On 29 August, the President of Ukraine submitted a draft law on amendments to the Law of Ukraine “On the High Anti-Corruption Court.”
UPDATE (18 September 2019). On 17 September, at the meeting of the parliamentary Anti-Corruption Committee, technical amendments were made to the draft law. Namely:
1) proceedings with several accused individuals (not only special subjects) or with several violations with at least one of them under the jurisdiction of the HACC will be fully reviewed by the HACC (without division into separate proceedings);
2) even if the charges change during the review in the HACC or if the court goes beyond the indictment (which is allowed in very few cases as specified by the CPC), the HACC will still be tasked with this case;
3) the moment when cases are transferred for review to the HACC starts is tied not to the day when the court came into operation, but to the moment when the law comes into effect. This makes a lot of sense, because otherwise the law would affect connections that occurred before its adoption.
What does it include and why amend it?
Since 5 September 2019, the High Anti-Corruption Court (HACC) is supposed to receive all the indictments and motions concerning cases under its jurisdiction. Under the current legislation, the 38 judges are supposed to receive, among other things, thousands of “old” corruption-related cases. They have been accumulating for years, on all the 23 articles of the Criminal Code of Ukraine that are under the HACC jurisdiction.
According to the State Judicial Administration, over 3,500 of such corruption-related cases (about 3,500 in first-instance courts and about 190 in appellate courts) can potentially be reviewed in HACC due to legislative criteria of the violation, the special perpetrator of the crime*, the amount of damage inflicted.
For many of them, the limitation period has expired or will expire in the near future, which will automatically mean that corrupt officials will escape justice. Moreover, excessive workload will block effective work of the court for years. Recall that fair justice within reasonable time was one of the key reasons for the establishment of the Anti-Corruption Court.
That is why it is essential to regulate the transfer to old cases to the new judicial agency.
Since 5 September 2019, the High Anti-Corruption Court (HACC) is supposed to receive all the indictments and motions concerning cases under its jurisdiction. Under the current legislation, the 38 judges are supposed to receive, among other things, thousands of “old” corruption-related cases.
The draft law submitted by the President introduces changes to Final and Transitional Provisions of the Law of Ukraine “On the High Anti-Corruption Court,” which resolve the key challenges ahead of the HACC establishment:
- all 23 articles remain under the jurisdiction of the HACC, but the court will review only those criminal proceedings that are registered in the Unified State Register of Pre-Trial Investigations starting from 5 September 2019;
- criminal proceedings registered before the HACC comes into operation will be examined by the HACC only if the pre-trial investigation was performed by the NABU / the SAPO;
- all motions and complaints will go to HACC investigative judges since 5 September 2019; the old ones are also sent to them if they have not yet been reviewed;
- the cases in which the judicial examination is not complete as of 5 September 2019 will be transferred to the HACC only if the pre-trial investigation was performed by the NABU / the SAPO. This applies to first-jurisdiction and appellate court examination.
If the draft law is passed, the Anti-Corruption Court will be able to focus on new high-profile corruption cases and thus show its true effectiveness. The Parliament is supposed to vote for the draft law by 5 September, so now, elimination of one of the biggest challenges with the launch of the new judicial institution rests in the hands of Ukrainian MPs.
This material was made possible by the support of the American people through the United States Agency for International Development (USAID). The content of this material is the exclusive responsibility of the Grantee and does not necessarily reflect the views of USAID or the United States Government.
*special subject of the crime – under Ukrainian Criminal Code, a perpetrator who must possess certain characteristics in order to be identified as a perpetrator of a certain crime, such as the position, the profession, the citizenship, etc.