New Building, Weak Basement: How Systemic Problems Affect the HACC

The High Anti-Corruption Court celebrates its fourth anniversary, and we decided to find out the challenges and general outcomes of the institution.

The High Anti-Corruption Court of Ukraine (the HACC) and the Appeals Chamber of the High Anti-Corruption Court of Ukraine (HACC AC) began their procedural operations on 5 September 2019. Since then, we at Transparency International Ukraine watched their work closely: attended court sessions, analysed institutional and operational aspects, and studied judgments. 

By doing that, we both identified certain trends that may be called the best practices of the HACC's procedures, and problems traditional for all courts. Let's talk about them.

4-year results of HACC and HACC APP.

4 years of operations is not very much but enough to draw some conclusions from observations.

According to the HACC website and the results of monitoring of cases, we know that the court has passed 138 sentences, of which HACC AC reviewed 55 and upheld 28 of them. Since the beginning of work, the Anti-Corruption Court has acquitted 23 and convicted 157 people for corruption crimes. Of that, 43 cases ended up with settlements between the accused and the investigation, including high-profile pleas of ex-MP Oleksandr Trukhin and ex-Minister of Environmental Protection Mykola Zlochevskyi.

HACC's special confiscation, a mechanism allowing confiscations of criminal assets and proceeds from them to the Treasury also has interesting numbers. We have witnessed 19 proceedings with civil confiscation for 4 years which brought UAH 137,546,142 to the Budget.

But enough about the numbers. Let's better talk about the most interesting cases completed this year.

Case of Mykola Chaus (Ex-Judge of Dniprovskyi Court of Kyiv)

The NABU detectives caught that prominent judge taking a $150,000 bribe in 2016. The money was found in two glass jars, one buried on the judge's land, and the other hidden in his car. 

The trial began in November 2021 when Chaus came back to Ukraine (voluntarily or not – that's another story). The defence tried to protract the case — missed sessions, filed various petitions, and delayed interrogation of the accused.

Interestingly, the ex-judge was accused of both requesting and receiving of a particularly large bribe. However, the first instance court convicted Chaus only for requesting an illegal benefit. In another part of the indictment, the court established the fact of provocation by the NABU agent who knowingly went from checking the information about the bribe requested by Chaus to creating preconditions for going further and committing the crime.

Already in June 2023, Mykola Chaus was sentenced to 10 years in prison with confiscation of property. An appeal review of his verdict is pending in the near future.

Case of Dmytro Sus (ex-deputy head of a department of Prosecutor General’s Office)

This person is known for his work at the PGO's department called the "Kononenko-Hranovskyi Department" by names of MPs from Petro Poroshenko Block, close to the former President. 

According to the investigation officials and the court of the first instance, Sus abused the powers of investigator and investigation team leader during the investigation of illegal gambling cases. In the opinion of law enforcement officers and the court of the first instance, Sus misappropriated UAH 423,000 and sold 11 game tables, 32 chairs, 10 slot machines, 1 electronic roulette, 12 monitors, and 1 metal statue of a woman.

The HACC began considering the case back in September 2019 and passed the verdict in January 2023. It's important to mention that during the consideration, the HACC confirmed most charges of the SAPO prosecutor. Yet, the court found that the charge of misappropriation of a video recorder from Sus's office was groundless since the evidence did not prove his presence during that search.

As a result, the ex-head of the GPO's department was found guilty of misappropriation and embezzlement of property obtained during searches and sentenced to 9 years in prison with deprivation of the right to hold certain positions for 3 years and confiscation of property. The HACC AC reduced the sentence to 7 years based on the results of appellation review.

Case of Ruslan Solvar (ex-People's Deputy of Ukraine)

Ruslan Solvar is People's Deputy of Ukraine of the 7th and 8th convocations. He is accused of illegally received compensation from the Verkhovna Rada for renting a hotel room.

The fact is that People's Deputies can receive compensation for renting hotel rooms if they do not own any housing in Kyiv. That was the case for Solvar up to a certain point. Situation changed in 2017 when the MP inherited an apartment in the capital. Moreover, he even declared it immediately but still received a hotel rent compensation. Solvar decided to apply for termination of his compensation only in 2018 after numerous media materials about that fact. 

The first instance acquitted Solvar – according to the court, his actions should have been qualified as fraud, and not abuse of power. However, the court of appeal disagreed with the verdict, found Solvar guilty, and sentenced him to 3 years of real imprisonment with deprivation of the right to hold certain positions for one year and a UAH 8,500 fine. 

Now the case is under cassation appeal and, due to the lack of sustainable practice of application of Article 364 of the Criminal Code of Ukraine, it is submitted for consideration by the Joint Chamber of the Criminal Cassation Court within the Supreme Court.

HACC's operational problems that may be considered solved.

The key to the positive perception of the Anti-Corruption Court by society was the involvement of a considerable number of partners, including international ones, in supporting its creation and ensuring the work. That affected both the selection of judges and the court's staff, and funding of operations.

However, this is not just about financing. An indisputable positive thing is the high-quality training of judges and staff members both before the start of the court's procedural activities and during the performance of their powers. Specialization of judges also plays a role since they are tailored for corruption cases having deepest knowledge in that area. However, this does not exclude consideration by the HACC judges and conviction of persons for other categories of crimes.

HACC's corporate culture might also contribute to its success. For example, staff members and judges often attend law events, communicate with lawyers, support law students, and even participate in running races.

The quality of materials sent to the HACC by pre-trial investigation bodies also plays an important role in its work. NABU and SAPO whose proceedings are considered by the HACC also have specialization, quality funding, and special hiring procedures.

Since its creation, the HACC managed to address (in whole or in part) the following issues:

• the first instance of the HACC received its own premises,
• HACC and HACC AC judges were empowered to bring to justice for contempt of court,
• website was created on a separate platform with all information about the HACC's justice and operations,
• more proactive and clear communication between the court and the public,
• we have examples of prompt advance communication about pending consideration of high-profile cases,
• possibility to read out only the operative part of sentences (only under martial law).

Still, many problems are unresolved.

The first thing that comes to mind is the lengthy consideration of individual cases. As practice shows, you must wait for a big fish quite a long time.

For example, the case on charges of Oleksandr Onyshchenko accused of organizing embezzlement of public funds during the production and sale of natural gas under joint venture agreements with Ukrgasvydobuvannia Joint-Stock Company came to the court on 17 October 2019. The preparatory proceedings lasted 7 months, and the trial began on 13 May 2020. During that time, the court called witnesses twice and 6 times appointed free lawyers. All of that despite of the fact that the case is heard in absentia, i.e., without the presence of the accused. The court debates continue as for now.

The "gas case" episode regarding Roman Nasirov was received by the HACC on 24 October 2019. Nasirov is accused that in 2015-2016, acting in the interests of MP Onyshchenko, he illegally instructed the heads of regional and local units of the State Fiscal Service to approve tax deferral decisions for Khas Firm LLC, Karpatnadrainvest LLC, and Nadra Geotsentr LLC. The preparatory court session was scheduled for 8 November 2019 and ended on the same day. However, the volume of proceeding materials to be examined by the court is impressive – more than 170 volumes. It is worth mentioning that Nasirov has been in custody for a long time, since 21 October 2022, and therefore the speed of trial, among other things, is about ensuring the rights of the accused.

Mykola Martynenko's case on appropriation of funds of NNEGC "Energoatom" and State Enterprise Eastern Ore Dressing Complex came to the HACC on 26 September 2019. And the trial was scheduled after 2 months of preparatory proceedings. The court is still considering that proceeding and postponed consideration at least three times due to the failure of the defence to appear. It even brought the issue of bringing lawyers to disciplinary responsibility. HACC appointed free lawyers 13 times in that case. In addition, numerous witnesses are currently being interrogated, which further slows down the consideration.

In other words, the reasons for extremely long trials may be different. From the heavy workload of judges (each judge has 229 cases and materials on average), to the protraction of trials by defence. Sometimes delays lead to the expiration of the statute of limitation and the release of accused from criminal liability.

Uncertainty of some legal regulations and, as a result, lack of established practice.

The quality of law enforcement directly depends on the quality of the applicable legislation. And here come may criminal justice problems both at the stage of pre-trial investigation, and at the stage of judicial proceedings. They are, inter alia, challenges in assessment of validity of suspicions and determining the sum of bail as a measure of restraint. Also, the absence of consistence court practices for certain elements of Article 364 of the Criminal Code of Ukraine and qualification of refusal to submit tax returns for religious reasons.

Recently there has been a lot of talk about improving the legal grounds for concluding plea agreements. We have already mentioned that there have been 43 such agreements during the court's work, and some of them are questionable. SAPO prosecutors sometimes unreasonably change charges, which do not correspond to the actual circumstances of the case. Judges approve those agreements without checking the evidence proving the plea.

Here are some of many challenges of the High Anti-Corruption Court.

1. A short time for conducting a trial between the indictment and the expiration of the statute of limitations for criminal prosecution. We noticed that trend, for example, in cases on unreported income by People's Deputies. Then, after a slight protraction by defence, the court closed the cases.
2. Abuse of procedural rights. There is a big potential for manipulations there because the Criminal Procedure Code of Ukraine does not explicitly prohibit such conduct. A prominent example is the case for prosecution of judges of the District Administrative Court of Kyiv where the participants even filed a claim to the National Agency for Corruption Prevention for failure to consider their submissions on the conflict of interests of judges. 
3. Lozovyi's amendment. The amendment does not regulate the matter of combining various criminal proceedings and that almost led to the closure of high-profile cases with potential losses to the state – the cases of Ukrainian Railways, Dubnevych Brothers, and Oschadbank. 
4. A small number of claims for civil confiscation of unsubstantiated assets. And lack of sustainable HACC practices on that matter.
5. Expanding the powers of the Anti-Corruption Court to consider other categories of cases. For example, in May 2022, the court began considering cases on the imposition of sanctions on the assets of Russian accomplices, although the number of judges remains the same. In addition, there are ideas that the HACC must also consider corruption administrative offences. Therefore, it is necessary either to increase the number of judges and proportionally the number of court staff, or to prohibit adding new categories of cases to the HACC's jurisdiction.
6. Trend of early release of prisoners convicted by the HACC. Such precedents became possible because local courts, and not the High Anti-Corruption Court, have the power to judicial control over the serving of sentences.
7. The tradition of classification of certain sentences continues. This negatively affects confidence in the court, especially when there are reasonable doubts about the legality of certain procedural actions of a public prosecutor. 

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Problems that arise in criminal justice should be resolved fast. After all, the larger their number, the more difficult it will be to consider cases and the more controversial the practice of applying the law will become.

In addition, the trend of expanding the competence of the High Anti-Corruption Court without increasing its staff is negative. The functioning of specialized courts is established by the Constitution of Ukraine for a reason. And this specialization of the HACC should be preserved.

It is also worth mentioning that the case on the constitutional submission of 49 People's Deputies regarding the constitutionality of the Law of Ukraine "On the High Anti-Corruption Court" has been still under consideration by the Grand Chamber of the Constitutional Court of Ukraine since 6 October 2020. And no one knows why the Grand Chamber cannot complete it and confirm that the law is constitutional.

Here we note that the Anti-Corruption Court coped well with the risks of a pandemic and a full-scale invasion. Now we may only guess how the institution will cope with the consequences of a nuclear disaster :).

High-quality selection of judges and staff, proper funding of the institution's operations is the key to its effectiveness. It's important for the HACC management to maintain the corporate culture of the court and ensure its strategic development. In the end, that experience can become the best practice for other courts to follow.

Transparency International Ukraine