by Vadym Valko, originally published by Zn.ua

Three years of victories, failures and future challenges of the High Anti-Corruption Court.

On February 24, when the russian dictator was justifying the invasion of Ukraine, he mentioned the High Anti-Corruption Court. The latter was allegedly “controlled by the American Embassy”. So, they will write in history textbooks how Putin was triggered by the topic of corruption, while real mechanisms to combat it were working in Ukraine. And this is another key difference between us and them.

So, during three years of its existence, the HACC made 81 decisions in cases, where the NABU detectives had completed the investigation. And this is 2.5 times more than that all Ukrainian courts together made during the first four years of the NABU’s work.  

The Supreme Court upheld at least 7 prison sentences of the HACC, but in the meantime cancelled with the help of very questionable decisions two sentences regarding judges that the HACC had sent to prison. It is obvious that this is only the beginning of a long way of the real cleansing of the state system from corruption. The HACC already has its achievements and failures, as well as challenges that await it in future. Let’s talk about that.

Achievements

Dozens of decisions with actual imprisonment for corruption

The HACC began to systematically punish corrupt officials. Several dozen officials have already received guilty verdicts. There are prosecutors, officials of the SBU, judges, heads of state enterprises and officials of various levels among the convicts. Here are some illustrative examples.

Conviction of corrupt judges

Before the establishment of the HACC, there were zero decisions in the NABU cases against bribe-taking judges. During three years of work, the HACC has already made almost two dozen decisions. And if before judges, who were caught red-handed, usually avoided punishment, today they began to receive actual prison sentences. Here are some examples:

• 9 years of imprisonment with confiscation of property for the judge of the Economic Court of Odesa region Pavlo Medentsev from Odesa (in absentia). The court also confiscated 250,000 UAH found during the search. Medentsev was found guilty of extorting and receiving 570,000 UAH from entrepreneur for positive court decision;
• 7 and 7.5 years of imprisonment with confiscation of property for former judges of Holosiyivskyi Court of Kyiv Andriy Novak and Oleksandr Bilyk. They were found guilty of receiving 8,000 USD for the court decision in case of reinstatement and payment of 1.5 million UAH in compensation;
• 5 years of imprisonment for the judge of Malynovskyi Court of Odesa Anatoliy Tselukh, who received 2,500 USD for the “necessary” decision in civil case.

Termination of practice of ridiculous bails in top corruption cases

A few years ago, a significant part of the news about top corruption cases was published with the headings “Court released on bail” or “Court set ridiculous bail”. With the establishment of the High Anti-Corruption Court, such cases have almost disappeared. Moreover, more than 70 million UAH have already been charged to the state budget from suspects for violation of procedural obligations. And, although the law provides for mandatory determination of the amount of bail as alternative to detention, the amounts of bails assigned by the HACC began to prevent risks present in the CPC and be commensurate with real financial capabilities of participants. In particular, judges of the HACC appointed:

• arrest with alternative bail in the amount of 120 million UAH for former officer of the SFS Olena Mazurova;
• arrest with alternative bail in the amount of 100 million UAH for former Member of Parliament Maksym Mykytas;
• arrest with alternative bail in the amount of 90 million UAH for Member of Parliament Yaroslav Dubnevych;
• arrest with alternative bail in the amount of 84 million UAH for one of heads of the Tax Office of Kyiv Mykola Ilyashenko;
• arrest with alternative bail in the amount of 70 million UAH for the “king of smuggling” Vadym Alperin;
• arrest with alternative bail in the amount of 52 million UAH for former deputy chairman of the board of Privatbank Volodymyr Yatsenko and 50 million UAH for deputy chairman of the board Lyudmyla Shmalchenko.

Fair consideration, regardless of positions, political affiliation and influence

During past three years, the HACC has repeatedly dealt with consideration of cases regarding representatives of authorities or influential figures. Here we can mention Members of Parliament from “servants”, namely Oleksandr Yurchenko and Serhiy Kuzminykh, Member of Parliament of Kyiv City Council Vladyslav Trubitsyn, who is associated with Oleg Tatarov from the Office of the President, Member of Parliament Yaroslav Dubnevych, former Privatbank executives Oleksandr Dubilet and Volodymyr Yatsenko, or Pavlo Vovk and his minions from KDAC, etc. And work of the HACC in such cases was many times better than what we had seen before. We should recall, at least, the circus performance with checkered blanket when Solomyanskyi Court was choosing the preventive measure regarding former head of the State Fiscal Service Roman Nasirov. It would be impossible to even assume something similar in most meetings at the HACC.

Implementation of civil forfeiture

One of tasks of the court, which is directly provided by the law, is “resolving the issue of establishing of unjustified assets and their recovery into state income”. We are talking about civil confiscation, which consists in simplified, compared to the criminal process, procedure for recovery of illicit assets of officials. It allows confiscation of unjustified assets of dishonest officials for the benefit of state rather quickly and with lower standard of proof.

The pioneer was former Member of Parliament Ilya Kiva, who paid 1.25 million UAH. In addition to Kiva, the HACC also collected 3.6 million UAH from the head of Vasylkiv Court Maksym Kovel and more than 3 million UAH from former head of the National Police Department Andriy Anosov.

Active work during the martial law

The High Anti-Corruption Court did not stop its work even after the full-scale invasion. Thanks to the initiative of individual suspects and accused persons, the court transferred tens of millions UAH from previously paid bails to needs of the Armed Forces during the first months, and judges transferred millions of seized funds to the military at the request of prosecutors of the SAPO.

Only thanks to these four cases, the anti-corruption bodies brought more than 11 million USD to the Armed Forces. With the help of them, for instance, you can buy two Bayraktars, half a thousand new vans or 3.5 thousand quadcopters.

Confiscation of assets of sanctioned persons

Another challenge happened at the court quite recently. Namely, when it considered for the first time the case of confiscation of assets from Russian oligarch Volodymyr Yevtushenkov. And we should tell that the HACC passed it quite successfully and confiscated from the oligarch 17 real estate objects with the total area of ​​almost 100 thousand “squares”, as well as shares in several Ukrainian companies. By the way, it was not by chance that the court was given the authority to consider appeals regarding the recovery of assets from persons subject to sanctions. After all, the HACC is the only court in Ukraine formed with the participation of international experts with the reputation recognized in the world, which implies the highest level of trust to selected judges.

Failures

Doubtful decisions

The share of acquittals of the HACC is more than 10%, while in similar category of cases in all courts of Ukraine this indicator was at the level of 7.67% until recently. That means that the chance of getting acquittal in the HACC is even higher than in general courts. At first glance, this is achievement of the court, which indicates that the trial at the HACC is truly fair. But there is one “but”. Some of these decisions were made with very doubtful arguments and are frankly surprising:

• the acquittal regarding judge of the Economic District Court of Kharkiv region Tetyana Denysyuk, who in 2016 transferred gas and gas condensate arrested in criminal proceeding to the company associated with former Member of Parliament Onyschenko. There are many questions regarding her acquittal. In particular, some of the judges’ arguments are contradictory, and the presiding judge openly played along with the defense at the end of the case consideration;
• the decision of the Appeals Chamber of the HACC to leave unchanged the acquittal regarding Firtash’s director of Zaporizhzhya Titanium and Magnesium Combine Volodymyr Syvak, although the verdict was made with flagrant violations. In the end, the Supreme Court found the Appeal’s decision illegal and sent the case for new consideration;
• cancellation of the prison sentence regarding the judge from Zakarpattya Mykhaylo Pak, who was sent to prison for 7 years by the first instance. In particular, two judges of the Appeal applied the provision of law that was not applicable in this case.

Mistakes of investigative judges

Important task of the HACC is to exercise the judicial control over pre-trial investigations in top cases. And investigative judges of the HACC, unfortunately, repeatedly demonstrated the worst standards of old “justice”, made erroneous and sometimes shocking decisions. In particular, investigative judges:

• refused to collect bail in the amount of 70 million UAH from the “smuggling king” Vadym Alperin and unjustifiably classified the rationale for such decision. As a result, the mistake was corrected by the Appeals Chamber. It charged half of the bail, namely 35 million UAH. That could be the price for the mistake of investigating judge;
• applied meager bail in the amount of 5.5 million UAH for suspected former Member of Parliament Maksym Mykytas. Although, the Appeals Chamber later corrected this mistake and took him into custody and also increased the bail to 80 million UAH. Later, Mykytas was charged 30 million UAH for breach of duty;

(infographics)

• they refused to conduct absentee investigation regarding former assistant to Member of Parliament Georgiy Logvynskyi due to the alleged “groundlessness of suspicion”. Moreover, at that time another investigative judge of the HACC already recognized the suspicion as well-founded and applied the arrest in absentia to the same suspect;
• did not want to reopen the case regarding the “Rotterdam+” formula with losses in the amount of almost 40 billion UAH, although arguments of the investigating judge were very doubtful. Today, the legal point in this case should be put by the Appeals Chamber of the HACC;
• from the first time they were afraid to use compulsory process against suspected head of KDAC Pavlo Vovk, who had ignored court summonses. And all because the video of detectives allegedly did not show that Vovk was throwing summons out of the car. Although, detectives repeatedly repeated on camera what kind of document it was and its content.

Delaying of individual cases

Although most of the time, the HACC manages to ensure fast consideration of cases, but this does not happen always. In particular, the Anti-Corruption Court still has several proceedings that have been transferred to the court long time ago, where the mandatory first stage, namely preparatory meeting, has not been held yet. For instance, since November 2019, the preparatory meeting in the “amber case” has been ongoing regarding former Members of Parliament Maksym Polyakov and Boryslav Rozenblat. And since March 2021, they cannot conduct preparatory proceedings regarding the Mayor of Odesa Gennadiy Trukhanov, and his accomplices, who are accused of illegally seizing of 92,6 million UAH from the local budget.

(infographics)

Moreover, due to the delay in considering the case, we already have first negative consequences. In particular, former official of the PGO Apollinariy Nagalevskyi escaped punishment. He was found guilty of accepting the bribe in the amount of 5,000 USD, but was released from punishment due to the expiration of statute of limitations.

Creating of threatening practice

Separate decisions of the HACC created threatening practice for all future cases. Namely:

• in its second case regarding civil confiscation, the court refused to seize apartment from Member of Parliament Mykhaylo Volynets. The essence of the HACC’s motives was that officials do not need to explain the origin of assets if they were purchased with funds that had been allegedly received before taking office. At the same time, it is not necessary to confirm existence or legality of such income either. As a result, officials can use “lottery winnings”, “significant savings from the past” or “rich relatives” to legalize unjustified wealth. Such reasoning can put an end to the very idea of ​​civil confiscation of illegal assets from officials;
• Another example of doubtful practice is closing of old cases on the basis of clause 10, part 1, article 284 of the Criminal Procedure Code of Ukraine, according to which the criminal proceeding is subject to closure, if the period of pre-trial investigation has expired after notification of the suspect. However, this clause directly states that it is not retroactive and applies only to new cases entered in the Unified Register of Pretrial Investigations as of March 15, 2018. Meanwhile, the HACC has already ignored such warning several times and closed cases on this basis that were opened even before the regarding changes were made.

Key challenges

Selection of new chairman of the court. In May of this year, the term of office of the head of the HACC, the judge Olena Tanasevych, ended. She played a very important role at the initial stage of formation of the court, but there were also negative moments. In particular, she visited the party of former member of the Party of Regions Serhiy Kivalov, where was also Pavlo Vovk, the suspect in the NABU case, whose case is being considered by the HACC. The position of chairman of the court, in addition to authority and influence, confers the number of important legislative powers. Namely, chairman of the court represents the institution in relations with other state bodies, issues orders, monitors efficiency of the apparatus, submits proposal for the application of incentives or disciplinary measures to the head of apparatus and his deputy etc. Therefore, choosing new head of the court with impeccable reputation should become one of the main tasks for judges.

Consideration of cases against judicial mafia and oligarchs. There are many high-profile criminal proceedings pending consideration at the High Anti-Corruption Court. But even among them there are those whose place is special. In particular, the indictment in case of “KDAC’s tape-recordings” against 10 people, including the head of court Pavlo Vovk was sent to the HACC in June. Today, three judges have recused themselves in this case, and it seems that judges themselves are not eager to take responsibility for these proceedings.

Moreover, the court has jurisdiction over multibillion-dollar cases regarding Privatbank, Rotterdam+ and Ukrnafta, which are connected to influential Ukrainian oligarchs. The consideration of these cases will be a big challenge for the HACC.

First decisions regarding top–cases. Despite presence of almost seven dozen convictions, most of names of these accused do not mean anything to the average person. But there are still no decisions in real top-cases of the NABU, namely cases involving Martynenko, Nasirov, Onyshchenko, Chaus, Trukhanov, Zlochevskyi, Rozenblat, Polyakov, etc. This is indeed one of the main challenges, because justice is expected from the HACC in such proceedings first of all.

Practice of the Supreme Court. All decisions of the HACC can be appealed at the Supreme Court as the court of cassation. In contrast to the competition to the HACC, judges of the Supreme Court were selected by the unreformed High Qualification Commission of Judges of Ukraine. The majority of this body consisted of scoundrels from the judicial clans. And they passed many dishonest and doubtful candidates. Therefore, it is not surprising that the Supreme Court has already started rescuing judges convicted of bribery by the Anti-Corruption Court from prison. This challenge can be overcome through the creation of separate Anti-Corruption Chamber within the Supreme Court, which would review decisions of the HACC in the cassation procedure. And its judges should be selected with the participation of independent international experts, by analogy with the selection of anti-corruption judges.

…During three years of work, the Anti-Corruption Court has gained many victories and achievements. Although, there were doubtful decisions and outright failures. Judges of the HACC still have a lot to work do, and some judges are not probably in their place.