Obstacles in the work of the Anti-corruption Court

Sentences seem to be one of the key indicators Ukrainians apply to determine the effectiveness of the fight against corruption. And no wonder since they provide the very fact of the court decision, the type of punishment, and a sense of justice, which Ukrainians need so much nowadays.

In Ukraine, sentences for high-profile corruption are passed by the High Anti-Corruption Court, and it seems that it was in 2023 that the HACC faced the most questions in all four years of its existence.

A few important things need to be explained. 

First of all, it is not only the court but also the prosecution that must put in significant effort before sentencing. The very punishment for corruption, which society expects for the most part, requires a lot: properly collected evidence, thought-out argumentation on the part of prosecutors, and harmonious practice of the court itself, which should be based on specific, unambiguous provisions of the law.

Secondly, the court, including the HACC, is an element of the criminal justice system. Even the most ideal institution operating within a system cannot produce a good result if other elements have shortcomings. The same is the case with the HACC: despite the especially careful selection of judges even before the launch of the court and the overall high-quality work of the body, it was in the fourth year of its existence that it was "caught up" with many problems that affect other courts. 

Lawyers of Transparency International Ukraine have monitored the work of the HACC from the very beginning of its operation. This year, as before, we presented another report with the data of our monitoring, where we considered in detail the main issues of the Anti-Corruption Court. 

As a result of our research, we identified challenges in the work of the court, which depended on both the institution and external factors. It was usually these moments that triggered the questions of society with regard to the operation of the court.

First of all, they include:

• observance of reasonable terms of trial;
• plea agreements in high-profile corruption cases and classification of sentences based on the results of their consideration;
• the impact of the "Lozovyi’s Amendments" on the consideration of cases.

Of course, these are just some of the things that impact the effectiveness of the trial. In fact, there are many more, but we are sure that with the fastest solution to these problems, there will be much fewer questions to the HACC.

Reasonable terms: how does their observance affect the operation of the court? 

As we mentioned above, many factors influence the trial. Thus, the speed of consideration of cases is influenced, in particular, by the complexity of these proceedings, the number of the accused, their behavior. 

For example, if there are many documents, videos, and audio recordings in the case that need to be considered by judges, as well as several dozen witnesses who need to be questioned, it is difficult to expect that the court will pass a verdict in less than a year. And if judges have several dozen such cases, a quick and high-quality trial is a really difficult task.

Quite often, consideration is delayed due to the postponement of meetings by judges. As part of the monitoring in 2023, our lawyers attended 390 hearings. Of these, 244 (63%) took place and 146 (37%) were postponed. Common reasons for postponement include:

• non-appearance of the suspect/accused (in 54 cases out of 146);
• without providing a reason (in 22 cases out of 146).

Thus, the non-appearance of suspects may be for valid reasons and not. The law determines that valid reasons include, for example, the death of a family member, a natural disaster, and other circumstances that objectively make it impossible for a person to appear at the hearing. Since it is objectively impossible to provide an exhaustive list of valid reasons, this is frequently and quite deliberately abused by the parties to the cases to delay consideration and, ultimately, wait for the expiration of the statute of limitations. 

For example, last year, MP Shol asked to postpone the consideration of the case due to her participation in a meeting of the parliament, and MP Anna Kolisnyk, due to the fact that her lights were turned off. This contributed to the delay in the consideration of cases against them and, eventually, these proceedings were closed because the statute of limitations had expired.

According to the legislation, it is the court that must ensure compliance with reasonable terms of consideration. It has appropriate tools to do this: the compulsory bringing of the defendant to the court, the imposition of a monetary penalty, the change of an interim measure. 

However, unfortunately, the HACC does not always use these tools, and if it does, the amount of a fine for failure to appear in court is extremely low: in 2023, they ranged from UAH 1,342 to UAH 5,368. In addition, the court cannot apply such penalties to lawyers, who can also ignore the court hearing without valid reasons.

Failure to comply with reasonable trial time limits may also result in an expiration of statute of limitations for criminal prosecution. After all, reasonable terms of trial are also based on the statute of limitations. If the court does come to a conclusion about the guilt of the accused, as a general rule, some punitive measures should be applied to this person. If the statute of limitations has expired, then the court can only state the guilt of the person and release them. And this is provided that the defense will not apply for exemption from criminal liability due to the expiration of the statute of limitations. In this case, there can be no mention of a statement of guilt.

As of October 2023, when we completed this stage of monitoring, the judges of the first instance of the HACC released 21% of all the defendants from criminal liability or punishment due to the expiration of the statute of limitations. And this number is growing. 

For example, this might have been the case with Iryna Koval, the ex-director of the state-owned enterprise Ukrmedproektbud, and Ihor Kuchma, her associate and ex-director of LLC Ukrprofmed, who were convicted by the HACC at the end of December 2022. But the HACC Appeals Chamber did not have an opportunity to consider this case until December 9, 2023, and it was then that the statute of limitations expired. However, the HACC AC acquitted these persons by overturning the conviction of the first instance.

The ethics of the participants in the trial are also an issue, in particular, abuses that can be committed by both the prosecution and the defense. 

There are many options for such abuses. Unreasonable disqualifications and motions, lengthy process of familiarization with the materials of criminal cases, and other tricks of lawyers can often affect the rights of the accused and the suspect in the first place. The court cannot proceed to the consideration of the case on the merits for a long time and decide whether the person committed a crime or not. Because if no crime was committed, all restrictions on the rights must be suspended. 

Such abuses can also be aimed at "stalling" the trial, and the CPC of Ukraine provides a limited range of means by which to respond to such actions. Thus, HACC judges apply the principle of inadmissibility of abuse of procedural rights, which, although not defined in law, is common law. In favor of this argument, the relevant position of the Supreme Court is provided. 

For example, the CPC of Ukraine does not contain provisions that would prohibit the use of obscene language in procedural documents. But that doesn't mean it can be used. In the practice of the HACC AC, there are decisions in which judges recognized the use of obscene language as an abuse of procedural rights.

In addition, HACC judges have the opportunity to bring to administrative liability for contempt of court. Since February 11, 2022, HACC judges have been empowered to fine participants in the proceedings for contempt of court. The necessary changes were introduced to the Code of Administrative Offenses, TI Ukraine emphasized their expediency many times. 

Contempt of court is expressed in a malicious evasion of the appearance of a witness, victim, plaintiff, defendant in court, in disobedience of citizens to the order of the presiding judge, in violation of the procedure during the hearing. That is, we are talking about actions that indicate a clear contempt of court or the rules established by it. The penalty for such offenses is a fine of UAH 850 to UAH 2,550.

Unfortunately, in the practice of the HACC, we have established only one case when a judge brought a lawyer to such liability. But there are many more situations when lawyers argue with the presiding judges, violate the procedure of the court hearing, and otherwise express their contempt of court. Therefore, the court should undoubtedly respond more often to such violations. 

Plea agreements in high-profile corruption cases: why are citizens sometimes dissatisfied with them?

In 2023, the HACC approved several plea agreements in corruption cases, and the public had questions about some of them.

In general, a plea agreement is a legal "compromise" between the prosecution and the suspect. To avoid abuse, these agreements should be checked by the court. 

Thus, the terms of the agreement should correspond to the interests of society; it depends on the gravity of the crime and the actual ratio of public and private interests. Of course, the agreement should not violate the rights, freedoms, or interests of the parties, and must necessarily be voluntary.

By concluding an agreement, the parties can agree on the punishment, the amount of damages to be compensated and the conditions under which the punishment will not be imposed, for example, when it comes to the so-called suspended sentence. It was this, as well as generous donations of the defendants in high-profile cases, that caused public outrage.

For example, in early August, the HACC approved Mykola Zlochevskyi's agreement with a SAPO prosecutor. As a result, the ex-minister of ecology pleaded guilty and paid a fine of UAH 68,000 for a "super bribe" of USD 6 mln, as well as more than UAH 660 million in assistance to the Armed Forces of Ukraine. Similarly, under the agreements, ex-MP Oleksandr Trukhin transferred UAH 6 mln for the needs of the army, and the suspended mayor of Poltava Oleksandr Mamai pledged to pay UAH 2 mln. 

The expediency of the agreement in the Zlochevskyi's case was questioned due to an incomprehensible change in the article the ex-minister was charged under. Back in February 2023, Zlochevskyi was accused of organizing bribery of a particularly responsible official. For this, he could be imprisoned for 5 to 10 years, with or without confiscation of property.

But the SAPO prosecutor decided to mitigate the article of accusation for "abuse of influence"; that is, bribery of a person who, due to their connections with the official, can resolve some issue. For this, the law establishes a fine of UAH 17,000 to UAH 68,000, a restriction of liberty from 2 to 5 years, or imprisonment for up to 2 years. 

An important question arose: which is better: supporting the army now or a fair conviction (if the guilt is proved) later? The opinions of the participants in the discussion were divided. 

In our opinion, compliance with the law is important in the process of approving plea agreements. If the national law does not grant the discretion to impose penalties below the sanction of the article, then it is not possible to change the charges only to approve the agreement. Moreover, all these agreements must be properly communicated so that there is no room for manipulation and speculation.

The fact that the court does not have high-quality tools to verify the correctness of the article the accused is charged under when the agreement is submitted for approval also causes problems. The SAPO head states that no donation affects and can affect the legal qualification of the person's actions.

Another problem associated with sentences under agreements is their classification. Such court practice does not comply with the current legislation, the principles of publicity and openness of court decisions, established by the Criminal Procedural Code of Ukraine and the Law of Ukraine On Access to Court Decisions.

For example, the sentences on the charges of Valerii Patskan, the ex-chair of the Accounting Chamber, as well as Mykola Zlochevskyi, are closed, and the grounds for their closure are unclear. It seems that judges do not have the technical ability to restrict access to only a part of the sentence, so the state enterprise Information Judicial Systems and related public authorities need to address this problem, namely, to develop and introduce a technical possibility to conceal from public access certain parts of court decisions, the disclosure of which may harm criminal proceedings.

The unification of the practice of assessing public interest when approving plea agreements by the HACC judges will solve the problems raised in this part. It is also worth using judges as speakers to communicate the content of classified sentences, in particular, regarding the conditions of the agreement that may be disclosed. The parliament, for its part, should give judges the authority to evaluate the entire array of evidence by which the prosecutor substantiates the guilt of a person when assessing the content of the plea agreement. 

And, of course, the problem of "Lozovyi's Amendments"

Over the past year, we have witnessed many cases of closing criminal proceedings due to the expiration of the terms of the pre-trial investigation. 

Among them is the case of PrivatBank, where the decision to close it has not yet been adopted, but the problem with the deadlines is stated at the level of the HACC AC. These also include cases of Ukrzaliznytsia, the Dubnevych brothers, Oschadbank, as well as Rotterdam +, in which the first instance closed the proceedings, but the HACC Appeals Chamber overturned these decisions. 

The law that introduced the "Lozovyi's Amendments" states: "The changes do not have a retroactive effect in time and apply to cases in which information about a criminal offense is entered into the Unified Register of Pre-Trial Investigations after the introduction of these changes." That is, MPs seemed to indicate exactly how to extend the terms of the pre-trial investigation in the old and new criminal proceedings, but they did it extremely unsuccessfully. 

In their explanation, parliamentarians used words and terms that do not have an unambiguous understanding in the vocabulary of criminal procedural law. Since law enforcement officers can combine and separate criminal proceedings, the procedure for extending the period of pre-trial investigation in joint criminal proceedings remains unclear, when the first of the joint cases could have begun long before the adoption of the "Lozovyi's Amendments."

The situation was further aggravated by the inconsistent and unpredictable practice of applying these changes by the Supreme Court. Some judges believed that the new procedure for extending the terms of pre-trial investigation did not apply to "old" criminal proceedings, while others were convinced that it did. The Joint Chamber of the Criminal Cassation Court within the Supreme Court formulated the position that in joint criminal proceedings, where information was entered both before and after the entry into force of the "Lozovyi's Amendments," the period of pre-trial investigation had to be extended in a new way. And this is contrary to a special instruction in the law.

As a result, various judges interpreted these changes in the CPC in different ways, the established practice of applying the "amendments" was never developed, and high-profile corruption cases were closed. 

However, not all "Lozovyi's Amendments" should be considered negative. For example, the extension of the period of pre-trial investigation by the investigating judge, and not by the prosecutor, after serving the person with a suspicion notice, increases the guarantees for an independent assessment of the need for an extension of the period. After all, the head of the prosecutor's office, unlike the court, remains a representative of the prosecution; that is, they are an interested party.

In December, MPs made an attempt to improve the provisions on the terms of pre-trial investigation. They removed the time limit for pre-trial investigation without suspects from the CPC.

But the serious disadvantage of these amendments remains. It is about the unconditional obligation of the court to close the criminal proceedings if the terms of the pre-trial investigation have expired. 

This provision, on the one hand, can be useful. For example, if the prosecution delays and does not submit the indictment to the court for a long time, this definitely violates the rights of the defense, so there should be an appropriate reaction.

On the other hand, what impact on the rights of the suspect or the accused will a 3-day delay in filing an indictment have? This was the reason to overturn the sentence of Judge Ponomarenko, who was sentenced to imprisonment for 2 years for influencing the decision of another judge.

Therefore, the discussion about the terms of the pre-trial investigation should be conducted in terms of the admissibility of evidence, as well as the reasonableness of the terms of proceedings against the person. Currently, we are reaping what was sown by different interpretations of the CPC of Ukraine by prosecutors, lawyers, and judges.

***

Effective hearing of high-profile corruption cases is one of the most important elements of the anti-corruption system. Over the four years of its operation, the HACC has shown a fairly high level of performance. However, there are still examples that highlight problem areas and provide opportunities for improving the work of the Anti-Corruption Court. 

Therefore, we are sure that both the institutions and the parliament need to consider our recommendations: both when amending the legislation and when applying it. Thus, we will be able to strengthen and make the work of the HACC more effective. 

Pavlo Demchuk, Legal Advisor at Transparency International Ukraine