On July 22, 49 MPs of Ukraine filed a petition with the Constitutional Court of Ukraine on the inconsistency of the Law of Ukraine “On the High Anti-Corruption Court” with the Constitution of Ukraine.

The main conclusions made by TI Ukraine’s lawyers:

While the High Anti-Corruption Court has its peculiarities, it has a single constitutional function, namely administration of justice in a clearly defined category of cases. The court is built into the judicial system of Ukraine and has a higher instance, namely the Criminal Court of Cassation within the Supreme Court, over which, in turn, there is the Grand Chamber of the Supreme Court.

The HACC is not a special court, because it does not have powers, functions and tasks that are different from other Ukrainian courts. Its creation is consistent with the Constitution of Ukraine and with the Law of Ukraine “On Judiciary and the Status of Judges.” 

By its nature, the HACC is a specialized judicial establishment created to hear a specific type of cases, which increases the effectiveness of justice in such cases.

Special requirements to judges are stipulated by the nature of cases considered by the HACC, which requires engagement of highly qualified judges. However, in accordance with the Constitution of Ukraine, Article 127, part 3, judges of specialized courts can be required to meet other requirements in education and experience than other judges.

The status of a special and extraordinary court would stipulate the absence of institutions that would control such a court, the absence of a mechanism for reconsideration of its decisions and the lack of accountability to the highest judicial body, the Supreme Court.

It is worth mentioning the role of the Public Council of International Experts, which performs a purely informational and advisory function, while the HCJ retains the full range of rights and powers provided by current legislation.

If the Constitutional Court of Ukraine rules on the unconstitutionality of the Law of Ukraine “On the High Anti-Corruption Court,” the latter shall cease to be valid from the date of the Constitutional Court’s decision on its unconstitutionality, unless otherwise established by the decision itself, but not earlier than the day when such a decision is made.

This will lead to a legal catastrophe in which all cases considered by the HACC will return to district courts. This will undermine the confidence of international partners and business in the country, destroy the remnants of public confidence in the anti-corruption infrastructure and cause a significant delay in judicial hearings.

Let’s look at some history first.

On June 7, 2018, the Verkhovna Rada adopted the Law of Ukraine “On the High Anti-Corruption Court”. The history of its passage was accompanied by committee battles, diversions and constant attempts to disrupt the process.

The formation of an independent court that would administer justice in cases under the jurisdiction of NABU-SAPO was both a requirement of the time and one of the requirements of Ukraine’s European integration.

Indeed, prior to the establishment of the High Anti-Corruption Court, grand corruption cases were heard by courts of general jurisdiction. Consideration of such cases requires a certain specialization and a high level of independence from the judiciary, which is not always available within the specialization of district courts. It was envisaged that the HACC would centralize case law, relieve local courts and ensure prompt and efficient hearings.

So, what was the reasoning behind MPs’ petition?

The first alleged reason is that the High Anti-Corruption Court is a special court under Article 125 of the Constitution of Ukraine. This is substantiated by the fact of the HACC’s exclusive jurisdiction established by Art. 33-1 of the Criminal Procedural Code of Ukraine.

It should be noted that such claims are untrue. Under Article 125 of the Constitution, extraordinary and special courts cannot be established.

Let’s understand what a “special court” is in the sense of the Constitution of Ukraine.

“Special” is defined as “particular” or “of a particular nature”.

Clause 2.1. of the Opinion of the Constitutional Court of Ukraine of July 11, 2001, in case No. 1-35/2001 at the constitutional petition of the President of Ukraine on the consistency of the Constitution of Ukraine with the Rome Statute of the ICC that the MPs refer to establishes that extraordinary and special courts, as per this article, are court created to replace regular courts which do not comply with procedures established by the law.

That is, the Constitutional Court emphasizes that the status of a special and extraordinary court would stipulate the absence of institutions that would control such a court, the absence of a mechanism for reconsideration of its decisions and the lack of accountability to the highest judicial body, the Supreme Court.

The main function of courts in Ukraine is administering justice, under Article 124 of the Constitution of Ukraine.

Under Article 3, clause 1 of the Law of Ukraine “On the High Anti-Corruption Court,” the task of the High Anti-Corruption Court is administering justice according to the judicial principles and procedures established by the law in order to protect the individual, society and the state from corruption and corruption-related criminal violations and judicial oversight over pre-trial investigations of these criminal violations; maintaining the rights, freedoms and interests of individuals in a criminal proceeding and deciding on the issue of assets being unexplained and their recovery to the national budget in cases provided by the law under civil law procedures.

That is, the Law explicitly stipulates that the main function and task of the court is the administration of justice. Accordingly, the court has no additional functions and tasks that would distinguish it from the judicial system of Ukraine.

It is also worth noting that Art. 125 of the Constitution of Ukraine stipulates the existence of high specialized courts. This provision is implemented in Art. 17 of the Law of Ukraine “On the Judiciary and the Status of Judges”, which stipulates that there are high specialized courts in the judicial system for the consideration of certain categories of cases in accordance with this Law.

Finalizing this position, the Constitutional Court of Ukraine, in its decision on case No.1-12/2011 of July 12, 2011, confirms that Article 125 of the Constitution of Ukraine (254k/96-VR) establishes a system of courts of general jurisdiction in Ukraine and names all its elements: The Supreme Court of Ukraine, high specialized courts, appellate and local courts, and clause 8 of part three of Article 129 (254k / 96-VR) defines the basic principles of justice, including ensuring appellate and cassation appeals against court decisions, except as provided by law.

In this decision, the Constitutional Court of Ukraine emphasizes that the principle of territoriality provides for the territorial delimitation of the jurisdiction of courts of general jurisdiction and is conditioned by the need for access to justice throughout Ukraine.

The principle of specialization is to create appropriate specialized courts for civil, criminal, administrative, commercial proceedings.

In view of the above, the Constitutional Court of Ukraine emphasizes that the principle of instance should be understood as such an organization of the judicial system that provides the right to review the decision of the court of lower instance by a higher court.

Thus, the High Anti-Corruption Court is a high specialized court under the current legislation, which is built into the system of courts of Ukraine, subordinate to the Supreme Court. In view of this, the HACC does not have the powers or position in the court system to allow it to administer justice in circumvention of the constitutional system of courts.

On the implementation of specialization and territoriality principles

The authors of the constitutional petition refer to the fact that “the High Anti-Corruption Court was established to consider a limited number of criminal proceedings, an abstractly defined range of criminal offenses. At the same time, the High Anti-Corruption Court is charged with criminal proceedings not only against corruption crimes, but also against crimes in the sphere of economic activity (Articles 206-2, 209, 211 of the Criminal Code of Ukraine) and in the sphere of public administration (Article 366-1 of the Criminal Code of Ukraine), which illutrates that the establishment of the above court has been carried out for trial of criminal proceedings concerning discernible types of criminal violations randomly picked out from the general range of criminal violations.”

This statement is manipulative and untrue. Article 33-1 of the Criminal Procedural Code establishes an exhaustive list of the HACC’s jurisdiction.

In rem jurisdiction is a logical implementation of the principle of court specialization confirmed by the Decision of the Constitutional Court of Ukraine in the case No. 1-40/2010 of September 9, 2010, which establishes that the main criteria of judicial specialization are the subject of the disputed legal relations and the inherent procedure for their consideration. The Procedural Codes of Ukraine have established different procedures for different legal relations.

That is, the legislation provides that within the framework of criminal specialization it is possible to allocate a separate subject-matter jurisdiction. This mechanism is designed to pick out those cases that in their substantive or subjective composition differ significantly in complexity and / or importance of public legal relations from other cases within the jurisdiction.

Regarding the individuals under the HACC jurisdiction

The authors of the petition refer to the fact that the exhaustive list of individuals subject to the HACC provided by the legislator is a proof of the special status of the court.

This statement is manipulative given that there is a stable system of courts of administrative jurisdiction in the court system of Ukraine.

In this case, the legislator assumes that the courts of administrative jurisdiction hear cases on claims, in particular, on a subjective criterion, namely – disputes with subjects of public authority. This system has one goal — to isolate the category of disputes with a specific subject for the most efficient trial of cases.

In case of the HACC, the legislation is based on the fact that a high specialized court should not be overwhelmed with cases where crime subjects are not high-ranking officials.

 

Regarding the special procedure for selection of judges

The authors of the constitutional petition refer to the fact that the special procedure for selection and requirements to HACC judges further prove that this court has a special status.

In this case, we can work off the fact that special requirements to judges are stipulated by the nature of cases considered by the HACC, which requires engagement of highly qualified judges. However, in accordance with the Constitution of Ukraine, Article 127, part 3, judges of specialized courts can be required to meet other requirements in education and experience than other judges.

That is, the legislation directly stipulates that judges in high specialized courts created to administer justice in specific, more complex cases may have to meet additional requirements.

Interpretation of the constitutional wording “professional experience” should be based not only on the quantitative criterion (years of work), but also on the qualitative criterion. It is implied that, based on the content of Art. 127 of the Constitution of Ukraine, the legislator clearly established a quantitative criterion of length of service in years and emphasized the qualitative criterion of length of service — experience in specific legal sectors.

It should also be noted that under Article 52, part 2 of the Law of Ukraine “On Judiciary and the Status of Judges, judges in Ukraine have the same status regardless of their position in the judicial system or their administrative position in a court.

The unity of status is ensured by the fact that all judges of Ukraine may not have more or less authority to administer justice than is established by the Constitution of Ukraine and legislation.

Regarding the legal status of the High Council of Justice and the Public Council of International Experts

The applicants point out that the purpose of the High Council of Justice is to form a highly professional judiciary capable of administering justice in a high-quality manner. At the same time, it should be active in its performance, since this agency is obliged, under the Constitution, not only to ensure selection of candidates for the position of judges, but also to take action to ensure judges’ independence, make decisions on judges’ dismissal, etc.

The applicants emphasize that the role of the HCJ is “formal” in the process of HACC formation. However, under Article 8, part 8 of the Law of Ukraine “On the High Anti-Corruption Court,” when the High Council of Justice considers submitting a motion to the President of Ukraine on appointment of a High Anti-Corruption Court judge and making a decision on appointment of a High Anti-Corruption Court judge, the relevant meetings of the High Council of Justice are recorded on video and audio and broadcast live on its official website, which is ensured by the HCJ Secretariat.

Thus, the legislation clearly emphasizes the role of the HCJ in the formation of the judiciary, additionally focusing on the role of this agency in selection of HACC judges, namely — consideration of submitting a motion to the President on appointment of a judge. Thus, analyzing this provision of the Law of Ukraine “On the High Anti-Corruption Court,” it is impossible to conclude that the role of the HCJ in this process is “formal.”

Article 1 of the Law of Ukraine “On the High Council of Justice” stipulates that the High Council of Justice is a collegiate, independent constitutional body of state authority and judicial governance which permanently operates in Ukraine for ensuring independence of the judicial branch of power, its functioning based on the principles of responsibility, accountability to society, formation of scrupulous and highly professional judicial corps, compliance with the standards of the Constitution and laws of Ukraine, as well as professional ethics in the activity of judges and prosecutors.

Article 9, parts 1 and 2 of the Law of Ukraine “On the High Anti-Corruption Court” stipulates that the Public Council of International Experts is formed for a term of six years by the High Qualification Commission of Judges of Ukraine to facilitate its decision-making on issues of appointment of High Anti-Corruption Court judges and serves as its auxiliary agency.

Part 9 of the aforementioned article stipulates that the Public Council of International Experts:

1) collects, checks and analyzes information on candidates for judges of the High Anti-Corruption Court;

2) provides the High Qualification Commission of Judges with information on candidates for judges of the High Anti-Corruption Court;

3) participates in a special joint meeting in the cases provided by this Law;

4) takes measures to protect personal data, and information with restricted access, which became known to the Public Council of International Experts, its members in connection with the exercise of their powers.

The analysis of the above makes it possible to conclude that the position of the applicants is manipulative and does not reflect current legislation of Ukraine.

The High Council of Justice (hereinafter — HCJ) is not by its legal nature a body designed to form a highly professional judiciary. Under Article 93, part 1, clauses 2, 3 of the Law of Ukraine “On Judiciary and the Status of Judges” the High Qualification Commission of Judges (hereinafter HQCJ) is authorized to select candidates to be appointed for positions of judges, including organizing special verification of the candidates according to the law and conducting a qualification test. It is also authorized to file a recommendation with the High Council of Justice on appointment of a candidate for a position of a judge.

Thus, the agency authorized to form a highly professional judicial corps is the HQCJ, not the HCJ.

It should be noted that, under the Law of Ukraine “On the High Anti-Corruption Court,” the Public Council of International Experts performs a consultative and advisory role in decision-making on issues of appointment of High Anti-Corruption Court judges and serves as the auxiliary agency of the HQCJ.

Thus, under the law, the PCIE does not make decisions on appointment of judges by itself. This function is assigned on the HCJ as stipulated by the Constitution of Ukraine.

It should be noted that if the Constitutional Court of Ukraine rules on the unconstitutionality of the Law of Ukraine “On the High Anti-Corruption Court,” the latter shall cease to be valid from the date of the Constitutional Court’s decision on its unconstitutionality, unless otherwise established by the decision itself, but not earlier than the day when such a decision is made.

This will lead to a legal catastrophe in which all cases considered by the HACC will return to district courts. This will undermine the confidence of international partners and business in the country, destroy the remnants of public confidence in the anti-corruption infrastructure and cause a significant delay in judicial hearings.

We should remember that the status of a suspect and an accused negatively impacts a person’s business standing, the usual way of life, etc. One of the principles of the Criminal Procedural Code is compliance with the principle of reasonable time frames, to ensure that an individual does not suffer excessive restrictions of their rights, freedoms and interests, which are an integral consequence of the status of a suspect or an accused.

Thus, while the High Anti-Corruption Court has its peculiarities, manifesting itself in a special procedure for selection of judges, it has a single constitutional function, namely administration of justice. The court is built into the judicial system of Ukraine and has a higher instance, namely the Criminal Court of Cassation within the Supreme Court, over which, in turn, there is the Grand Chamber of the Supreme Court.

Considering the above, the HACC is not a special court, because it does not have powers, functions and tasks that are different from other Ukrainian courts. Its creation is consistent with the Constitution of Ukraine and with the Law of Ukraine “On Judiciary and the Status of Judges.” It is also not an extraordinary court, because it is hierarchically built into the judicial system of Ukraine.

By its nature, the HACC is a specialized judicial establishment created to hear a specific type of cases, which increases the effectiveness of justice in such cases.

The analysis has been prepared by TI Ukraine’s legal advisor Serhii Kurinnyi. 

 

The analysis has been prepared with the support of the International Narcotics and Law Enforcement Affairs department of the US Embassy in Ukraine. The views expressed herein are the sole responsibility of Transparency International Ukraine and do not necessarily reflect the official stance of the US Embassy.