HACC and Corruption Cases: Key Challenges, Results, and Recommendations

Since the inception of the High Anti-Corruption Court (HACC) in 2019, Transparency International Ukraine has constantly monitored its activities. Our specialists attended court hearings, studied the organizational and functional aspects of the HACC’s operation, and also analyzed the decisions adopted by it.

Through systematic and comprehensive monitoring of the activities of the anti-corruption court, we can identify both positive trends, which can be considered best practices in establishing the operation of the HACC, and the challenges it faces.

This report presents the results of the fifth stage of monitoring the work of the HACC, covering the period from October 1, 2023, to June 30, 2024, and continues the series of monitoring materials. Let us remind you that the first stage of the HACC operations monitoring covered the period from July 6 to December 6, 20202; the second stage covered the period from April 1, 2021 to July 31, 2021, the third one covered April 1, 2021 to February 23, 2022, and the fourth one covered the period from January 1 to September 30, 2023.

In this report, we analyze the trends in how corruption and corruption-related criminal offenses are considered in the HACC, and also draw attention to how the recommendations, provided following previous stages of monitoring, were implemented. We have also introduced new indicators: the duration of HACC court hearings and the assessment of interim measures proposed by the prosecution, by the court, and lawyers engaged in the monitoring.

Based on the results, Transparency International Ukraine experts determined the level of implementation of previously provided recommendations and formulated new ones that can increase the effectiveness of the HACC as an element of the criminal justice system.

Brief conclusions:

• during the reporting period, the parliament adopted several regulations that improved the legal basis for the court’s work, particularly regarding the single-judge trial of criminal proceedings and the cancellation of time limits for pre-trial investigations in criminal cases without suspects;
• the HACC enhanced the practical application of the “Lozovyi amendments” in joint criminal proceedings, with judges increasingly considering the substantive similarities between “old” and “new” criminal proceedings. The situation regarding the analysis of the elements of criminal offenses has also improved during the assessment by investigating judges of previous criminal-law qualifications concerning interim measures;
• However, there are other urgent problems concerning the HACC’s activities, including the inability to impose fines on lawyers for failing to appear at court sessions, the lack of effective regulation for combating the abuse of procedural rights, the mandatory obligation for the court to close criminal proceedings due to the expiration of the pre-trial investigation period, and the inadequacies in the legal regulation of the institute for exemption from criminal liability and punishment due to the statute of limitations.

What we suggest

For the Parliament:

• the law should stipulate that the consent of the participants in criminal proceedings is not required for the continuation of the trial in the event of a judge’s replacement;
• qualitatively finalize the draft law on the approval of plea agreements;
• eliminate the list of unjustified exceptions to the legislation regarding single-judge trials;
• balance further restrictions on access to court decisions with the principle of transparency in the judicial process;
• expand the grounds for suspending the statute of limitations and proportionally increase criminal liability for certain criminal offenses. And also change the point at which the calculation of the limitation period ends.

For the HACC:

• pay more attention to ensuring the observance of procedure in court sessions and preventing procedural abuses;
• unify the practice in the matter of suspending proceedings, preventing abuses by the defense side;
• unify approaches to assessing public interest when approving plea agreements;
• standardize the practices of the first and appellate instances of the HACC when assessing the validity of a suspicion.

For SE Information Court Systems:

• implement the technical capability to restrict public access to certain parts of court decisions when the trial has occurred in an open court session.

This report was created by Transparency International Ukraine as part of its project implemented under the USAID/ENGAGE activity, which is funded by the United States Agency for International Development (USAID) and implemented by Pact. The content of this report is the sole responsibility of Pact and its partners and does not necessarily reflect the views of USAID or the US Government.