15, letters from the IMF and the World Bank were published which criticized the presidential draft. If the draft is not brought in compliance with the provisions proposed by the Venice Commission, it is highly likely that this will result in termination of financial assistance to Ukraine.

On January 16, putting the hearing of Draft Law No. 7440, the alternative drafts, as well as Draft Laws Nos. 7441 and 7441-1 on the parliamentary session’s agenda was included as entry number two in the list of proposals for the agenda, in spite of absence of opinions from the VR Committees, Main Legal Department and Main Research and Expert Department. However, the consideration of Draft Law No. 7163 on Donbas reintegration, to which 673 amendments had been submitted, prevented a discussion on January 16 about placing the group of draft laws on the High Anti-Corruption Court on the Parliament’s agenda.

Number

Draft law initiator

Requirements for candidates seeking positions of judges in the High Anti-Corruption Court

Competition Commission

Public Council involvement

7440

President Petro Poroshenko

For a candidate to be appointed as judge of the High Anti-Corruption Court, he/she must meet one of the following requirements:

  • 5 years of work as a judge;
  • scientific degree in the legal sphere and work record of 7 years in the legal profession;
  • 7 years of work as a lawyer;
  • or a total of at least 7 years of work in the above-mentioned positions.

 

Individuals may not be appointed as judges of the High Anti-Corruption Court if they:

in the 10-year period before the appointment worked in public prosecution bodies or law enforcement agencies;

during the past 5 years, were members of governing bodies of a political party or had an employment or other relationship with a political party;

were members of the High Qualifications Commission of Judges of Ukraine or of the High Council of Justice before the Law of Ukraine “On Restoring Confidence in the Judiciary in Ukraine” took effect (April 2014), held political positions, held a representative mandate, committed corruption crimes, etc.

The competition for the vacancies of judges of the High Anti-Corruption Court will be conducted by the High Qualification Commission of Judges.

As an auxiliary body of the High Qualifications Commission of Judges (below, HQCJ), a Public Council of International Experts will be created, which will be appointed by the HQCJ exclusively on the basis of proposals from international organizations. The Public Council of International Experts will consist of no more than 7 members.

To override the negative opinion of the Public Council of International Experts, 11 votes of HQCJ members will be required.

The Public Council of International Experts will delegate an authorized representative for participation in a meeting of the High Qualifications Commission of Judges of Ukraine related to the qualification evaluation of a candidate for the position of judge of the High Anti-Corruption Court.

7440-1

Member of the deputy group "Party "Revival" Valeriy Pysarenko

For a candidate to be appointed as judge of the High Anti-Corruption Court, he/she must have a 10-year record of work in one of the following positions:

  • judge;
  • lawyer;
  • public prosecutor;
  • have a scientific degree in the legal sphere and a record of work in the legal profession
  • or a total of at least 10 years of work in the above-mentioned positions.

 

It will be possible for judges’ vacancies in High Anti-Corruption Court to be filled by candidates working during the past 10 years in law enforcement agencies or public prosecution bodies.

The Competition Commission will be created by the High Qualification Commission of Judges.

The Competition Commission will include:

  • all members of the High Qualifications Commission of Judges of Ukraine;
  • four representatives from countries/international donor organizations that provided/are providing international technical assistance to Ukraine.

The members of the Competition Commission will be elected or appointed for a 4-year term and can be re-elected or re-appointed.

To override the opinion of the Public Council of Integrity that a candidate judge fails to meet the integrity and ethical criteria, 12 votes of the Competition Commission members will be required.

7441-2

Member of the deputy faction of PARTY “PETRO POROSHENKO BLOC” Serhiy Kaplin

For a candidate to be appointed as judge of the High Anti-Corruption Court, he/she must meet one of the following requirements:

  • record of work as a judge for at least 5 years;
  • scientific degree in the legal sphere and scientific work record in the legal sphere of at least 7 years;
  • 7 years of work as a professional lawyer;
  • or a total of at least 7 years of work in the above-mentioned positions.

 

Individuals may not be appointed as judges of the High Anti-Corruption Court if they worked in the 10-year period before the appointment in public prosecution bodies or law enforcement agencies, held political positions, held a representative mandate, committed corruption crimes, or were members of the High Qualifications Commission of Judges of Ukraine or of the High Council of Justice before the Law of Ukraine “On Restoring Confidence in the Judiciary in Ukraine” took effect (April 2014).

The competition for the vacancies of judges of the High Anti-Corruption Court will be conducted by the High Qualification Commission of Judges.

If the Public Council of Integrity concludes in its opinion that a candidate for the position of judge in the High Anti-Corruption Court fails to meet the integrity and ethical criteria, then this person will not be admitted to the qualification examination.

7440-3

Member of the deputy faction of the Political party “SAMOPOMICH” Union”

 Olena Sotnyk (signed by 5 other MPs)

An individual can be appointed as judge of the High Anti-Corruption Court if he/she has:

experience of anti-corruption activity in international organizations/international courts of justice/record of work as a judge/ scientific degree in the legal sphere and a record of scientific work/ record of work as a lawyer for 7 years, or a total of at least 7 years of work in the above-mentioned positions.

 

Also, quotas will be established for High Anti-Corruption Court candidate judges without any record of work as a judge:

  • no less than 10 % – for candidates with a record of scientific work;
  • no less than 10 % – record of work as a lawyer;
  • no less than 10 % – experience of anti-corruption activity in international organizations/record of work in international courts of justice.

Individuals may not be appointed as judges of the High Anti-Corruption Court if they worked in the 10-year period before the appointment in public prosecution bodies or law enforcement agencies, during the past 5 years were members of governing bodies of a political party or had an employment relationship with a political party, were members of the High Qualifications Commission of Judges of Ukraine or of the High Council of Justice, committed corruption crimes, etc.

The Competition Commission will consist of з 9 persons, to be appointed by the High Qualification Commission of Judges of Ukraine.

A member of the Competition Commission will be appointed for a 4-year term and may not be re-appointed.

A decision of the Competition Commission will be deemed to have been taken if supported by the votes of no less than 7 members of the Competition Commission at the Commission’s meeting.

To override the opinion of the Public Council of Integrity that a candidate judge fails to meet the integrity and ethical criteria, 8 votes of the Competition Commission members will be required.

7440-4

Member of the Faction of the Political party the All-Ukrainian Union “Batkivshchyna” in the Verkhovna Rada of Ukraine

 Ihor Lutsenko

An individual can be appointed as judge of the High Anti-Corruption Court if he/she has:

  • experience of anti-corruption activity of no less than 10 years;
  • 5-year record of work as a judge;
  • scientific degree in the legal sphere and record of scientific work in the legal sphere of no less than 7 years;
  • no less than 7 years of work as a professional lawyer;
  • or a total of 15 years of the above-mentioned professional activities.

 

Individuals may not be appointed as judges of the High Anti-Corruption Court if they:

  • in the 10-year period before the appointment, worked in public prosecution bodies or law enforcement agencies, were members of governing bodies of a political party or had an employment relationship with a political party;
  • were members of the High Qualifications Commission of Judges of Ukraine, of the High Council of Justice, or of the [new] Supreme Council of Justice;
  • committed corruption crimes.

The Competition Commission will consist of з 9 persons, to be appointed by the High Qualification Commission of Judges of Ukraine.

Quotas for Competition Commission members:

  • 20% of members with a 5-year experience of anti-corruption activity;
  • 20% of members with a scientific degree in the legal sphere and a record of scientific work for at least
    3 years;
  • 20% of members with a record of work as a professional lawyer for at least 2 years;
  • 20% of members with a record of work in the legal profession for no less than three years after obtaining legal education.

A member of the Competition Commission will be appointed for a 4-year term and can be re-appointed.

A decision of the Competition Commission will be deemed to have been taken if supported by the votes of no less than 7 members of the Competition Commission at the Commission’s meeting.

To override the opinion of the Public Council of Integrity that a candidate judge fails to meet the integrity and ethical criteria, 8 votes of the Competition Commission members will be required.