How Can Ukraine’s High Anti-Corruption Court Succeed?

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.

11 thoughts on “How Can Ukraine’s High Anti-Corruption Court Succeed?

  1. Thank you Ivanna for this insightful post and providing recommendations that could benefit many similar kinds of anticorruption courts. I know this is a new institution but I had a few questions regarding the court’s procedures. How does the HACC prioritize cases? How many cases can the HACC oversee at once and how long does the court think a typical case would take to conclude? Do the judges already have a decided upon pool of cases to pursue and what does high-level mean this context, i.e. who counts as this type of official?

    • Hi Megan, I have noticed this article and your response just recently, and I would like to respond to your comment as I am familiar with the procedure.

      The HACC deals with three categories of cases:
      1) Those against high-level officials. There is an exhaustive list of them in the law, but these are the same officials against whom the National Anti-Corruption Bureau of Ukraine conducts an investigation, and the Specialized Anti-Corruption Prosecutor’s Office presents the case in the criminal trial. Some examples of such individuals are ex-President of Ukraine, Members of the Ukrainian Parliament, Prime Minister of Ukraine, Members of the Cabinet of Ministers of Ukraine, members and heads of the central government bodies, top-ranking public servants, judges, jurors (in regards to their performance of duties in court), prosecutors of the highest prosecutor’s offices, heads of the Armed Forces, Security Service, Border Guard Service, management of large state and communal entities.
      2) Those where the subject of the crime (in bribery cases, that would be the amount given) or the damage caused exceeds a certain threshold. That would also include cases against not just those officials in the first paragraph but others as well (any official of a state body, law enforcement body, local authority, and others).
      3) Those where a person has committed a bribery crime against an international organization, embassy, or consulate official.

      Given this, the court does not prioritize larger cases over smaller ones and reviews them as they come in. The cases are assigned by an automatic system to judges depending on their workload and involvement in other cases. Prioritization, in my opinion, would allow for possible abuse by the parties to the case.

      Hope that answers your question. Please let me know if you have any other questions!

      K

  2. Hi Ivanna, thank you for this clear, concise explanation and set of recommendations regarding the HACC. I’m very interested in your second recommendation. Networks of advisors make a lot of sense, but I wonder how you would ensure that the advisors themselves are a) impartial and b) do not have access to any sensitive, case-specific data. Would conversations be monitored in some way? I also fully agree with your third point, but I’m curious to know how you think this can be managed. If the HACC initially acquits a number of individuals (even if they do so properly), will this undermine their legitimacy in the eyes of the Ukrainian people? Will it be taken as evidence that the court itself is ineffective? Might there be value in starting with some “easy” convictions that can be secured without violating procedures to ensure the court is taken seriously?

    • The past history of NABU (I was in the original team that helped establish it) shows how little attention to confidentially of cases to outside ‘advisors’ so doubtful that any measures will be taken of HACC. The extraordinary role of both NGOs and international organisations in Ukraine is driven by skepticism of Ukrainian authorities and the influence from oligarchs on every institution. It is understandable that this was necessary post-2014 revolution but there is still not a proper understanding of those here in Kyiv how undue influence even if it is well-intentioned harms long-term institutional development and independence. There currently is growing skepticism that HACC will deliver.

    • Hi Maura, I would like to respond to your comment and elaborate on Donald’s position. Currently, the court has only utilized advisors before its launch to set the institution’s strategy right and establish certain guidelines on how procedures should work. The confidentiality and sensitive data seem to be well-protected on the court’s side. The only reported case of leaking case-specific data was a couple of weeks ago when some media posted the court’s decision that was rendered during an in-camera hearing.

      I have not noticed the court being involved in scandals so far, so things are going pretty good. I do understand Donald’s concern, though. There seems to be some external influence on institutions in Ukraine, and it surely harms institutional development. However, such influence was supposed to be mitigated or at least reduced in HACC’s case by the selection process that involved interviews conducted by international professionals. I also believe that HACC’s judges feel responsible for battling corruption as an impartial institution that was given so much credit and trust by Ukrainians and the international community. I hope it will last long.

      In terms of acquitting individuals, you are correct. It hurts the court’s reputation and its legitimacy quite a bit. The whole “fighting corruption” thing is perceived as that the court must only convict and never acquit because if it acquits, then it is “clear” for the public that some external influence was exerted or a bribe was given. It is difficult for the public to understand that the court will acquit individuals on the basis of lack of evidence or for other legitimate reasons. It might not even be the court’s fault (like in the case of an improper investigation), but since the court is perceived as a “last instance” institution, it is the one to take the blame.

      There are surely “easy” cases, like the false asset declaration ones. They usually involve comparing actual assets and the ones which were declared. Because they are less complex than the others, more economical ones, the court has already convicted several individuals on that basis. However, the recent invalidation of the law concerning the crime for knowingly false asset declaration by the Constitutional Court of Ukraine has led to the closure of such cases and individuals’ acquittal. You can read more about that in the piece I wrote for the blog: https://globalanticorruptionblog.com/2020/12/10/guest-post-the-ukrainian-constitutional-courts-invalidation-of-anticorruption-laws-has-plunged-the-country-into-a-double-crisis/. I also wanted to note that such cases were not particularly increasing the legitimacy of the court because the penalty for false asset declaration was usually a $ 1.7K fine as the maximum monetary penalty prescribed by the law.

      K

  3. Hi Ivanna, thank you for this very interesting post. Perhaps similar to Duffy’s question, I was wondering what either the threshold or referral process is for HACC to assert jurisdiction over a case? Is it solely dependent on the rank of the accused government official? Do the investigative and prosecutorial bodies you mentioned, NABU and SAPO, make the decision to refer a case to the HACC or does the court itself have any say in what cases it takes? Is there any sort of review mechanism for the decisions made as to whether the HACC takes a case? Are HACC decisions subject to any appellate process?

    Like Maura, I also find your second recommendation quite interesting. Lots of NGOs provide confidential legal advice to government agencies around the world. In the Ukrainian context and specifically with regard to the HACC, do you think keeping such expert advice confidential or having the court disclose what advice it receives and from who would be preferable?

    • Hi Rachael, kindly refer to my responses to Megan’s and Maura’s comments. Hope they answer your question!

      I also wanted to note that HACC decisions are subject to an appellate process in its appellate chamber that is a separate body with a separate roster of judges. They can further go to the cassation court (the Supreme Court) just like regular cases. The HACC is basically a first-instance court that has specific jurisdiction over top-profile corruption cases.

      K

  4. Thank you for this very interesting post, Ivanna. The effectiveness of an anticorruption court requires independency. Your first proposal is essential. In Brazil, courts and the prosecution service are autonomous to design their budget proposal, which is approved by the Congress. After that, they are free to undertake their respective budgets. It usually ensures the necessary financial independence. However, it is not sufficient to guarantee an independent performance of functions, especially in the anticorruption field. Considering your ideas, my main concern relates to the third one. You assert that the anticorruption courts’ decisions may be appealed to another court: the Criminal Cassation Court. I think here is the principal threat. All sentences from the anticorruption court may be reviewed by the Criminal Cassation Court? What is the standard of review? How the Criminal Cassation Court are selected? Perhaps, the Criminal Cassation Court is the door through which the traditional problems of the Ukrainian judiciary reach the anticorruption court. Concerning your second idea, I think that judges are not very willing to get external advices, especially from international experts. Maybe providing the court with a good number of clerks and assistants is more suitable.

    • Hi Rodrigo, I would like to respond to your comment. You are correct about the threat of reviewing an appeal by a different court. However, the HACC’s decisions are first appealed to its appellate chamber, a different panel of judges separated from the first instance court. The decisions may be appealed to the cassation court only in exceptional circumstances.

      Despite the threat, it is worth noting that the Criminal Cassation Court’s judges also underwent a thorough selection procedure involving international observers (although not as thorough as in the HACC’s case). Perhaps that mitigates the risks a little bit.

      Your suggestion about increasing the number of court clerks for HACC is on point! I believe this is especially important for cases with lots of volumes that one person can hardly manage.

      K

  5. Hi Ivanna, thank you for this very interesting post.

    Regarding your second proposal, I have a few practical questions: would the experts be paid or volunteers? Who would choose them and what would that selection process look like? How long would they serve? What would be the process for their removal, if required for some reason? Even if they were not advising on specific cases, they would inevitably have a certain degree of influence over the HACC, so I can see their selection process becoming a point of contention among the various factions involved with or affected by the HACC.

    Also, to build off of Maura’s point, I’m curious as to how you envision your third proposal being implemented. Beyond the abstract commitment to building the rule of law and not bowing to public will, what would this commitment look like in practice? More importantly, how could the court communicate to the public that its acquittals or rulings in favor of defendants were dictated by the law and not by their own corruption or political leanings?

    • Hi Eric, I am familiar with the matter, so I will try to address your questions.

      The HACC has only utilized advisors before its launch to set the institution’s strategy right and establish certain guidelines on how procedures should work. In my opinion, this is a good balance between international support for the institution and concerns for possible excessive influence and interference into the judicial activities of the judges.

      As to the strict adherence to the procedure, you are correct in saying that it should go beyond the “abstract commitment to building the rule of law.” The public criticizes the court for its decisions to release on bail or acquittals and does not consider the lawfulness of such decisions. I would say the best counter to that is proper media coverage. The court has its own press center that should highlight the best parts of the court activity and build trust in the institution. The court staff and judges should also undergo media training. Given that nowadays, public opinion can be crystallized based on the way information is delivered and things like Facebook activity, it is important to use social media tools and objective coverage to enhance public views on the HACC and prevent false information from spreading through oligarch-owned media outlets. In this regard, I like the example of USKOK, a Croatian anti-corruption agency. Its activities were criticized for years and lacked political support, but they simply kept going to prove their spotless reputation. This has led to several loud cases that fixed their approach and demonstrated their commitment to fighting corruption.

      Hope that answers your questions to some extent.

      K

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