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.

6 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?

  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.

  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?

  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.

  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?

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