The High Anti-Corruption Court’s performance: figures, facts and some conclusions
16 verdicts and drastic changes in approaches to the criminal process and administration of justice are the main results of the High Anti-Corruption Court. But is it enough?
On September 5, the youngest court in Ukraine turns one. It was created virtually from scratch, and started receiving its first cases last fall. And now we can summarize that the HACC works and fulfills its main task – to administer justice.
How exactly does it work?
Since Transparency International Ukraine was very interested in the effectiveness of the HACC even before it went into operation, the issue of analyzing its activities remained essential for us. Our organization started monitoring the performance of the HACC from July 6 based on the fact that any assessment should be balanced and justified. The main purpose of this research is to analyze the procedural and administrative matters of the court’s performance and determine certain patterns of its activities.
The monitoring aims at covering the performance of all judges, and we have chosen criminal proceedings as the unit of research. This resulted in reducing the number of cases covered by monitoring and concentrating on the process itself.
The research is still ongoing, but in less than two months, TI Ukraine’s junior lawyers are already analyzing 43 criminal proceedings, in which they have attended 64 court hearings. So, we can draw the first conclusions.
- The percentage of procedural violations is low.
On average, the percentage of procedural violations in the work of the HACC is low and comprises about 10%.
The following violations are among the more “popular” ones:
- reviewing the cases with reasonable time limits (speed of transition to the examination of evidence, speed of decision-making, and so on): this indicator was relevant in 85% of cases, and violated in 16% of them;
- the judicial examination involving all parties: this indicator was relevant in 94% of court hearings, and there were violations in 14% of those cases;
- application of measures on the violation of procedural standards (whether such measures were applied if necessary): this indicator was relevant only in 13% of the hearings attended, but violations occurred in half of them.
Most often, we recorded formal violations. For example, the appearance of judges was inappropriate (lack of robes, badges) in 23% of cases; there were violations of the due process (the participants did not always stand up). These violations have no procedural consequences, but they constitute requirements of the current legislation.
We should also mention the issue of inadequate staffing by court administrators. We recorded that documents were transferred not through the court administrator, but through the clerk in 31% out of the 85% of cases where this was relevant.
Thus, based on the initial monitoring, we can conclude that the High Anti-Corruption court adheres to the procedural requirements during the administration of justice in criminal justice. The percentage of violations is pleasantly low and indicates a high level of professionalism among judges and other process participants. Since information about a significant level of ordinary courts violations was repeatedly heard before the establishment of the HACC, it is pleasant to notice an improvement in this situation.
- Postponing the hearing.
83% of the attended hearings were held, and 17% were postponed for a number of reasons. For example, we are talking about the absence of defense attorneys, judges being on vacation or on medical leave (without indicating the information about the court hearing postponement on the web portal “Judicial Power”), the absence of prosecutors, as well as other reasons including examination of a case in The Appeal Chamber, judges being busy reviewing other cases and so forth.
Failure to attend the hearing of the defense attorney is considered to be the leading reason for the postponement. It can be explained by a combination of factors: from the participation of a defense attorney in another court trial, to attempts to delay the judicial proceeding. It is the deliberate delaying of the court trial through the abuse of procedural rights that directly affects the effectiveness and speed of the administration of justice.
- Informing the public about the deferring the court hearing.
One more issue directly related to the previous one is inadequately informing the public about deferring the court hearing. Article 27 of The Criminal Procedural Code of Ukraine states that criminal proceedings in all court levels are conducted openly.
Even though the process of notifying the parties of the postponement is a necessary procedural act, this rule does not apply to free attendees. That is, when a free attendee comes to a hearing designated on the web portal “Judicial Power”, it may turn out that such a hearing either took place earlier in the day, or was deferred.
The web portal “Judicial power” is not administered by the High Anti-Corruption Court as this function is performed by the State Enterprise “Information Court Systems.” In general, uploading data on this website is difficult to implement, but you still need to look for a way out of this situation. For this purpose, for example, you can use social networks as a possible tool for rapid reports.
What cases are tried by the High Anti-Corruption Court?
We know that the HACC deals with criminal proceedings related to corrupt activities. However, this list also includes ”popular” and “unpopular” violations, and we have found what cases the HACC review in the process of monitoring.
The three types of cases tried by the High Anti-Corruption Court are:
- embezzlement, misuse or misappropriation of another person’s property by means of abuse of office by a public official (Article 191 of the Criminal Code of Ukraine);
- abuse of power or office (Article 364 of the Criminal Code);
- acceptance of an offer, promise or receipt of undue benefit by a public official (Article 368 of the Criminal Code).
At that time, among the criminal violations that are not in “demand”, we have theft, embezzlement, extortion of documents, stamps, seals, taking them by means of fraud or abuse of office or their damage (article 357), misappropriation of property of an enterprise, institution, organization (article 206-2), publication of legislation that reduce budget revenues or increase budget expenditures against the law (article 211), and so on.
This “ranking” is quite easy to explain if we analyze criminal violations. For example, consider the crime of embezzlement, misuse or misappropriation of another person’s property by means of abuse of office by a public official.
Since the state exercises direct and indirect control over enterprises, movable and immovable property through the authorities, the alienation of such property in its favor is simple to implement. And due to the fact that such authorities also have access to the budget allocation, that is, they often control the entire process, there are very few obstacles for them to commit such crimes.
The typical “rollback” quietly falls into this category when services, goods or construction are purchased at an inflated price in collusion. After receiving money, this excess is the same illegal remuneration that is the result of criminal activity.
Article 368 of the Criminal Code of Ukraine is considered to be generally “a classic example of corruption”, exactly what comes to mind when we hear the terms “corruption” and “bribe”. The “popularity” of this criminal violation lies in its simple implementation. There is a public official who has a certain level of authority and competence to implement the functions of the state or local government in a certain area. And there is a person who aims to use the powers in their favor. Thereby, both parties win through delivering illegal benefits. Unless, of course, law enforcement officers find out about this case.
At the same time, corruption-related violations, which are technically more complex, are not committed as often. The preference is always given to “simpler” illegal actions, especially if they generate more illegal benefits.
We could draw all these conclusions just by monitoring the HACC activities. And we are sure that further research will only give us more to work with. After all, further – even more decisions and verdicts, and that is what people are waiting for.
You can treat the establishment of the High Anti-Corruption Court in different ways. For some, such an institution is a nuisance, but some perceive it as a magic pill to eliminate corruption. However, the urgency of creating this court is clearly dictated by time and public demand. And the more equitable decisions the court makes, the greater the demand for such justice will be.
Even though the organization’s experts have shared the first results of this research, the monitoring data gives us reasons to be moderately optimistic in our predictions. To be continued.
The column was co-authored by Serhii Kurinnyi, legal advisor at Transparency International Ukraine.
This material has been created with the support of the Department on Law Enforcement Issues of the US Embassy in Ukraine. The views expressed here in are the sole responsibility of Transparency International Ukraine and do not necessarily reflect the official stance of the US Embassy.