In April 2019, newly selected anti-corruption judges announced September 5 as the date of the High Anti-Corruption Court, or HACC, launch. Ukrainian society and the international community are eagerly awaiting for the whole anti-corruption infrastructure to get in place, which is indispensable for delivering justice for the corrupt crooks.
However, there is a risk that the court may be well overwhelmed with lower-profile cases, leaving anti-corruption judges no time and possibility to consider the top proceedings. Why did this problem come up and what should be done to overcome it?
Court’s current jurisdiction
The Anti-Corruption Court was designed primarily to deal with high-profile corruption cases. It consists of the first instance and the appeals chambers and employs 38 judges in total. Each case is to be considered by a panel of three judges in any of the instances.
The issue with the jurisdiction lies in the law, adopted in summer 2018. As a part of the political compromise, the lawmakers refused to limit the scope of HACC jurisdiction to the cases investigated by the National Anti-Corruption Bureau only. Members of parliament tasked the HACC to consider other corruption-related crimes as well, which have the signs of the abuse of office, were committed by high officials, or lower-ranking civil servants in case if the illicit profit or financial damage to the state exceeds 30,000 euros. These crimes include possession and selling of arms and drugs, abuse of office by an official of a private legal entity, abuse of office by the providers of public services etc. These crimes are usually investigated by the police, the State Bureau of Investigations, the Security Service of Ukraine under the procedural guidance of the prosecutor’s office.
According to the law, consideration of all cases which fall under the HACC jurisdiction has to be stopped in ordinary courts, and the proceedings have to be transferred to the HACC, where the trials will be restarted. Some more or less clear figures from the State Judicial Administration appeared as late as May 2019. The estimates show that so far the HACC would receive around 3,600 cases, while only around 170 were investigated by the NABU. Around 1,000 of those are cases that fall under the “other corruption-related cases” notion, described above. In the meantime, the remaining 2,300 cases are those, which started after 2015, fall under the NABU jurisdiction but in violation of the law were investigated by other law enforcement bodies. These cases might have problematic prospects in the court.
During AntAC Forum on the Agenda for Justice in July 2019, HACC judge Lesia Fedorak stated that with such a workload the judges will need around half a year of non-stop work to just hold the preparatory hearings in all cases. The first verdicts in the simplest cases would be delivered no earlier than in two years.
President’s solution
To resolve this problem, on July 8, President Volodymyr Zelensky submitted to the parliament a draft law to eliminate obstacles for the launch of the HACC. The solution suggested would be transferring to the HACC only those cases that were: a) fully investigated by the NABU; or b) fall under HACC wider jurisdiction, but were started after the launch of HACC. This would enable the court to primarily focus on the top cases and allow receiving lower-level cases later and gradually.
However, this draft law was not considered by the Rada of the previous convocation. Zelensky is expected to re-submit the draft law to the new Rada and mark it as urgent.
However, due to quite a tight timeframe, if the law does not come in force by Sept. 5, the court may face collapse. It will be forced to accept all cases that will be transferred there before the new law is enforced. The local courts are more than willing to get rid of these “ballast” cases as soon as possible. This may also create a risk of a lower-level case leaving an ordinary court, pending between courts when the new law is enacted, and then getting back to the ordinary court, where its consideration will be restarted from scratch.
There will be no surprise if ordinary courts will resort to trickery attempting to transfer cases to the HACC that do not belong there at all – to restart the hearings and close them down due to the expiry of limitation. The corrupt officials might use this as a loophole for appealing the case in the higher instances or at the European Court for Human Rights.
Is there a plan B?
In order to satisfy society’s hunger for justice, the HACC should be given all possible means for impartial and timely consideration of the high-profile corruption cases. The Rada should vote for president’s draft law to correct the HACC jurisdiction in the first days of its work, starting from Aug. 29. However, since the procedure requires the committee’s approval, voting, signing by the President, publication and only then, one the next day – enactment, the timeline is indeed super-tight.
If the draft law is not enacted by Sept. 5, the HACC judges should postpone the date of the court launch before the jurisdiction problem is resolved. A few-day delay is not commensurable with the court being incapacitated for a few years.
Olena Halushka is a member of the board of the Anti-Corruption Action Center and head of international relations. Olena Scherban is a member of the board of directors at the Anti-Corruption Action Center and head of the legal department.
