On August 4, 2020, an investigating judge of the Pechersk District Court of Kyiv ordered the Prosecutor General to take the case against the judges of the Kyiv Administrative Court away from the Anti-Corruption Bureau.
Subsequently, Deputy Head of the Kyiv Administrative Court Ablov contested this decision with Kyiv Appellate Court. The court referred the case to the Criminal Court of Cassation of the Supreme Court to determine jurisdiction.
It seems strange that an Administrative Court judge would contest a decision in his favor, but the point was to achieve a decision in the court’s favor in the highest judicial instance in Ukraine, the Supreme Court.
The Criminal Court of Cassation refused to refer the appeal to the Appeal Chamber of the High Anti-Corruption Court. Such decisions contradict the law of Ukraine.
The Criminal Code of Ukraine, Art. 216, part 5 defines the list of conditions under which criminal offenses belong to the NABU’s investigative jurisdiction.
NABU detectives may also investigate criminal offenses under the jurisdiction of investigators of other bodies for the purpose of prevention, detection, termination and disclosure of criminal offenses referred to its jurisdiction by this Article, by decision of the Director of the Bureau and with the consent of the SAPO.
Article 33-1 of the CPC of Ukraine stipulates that the HACC investigative judges exercise judicial control over the observance of the rights, freedoms and interests of persons in criminal proceedings concerning criminal offenses within the jurisdiction of the High Anti-Corruption Court in accordance with part one of this article.
At the same time, CPC of Ukraine, Art. 202, provides an exhaustive list of issues that may be challenged by the investigative judge at the stage of the pre-trial investigation.
Complaints against other decisions, actions or omissions of the investigator or prosecutor shall not be considered during the pre-trial investigation and may be subject to consideration during the preliminary proceedings in court, in accordance with the rules of Articles 314-316 of this Code.
In the list of Art. 303 of the CPC of Ukraine there is no such ground for appeal as violation of jurisdiction.
That is, the Pechersk district court of Kyiv committed 2 gross violations of the procedural law:
- It went beyond its jurisdiction and interfered in the jurisdiction of the HACC.
- It reviewed the issue that is not on the list of issues subject to dispute under Article 303 of the Criminal Procedural Code of Ukraine.
Such actions are aimed at deliberately delaying the pre-trial investigation process and could potentially qualify under Art. 376 of the Criminal Code of Ukraine (interference with the activity of judicial bodies).
Such court decisions set a dangerous precedent for interfering in the activities of anti-corruption infrastructure bodies, encroach on the independence of these bodies and create a situation in which courts of general jurisdiction can illegally influence the jurisdiction of NABU cases, which is clearly defined by the current Criminal Procedural Code.
The analysis has been prepared by TI Ukraine’s legal advisor Serhii Kurinnyi.