The Venice Commission has concluded that the appointment of judges of the Anti-Corruption Court can occur with a deviation from the general procedure, but it should not contradict the Constitution of Ukraine.

In a conclusion that the Venice Commission published on October 10, the Commission welcomed the recent statements by the president of Ukraine on the urgent need for an independent "special anti-corruption judicial body" to be formed on a competitive basis from among judges with an impeccable reputation and in accordance with the standards of the Council of Europe and the Venice Commission.

The Venice Commission noted the advisability of creating a Higher Specialized Anti-Corruption Court, as stipulated by the Law of Ukraine "On the Judiciary and the Status of Judges." At the same time, the Commission noted a number of shortcomings of draft law No. 6011 on anti-corruption courts of authorship of the Verkhovna Rada deputy speaker Oksana Syroyid and MPs Yehor Sobolev (the Samopomich faction) and Serhiy Leschenko (the Petro Poroshenko Bloc faction), which is being considered by the Verkhovna Rada now. In particular, the experts' concern was raised by the provisions on the return to the political mechanisms for appointing judges.

In their conclusion, the experts of the Venice Commission drew attention to the need to "introduce additional protective mechanisms to ensure an independent procedure for the appointment of judges from the executive and legislative branches."

"The fact that members of the commission are appointed by political figures or institutions (the president, the Verkhovna Rada and the Justice Minister (as suggested in draft law No. 6011) gives cause for concern, which can undermine the process of depoliticizing the judicial system," the conclusion reads.

The latest amendments to the Constitution of Ukraine (concerning justice) and the law of Ukraine "On Judicial System and Status of Judges" excluded the legislative and executive authorities (the Minister of Justice) from the procedure for appointing judges, which is now being carried out by the judiciary (Supreme Council of Justice and Supreme Qualification Commission of Judges).

At the same time, the Venice Commission in its conclusion notes that the appointment of anti-corruption judges should occur with a deviation from the general procedure - no more than it is necessary taking into account the specifics of such a court.

The Venice Commission recognizes that certain deviations from the general rules for judges and courts can be acceptable given the "special challenges for Ukraine in fighting corruption at the higher levels." At the same time, "deviations from general rules should be limited." Efforts should be made to avoid the possible impression that anti-corruption judges are different or a privileged class of judges, or they are appointed by a procedure that is not determined by the peculiarity of these courts.

The Venice Commission notes that the participation of international experts in the selection of judges is possible, but "taking into account the principle of Ukraine's sovereignty."

Experts of the Commission draw attention to the fact that "special rules for anti-corruption courts and judges (including their appointment and status), which differ from the general provisions of the Law "On the Judiciary and the Status of Judges," must be limited to the necessary level to ensure effective work."

The Venice Commission believes that the Constitutional Court of Ukraine should put an end in the issue of constitutionality of the law, and when adopting the relevant law it is necessary "to reduce the risk of recognizing the law unconstitutional."