If you follow the activities of TI Ukraine, you know that we monitor the work of the High Anti-Corruption Court. We share the results of our work with you. The topic that will be raised today is debatable and relevant in the judicial environment.
Today, a panel of judges headed by Danyila Chornenka refused the motion of the defense of one of the persons involved in the Dybnevychi case to refer the case from the HACC to the District Court of the Lviv oblast. The panel justified its decision by saying that this issue has already been considered by the court, and the court has previously already decided to leave the case with the HACC.
It is worth noting that this is not the first decision that, under such circumstances and the composition of the court, is made by the Appeals Chamber, in all these cases the panel was headed by Judge Chornenka.
The question of jurisdiction
Yesterday, the Register of Court Decisions published a noteworthy ruling regarding the person involved in TzOV Enerhiia-Novoyavorivsk RDE; a criminal proceeding, in which, according to the media, the defendants are associated with the Dubnevychi brothers. The ruling states that the defense of one of the persons involved appealed to the Appeals Chamber of the Anti-Corruption Court with a request to refer the case to the Mykolayiv District Court of the Lviv oblast. Motivation: the person involved is allegedly beyond the jurisdiction of the HACC. Based on the results of the review, the court rejected this appeal.
A similar motion was considered and granted in the case of Medvedchuk’s pipe. Formally, the motivation of the defense lawyer’s motion in the case of TzOV Enerhiia-Novoyavorivsk RDE is identical to the motivation of the motion in the Medvedchuk’s case. In both cases, the defenders appealed to the fact that the person involved did not belong to the subjects who were under the jurisdiction of the HACC. As indicated in the operative part of the decision, the motion was not granted, and the proceedings were closed. However, in this case, the court agreed with the arguments of the defense.
The ruling on the case was accompanied by two separate opinions of the judges Chornenka and Hlotov. And if judge Hlotov agreed to leave the case with the HACC, judge Chornenka, on the contrary, supported the referral of the case to the district court. She referred to the previous ruling of the HACC, which allegedly established that the specified criminal proceeding is beyond the jurisdiction of the Anti-Corruption Court, and the prosecutors did not oppose it.
This is very strange because the very ruling the judge referred to states completely the opposite: “The court of appeal does not agree with the arguments outlined in the motions of the defenders regarding the lack of jurisdiction of the proceeding to the High Anti-Corruption Court and the need to refer it to another court of jurisdiction to consider the indictment. The court deems the High Anti-Corruption Court to be a proper court, in accordance with the requirements of the criminal procedural law, and therefore the criminal proceeding [list of articles of the Criminal Procedural Code] should be considered by the High Anti-Corruption Court.”
Judge’s mistake? Perhaps, but on Tuesday, under similar circumstances, the HACC Appeals Chamber did refer the case regarding the person involved in the Medvedchuk pipe case to another court. In this case, judge Chornenka was the chair of the panel and supported the referral. Judge Hlotov, whose arguments we agree with, objected to such a referral. Judge Pavlyshyn was of the same opinion as judge Hlotov. However, the majority of the panel supported the referral of the case to another court.
Why is it important, and what are the possible consequences?
Such a motion is always preceded by the prosecutor’s decision to separate the case. The tool exists in order to ensure an effective pre-trial investigation, separating materials on a specific person involved in order to focus the investigation’s attention on them. This is the right of the prosecutor, as well as the right of the defense lawyer, to file a corresponding motion. It is worth noting that the prosecutor’s decision on separation is not contested.
The question arises — is it rational to refer such “pieces” of high-profile cases from the HACC to other courts? In our opinion, it is irrational because it can be harmful for an effective trial.
As judge Hlotov very aptly stressed in one of his opinions, the separation of the jurisdiction of criminal proceedings, which are identical in their criminal-legal nature, the nature of legal relations, and other characteristic features, will lead to a significant imbalance in the results of the trial.
In addition, there are risks that it is easier to influence the local court, to which the case of the person involved in Medvedchuk’s pipe case will be referred. If such a court makes a biased decision, then the conclusions from such a decision can be used by the defense in the main proceedings and undermine the main case.
That’s right: a part of the main proceeding that barely anyone can notice can disrupt the case in general.
Ukraine has consistently and systematically fought for the creation of the High Anti-Corruption Court. It was (and, unfortunately, still is) impossible to wait for the reform of the entire judicial system, expecting that “all courts will become anti-corruption ones.” Fortunately, we have already seen the results of the HACC’s work, including the sentences regarding senior corrupt officials that the society has been longing for.
Against this background of the first promising victories, there have been attempts to refer cases from the High Anti-Corruption Court to other, let’s say “unreformed,” courts. Unfortunately, sometimes this referral of cases is successful. It should also be noted that these attempts to avoid consideration in the HACC so far relate to one industry – energy.
That is why today’s decision of the Appeals Chamber is a significant victory. This is not only a solution to the procedural issue; it is another brick that judges have laid in the foundation of the institutional stability and independence of the HACC.
Authors: Serhii Kurinnyi, legal advisor to TI Ukraine; Karina Lytvyniuk, junior legal advisor, monitored the meeting.