Following more than two years of advocacy efforts by Ukrainian civil society and pressure from the international community, Ukraine established a specialized High Anti-Corruption Court (HACC) to try high-level officials accused of serious corruption offenses. The HACC, which was authorized in June 2018 and began operating this past September, is rightly seen as a major victory for Ukrainian anticorruption activists, and the first round of judicial selection for this court (a process that entailed special procedures, including the participation of a foreign expert panel in assessing candidates’ integrity) appears to have gone well. But the HACC faces daunting challenges—it is a brand-new institution, operating in an uncertain but pervasively corrupt environment, tasked with addressing extremely complicated and sensitive cases under intense public scrutiny. Its success is by no means guaranteed.
Some of the factors that will affect the HACC’s performance are external to the court itself. For example, the HACC’s success depends in part on the quality of the work done by Ukraine’s anticorruption investigative and prosecutorial bodies, the National Anti-Corruption Bureau (NABU) and Specialized Anti-Corruption Prosecutor’s Office (SAPO). And given the history in Ukraine of political interference with the courts (despite the constitution’s guarantee of judicial independence), one must always worry about whether the HACC will face similar threats. But even if we put those concerns aside, there are several additional steps that can and should be taken to help ensure that the HACC lives up to its potential.
- First, the HACC needs a guaranteed adequate annual budget, and that budget must be insulated against political manipulation. The law establishing the HACC already provides for an allocation of finances from the state budget for the HACC’s trial and the appeals chambers, but the law does not establish a clear protocol for determining the annual budget allocations. This lack of guaranteed funding could enable a government unhappy with the court’s decisions to hinder the HACC’s work by starving it of funds. Reforming the law so that the HACC is guaranteed a fixed percentage of the state budget, based on the HACC’s needs, might be one way to ensure adequate annual funding. Fixed percentages, however, might result in an inflexible system, creating difficulties in the future given annual variation in the HACC’s workload. To mitigate this, the annual budget should be reevaluated if the judges find that they need additional funding to account for an increased caseload, additional staff, or other needs in the future. Balancing the flexibility of the budget with the interest in protecting the HACC’s budget, will be key.
- Second, the HACC’s judges need adequate support in the form of capacity-building and external advice. Although the first set of HACC judges were adequately screened for integrity and professional ethics, about 40% of these judges are former lawyers or scholars with no prior judicial experience, and even those HACC judges who previously served as judges have minimal experience with corruption cases. As they operate in a new and unprecedented institution, the HACC judges will need financial, human, and expertise resources. Perhaps controversially, I believe that the HACC judges should have access to a remote team of scholars and experts both at home and abroad from whom they can seek advice on aspects of their job. Such advice would under no circumstances concern specific cases but would rather aid the judges in navigating the administrative and procedural burdens of heavy caseloads, highly complex and often controversial corruption cases, and the challenges of effective interagency cooperation, among others.
- Third, notwithstanding all the pressure on the HACC, it’s vital that the HACC’s judges focus less on the demands of society than on making sure that they strictly adhere to proper procedure, decide cases in accordance with the law, and provide thorough, detailed explanations for their decisions. The HACC was established in response to extreme displeasure with the inability of the regular courts to convict powerful defendants, and it’s understandable that the Ukrainian people and civil society activists (as well as legislators and the international community) want to see the HACC put corrupt officials behind bars. But in order for the HACC to do more than provide a quick fix, its judges must bolster the credibility of the institution by carefully following the legally prescribed procedures, and by providing thorough and well-grounded explanations of the court’s verdicts. The judges should resist any temptation to cut corners in order to deliver convictions. Such an approach would threaten the credibility of the court in the long term and could make individual convictions more vulnerable to reversal on appeal by the Criminal Cassation Court. At a time when all eyes are on the HACC, its success depends on the precedent that it sets for itself as well as Ukraine’s other courts. If the court is scrupulous about the process, the convictions will eventually follow.