Opinion on the Draft Law on Anti-Corruption Courts and on the Draft Law on Amendments to the Law On the Judicial System and the Status of Judges (Concerning the Introduction of Mandatory Specialisation of Judges on the Consideration of Corruption and Corruption-Related Offences) (6–7 October 2017; excerpts)

IV. Conclusion

69. The Venice Commission welcomes the recent statements made by the President of Ukraine that there is an urgent need for creating an independent and “efficient special anticorruption judicial body”, to be formed on a competitive basis from judges with impeccable reputation, in line with Council of Europe and Venice Commission standards. The Commission furthermore notes that in the view of the international community, the only way forward in the fight against high-level corruption in Ukraine is the prompt establishment of a high specialized anti-corruption court (HACC), as foreseen in the Law “On the Judicial System and the Status of Judges” (LJSJ), whose judges are selected in a transparent procedure with international involvement.

70. The Venice Commission acknowledges that Ukraine has launched a comprehensive reform of the judiciary which includes significant constitutional and legal amendments—i.a. with respect to judges’ appointment—, the reform of the High Council of Judges (HCJ) and the High Qualifications Commission of Judges (HQC) and an evaluation procedure for all sitting judges with regard to competence, professional ethics and integrity criteria. This reform is clearly aimed at reconstructing the Ukrainian justice system in accordance with the standards of the Council of Europe and securing the rule of law in Ukraine. While this is a promising and commendable—but still on-going—process, the Venice Commission welcomes the current initiative to take additional, specific and rapid measures to establish a HACC competent for high-profile corruption cases—bearing in mind the urgency of the matter and the fact that such cases are particularly sensitive and complex.

71. The Venice Commission is of the opinion that many of the provisions of the draft law on anti-corruption courts (draft law No. 6011) provide a good basis for the establishment of the HACC in line with Council of Europe and Venice Commission standards. That said, several recommendations should be taken into account, in particular, to reduce the risk that the law could be considered unconstitutional.

72. While it will ultimately be up to the Constitutional Court, in a given case, to decide on the constitutionality of the law, the Venice Commission takes the view that the HACC has clear characteristics of a specialised court, rather than a special or extraordinary court, and that it does not jeopardise the unity of the judiciary. That said, special rules for anti-corruption courts and judges (including their appointment and status) which deviate from the general LJSJ provisions should be limited to what is necessary for them to work effectively.

73. Therefore, the Venice Commission formulates the following main recommendations:

Having regard to the recent call by the President of Ukraine for the creation of an independent and “efficient special anti-corruption judicial body”, and in order to dispel any doubts about the constitutionality of the legislative procedure, the Venice Commission invites the President of Ukraine to submit his own draft law on anticorruption courts—which should be based on the recommendations contained in the present opinion—to the Verkhovna Rada, in an expeditious manner. Draft law No. 6011 needs to be withdrawn to make such a legislative initiative possible.The key components of draft law No. 6011 should be maintained, namely the establishment of an independent HACC and appeal instance whose judges are of impeccable reputation and are selected on a competitive basis in a transparent manner; temporarily, international organisations and donors active in providing support for anticorruption programmes in Ukraine should be given a crucial role in the body which is competent for selecting specialised anti-corruption judges, similar to the role envisaged for them in draft law No. 6011; the jurisdiction of the HACC and of the appeal instance should correspond to that of the National Anti-Corruption Bureau (NABU) and of the Special Anti-Corruption Prosecutor’s Office (SAPO), subject to the requirement that the courts’ jurisdiction be precisely defined by law.It needs to be ascertained that the Appeals Chamber is in effect separate from the rest of the HACC, in particular regarding its composition. Furthermore, the uniform application of the law by cassation courts should be ensured by the Grand Chamber of the Supreme Court in accordance with the general rules.Additional safeguards should be introduced to ensure that the decision-making body in the appointment procedure of judges is sufficiently independent of the executive and legislative powers. This could be achieved, for example, by giving a non-political agency such as the High Qualifications Commission of Judges (HQC) the right to nominate members to that body, in addition to the members proposed by international donors. Another option would be not to create an additional body such as the proposed Competition Commission but, as a temporary measure pending completion of the judicial evaluation, to include experts proposed by international donors as supernumerary members of the HQC to participate in the selection procedure for judges in the anti-corruption courts and to give them a crucial role in that procedure. The procedure for involving international organisations and donors in the selection procedure needs to be regulated more in detail so as to provide for a high degree of transparency and compliance with the Constitution.

74. In addition, the draft law needs to be further refined in order to provide for a clear and precise legal framework. In particular, care must be taken to harmonise the draft with existing legislation and, where necessary, to provide for amendments to the LJSJ. Clear legal provisions which allow determining the competent court and the procedure to be followed in cases involving both offences which fall under the HACC jurisdiction and connected offences which do not, are also required. Special rules on self-governing bodies for anti-corruption judges and disciplinary proceedings against them do not appear necessary and should be removed. The level of remuneration for such judges should be reconsidered; it should be commensurate with the increased demands of their position but should not differ too much from generalist judges’ remuneration.

75. As far as draft law No. 6529 is concerned, the Venice Commission wishes to stress that it deviates from the current law and international obligations of Ukraine to set up a specialized anti-corruption court. The Commission cannot see how the appointment of specialised judges at all general local courts, courts of appeal and the Supreme Court could be justified and be implemented in practice. It appears questionable whether the referral of all kinds of corruption related offences to the specialised judges would be an effective tool for enhancing the fight against high-level corruption in particular. Furthermore, the scope of competences of the specialised judges under draft law No. 6529 is unclear, and the absence of any specific safeguards in the selection procedure and of any specific measures to protect the judges’ independence and safety is highly unsatisfactory. The aforementioned shortcomings conflict with the requirements on specialised (anti-corruption) judges established by competent Council of Europe bodies, in particular, the CCJE and GRECO.

76. The Venice Commission remains at the disposal of the Ukrainian authorities for further assistance in this matter.

Quelle: European Commission for Democracy through Law (Venice Commission), Opinion on the Draft Law http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)020-e