Ukrainian NGOs slammed an apparent loophole inserted into the new anti-corruption court (ACC) legislation at the last minute that could defang the western-backed initiative by allowing all appeals to the courts rulings to be heard in regular courts.
If Ukraine’s international donors are not satisfied with the court then the International Monetary Fund (IMF) $17.5bn standby programme could be suspended and that may mean Ukraine will face a debt crisis possibly as soon as next year.
Newly-adopted law necessary to set up an independent ACC in Ukraine fails to meet Kyiv promises to Western donors and backers as appeals in cases of high-level corruption will be considered by the ordinary appellate courts instead of the anticorruption court, Kyiv-based NGO Anti-Corruption Action Centre (ANTAC) said in a statement on June 13.
The provision emerged in the text of the amendments, handed over to the Committee members one hour before the final voting, according to the statement.
“This amendment neither was voiced by the Head of the Committee on legal policy and justice Ruslan Kniazevych at the plenary before voting in the second reading, nor it was discussed during the Committee hearing. This amendment was also missing in the proposed by the Committee version of the comparative table for the second reading, published on the website of the Verkhovna Rada. The provision emerged in the text of the amendments, handed over to the Committee members one hour before the final voting, and today – in the published law,” ANTAC said in its statement.
The law envisages that cases investigated by the country's main anti-graft agency, the National Anti-Corruption Bureau (NABU), consideration of which started in the ordinary first instance courts, will be finished in the ordinary appellate courts, circumventing the anticorruption court, ANTAC added.
NABU is the investigative part of a triumvirate that also includes the Special Anti-Corruption Prosecutor’s Office (SAPO), which carries out the prosecutions in parallel to the General Prosecutor’s Office, but is also entirely independent from the government’s control. What has been missing is an independent court to hear the cases investigated by NABU and prosecuted by SAPO – the ACC court.
At the same time, according to previous agreements with international partners, the appellate procedure in cases currently considered by the ordinary courts, was supposed to be held in the appeal chamber of the anticorruption court, the NGO added.
The establishing of the anti-corruption court is a crucial condition for a new tranche from a $17.5bn support package agreed by Kyiv with the International Monetary Fund (IMF) in 2015. Ukraine has received $8.4bn from the IMF so far under the lender's programme.
However, the IMF and other crucial donors have yet to comment on the law so far.
"This provision would mean the amnesty for all top corrupt officials, cases against whom were transferred to the courts. Such a step is a blatant change of previous agreements and the text itself right before the voting," said ANTAC's head of board Vitaliy Shabunin in the statement. "This clause was missing in the comparative table, published on the web-site of the Verkhovna Rada, meaning the appellate procedure was foreseen in the anticorruption court."
This clause also means that verdicts against top officials will be delivered not earlier than in 2-3 years. Establishment of the court will take at least half a year, while consideration of the cases in both instances of the anticorruption court in its turn will last for around 1,5-2 years, according to the NGO.
"This mistake should be urgently corrected by voting for the necessary amendments to the law. The provision postpones verdicts in NABU cases for few more years. That is why the President has to submit urgently amendments to the law to correct the mistake," Yaroslav Yurchyshyn, head of Ukraine's office of Transparency International said in the statement.