What kind of cases does the HACC consider?
Each court considers a specific type of case — this is called subject-matter jurisdiction. The law stipulates that the HACC should consider corrupt criminal cases against special subjects — MPs (both from the Verkhovna Rada and local councils), judges, and all others whom we call high-rank officials.
In 2 years, the Anti-Corruption Court has already managed to pass 45 sentences of the first instance, of which 37 are guilty and 7 are acquittal. Regarding another verdict, the information has not been made public, so, we do not know its operative part. Out of the total number of sentences, 4 HACC sentences were overturned after the notorious decision of the Constitutional Court of October 27, 2020; these cases concerned “unconstitutional” false declaration. In turn, in two years, the HACC Appeals Chamber reviewed 21 cases, and, in particular, has already overturned one of the sentences of the court of first instance.
In total, over the two years of its existence, the HACC has considered not a lot and not a little, but more than 19,000 motions, applications, and complaints.
In 2 years, the Anti-Corruption Court has considered criminal cases against three MPs (two of them were acquitted, and one was found guilty), two heads of local councils, 11 (!) judges (two of them were acquitted), one prosecutor, 4 heads of enterprises, 6 lawyers; and 17 representatives of other professions, two were acquitted.
Acquittals: pros and cons
Can it be considered a negative phenomenon that the HACC has already passed 6 acquittals? Of course not; the purpose of creating the Anti-Corruption Court was not only guilty verdicts.
The main task of the court is to consider the case fairly and impartially on the basis of evidence provided by the parties. In Ukrainian criminal proceedings, the principle of adversarial parties applies, that is, prosecutors and lawyers are free to present their evidence to the court and try to convince the court of its indisputability during the trial.
Adversarial principle is the “wall” that separates us from the repressive Soviet and Russian justice, when the court has a single goal — to punish. Cases where the court decides that the defense’s arguments are stronger and passes an acquittal are normal in a truly legal country.
Thus, recently, the HACC has acquitted judge Denysiuk, who was suspected of making an illegal decision. Based on the results of the case consideration, the court noted that the prosecutor could not prove all the circumstances of the case. Since the charges were based on assumptions, and the evidence provided did not confirm that the judge had committed a crime, Denysiuk was found not guilty.
However, this decision of the HACC can hardly be called an ideal example of an unambiguous acquittal. Despite the court’s position, experts have several significant comments on the motivation of the HACC, so, there is no unanimous agreement with this decision.
“Large fish” and its leverage on the court
Consideration of proceedings can last for years because a lot of time is spent on familiarizing with the materials by both the court and the prosecution and defense parties. At the same time, it is important to understand that the larger the “fish,” the more resources it has — starting from the ability to hire qualified lawyers, and ending with connections and opportunities for administrative and extra-legal pressure.
Take, for example, the cases of ex-MPs Presman, Levus, Solvar, and Chernenko. The circumstances of these cases and the qualification of a criminal offense are intertwined: all of them were accused of illegally receiving compensation for housing in Kyiv during their parliamentary cadences. Each of these cases has already come to an end: Presman and Chernenko made a plea deal, and the court found Levus and Solvar not guilty.
In the case of the first two convicts, the consent of the defense and the prosecution contributed to a quick ending — they agreed on the necessary punitive measure and the conditions for serving it. In the cases of Levus and Solvar, cooperation on the part of the defense during the trial played an important role: lawyers came to the meeting on time and behaved in accordance with the norms of lawyer ethics. It is at this stage that cases involving the accusation of “large fish” most often are held back because the parties are trying to delay the process.
The situation with such high-profile cases as Tatarov’s accusation or the Rotterdam case+ is entirely different. If you follow their chronologies, even with the naked eye, you can see how often external figures holding senior government positions sabotaged bringing these cases to court.
Prosecutor Vitalii Ponomarenko tried to close the very same Rotterdam+ case three times. This is despite the fact that the expertise initiated by detectives estimated losses from the scheme at UAH 39.9 bln. Then Prosecutor General Venediktova replaced Ponomarenko with Denys Demkiv, who, two weeks after the appointment, tried to close the proceedings as well. Absurd, isn’t it? But for the reopening of the proceedings by the HACC Appeals Chamber and Maksym Hryshchuk, acting head of the SAPO, the possibility of bringing the perpetrators to justice could have been forgotten.
The case on charges against Tatarov can generally be considered “dead.” This was caused by repeated interference by Venediktova during the investigation: she changed the group of prosecutors illegally, ignored the rules of HACC jurisdiction in this case and the legal requests of NABU detectives to return the proceedings to them.
Unfortunately, these two situations are far from the only examples of how interested parties are trying to influence not only the HACC, but also the entire anti-corruption infrastructure. As long as the court’s activity is interfered with, we do not have the right to demand prompt consideration of high-profile corruption cases.
Bail and forfeiture. Where do the funds received by the court go?
If the main task of the court is to resolve criminal cases legally, then the main task of criminal liability is to protect human rights and freedoms. It is for such protection that criminal liability includes such measures as, for example, forfeiture. The logic of this process is that a certain corrupt official who committed embezzlement of budget funds caused harm to society. Then forfeiture is applied to such persons, that is, the stolen money is returned.
The bail mechanism works somewhat differently because it is a safeguard against ensuring that a person does not violate the obligations assigned to them. The bail is set based on the calculation of the amount which the person will be “unwilling” to part with. These funds are deposited to a special HACC deposit account opened with the State Treasury Service, and in case of violation of obligations, the amount is collected to the State Budget of Ukraine. At the same time, the funds recovered irrevocably should also not be perceived as the state’s profit — in essence, this is how the person involved is punished for non-fulfillment of their procedural obligations.
Since HACC’s creation, in high-profile corruption cases, bail amounting to UAH 900 mln was posted, of which more than UAH 65 mln was irrevocably collected to the budget. In particular, in the case of Maksym Mykytas, the state has collected UAH 30 mln after Mykytas violated the conditions of the interim measure — he communicated with two other suspects.
What needs to be done to make the court’s work more efficient?
As we can see, the Anti-Corruption Court is already successfully performing exactly the functions that the public and the authorities expected from it from the very start on September 5, 2019. However, of course, not everything is that simple. Among the obstacles that prevent the HACC from fully performing the task assigned to it, we can identify the following.
- Lack of understanding between the HACC and the legal environment.
Nowadays, the Ukrainian National Bar Association is very actively countering the HACC in the media field. Lawyers have repeatedly accused the court of “working in an accusatory manner.” However, in practice, according to the monitoring data of Transparency International Ukraine, such a manner has not been established.
On the contrary, quite often lawyers who are also members of the lawyer’s self-governing bodies and consider disciplinary cases of lawyers, also represent the defense in the HACC. In fact, this is not prohibited, nor is it a violation. However, how, in case of violations of the norms of ethics and process by such lawyers (which did happen!), these people will punish themselves — the question remains unanswered. This makes it impossible to actually bring the lawyer-violator to justice.
- The lack of possibility for the HACC to bring people to justice for contempt of court.
All courts have this right, except for the higher specialized ones, which also include the HACC. As of today, the Verkhovna Rada has registered a draft law to eliminate this gap, but it is not yet known when parliamentarians will consider it.
What else needs to be done to improve the performance of the HACC?
- Reforming the High Council of Justice (HCJ), which today is the main leverage on the court. Thus, recently, there has been a practice of systematically bringing judges, including judges of the HACC, to disciplinary action — for instance, disciplinary actions in relation to Timur Khamzin and Andrii Bitsiuk. The system of bringing to disciplinary action is an important mechanism in legal proceedings, but too often it is selective. Therefore, experts repeatedly emphasized the repressive nature of the HCJ’s work in relation to the HACC.
- Meeting the need for the HACC to have its premises. Last summer, the Verkhovna Rada handed over the premises at 41 Peremohy Avenue in the capital to the Anti-Corruption Court. However, the already transferred building still needs to be adapted to the needs of a modern court, which requires a significant modification.
- Settling issues of judges’ residential and property security, as was repeatedly noted by the court.
So, how much can a court achieve in two years, under pressure, supervision, and expectations from all sides? As you can see, a lot because both the expert and specialized community have already felt the difference between “before” and “after” the launch of the HACC.
Two years of work is just a beginning. Decisions in high-profile corruption cases, many questions, answers, and unexpected challenges that still need to be overcome by the Anti-Corruption Court lie ahead of us. However, even today, we can say that the work and decisions of the HACC are moving in the right direction, meeting the needs for which this court was created.