On June 7, 2018, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On the High Anti-Corruption Court” (hereinafter referred to as Law No. 2447).

Pursuant to subparagraph “x” of subparagraph 3 of paragraph 2 of Section VI of Law No. 2447, Section XI “Transitional Provisions” of the Code of Criminal Procedure (hereinafter referred to as the CCP) was supplemented with paragraph 202, subparagraph 3 of which stipulates that:

“The adjudication of criminal proceedings concerning crimes classified by this Code as falling under the jurisdiction of the High Anti-Corruption Court, which were initiated in courts of first instance and/or appellate courts and have not been concluded by the date the High Anti-Corruption Court begins its work, shall continue in those courts. Such criminal proceedings may not be transferred to the High Anti-Corruption Court;”

However, on July 12, 2018, less than a month after Law No. 2447 took effect, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Law of Ukraine ‘On the Judicial System and the Status of Judges’” in connection with the adoption of the Law of Ukraine “On the High Anti-Corruption Court” (hereinafter—Law No. 2509), which entered into force on August 5, 2018.

Subparagraph 9 of Paragraph 2 of Section II “Final Provisions” of Law No. 2509 and subparagraph “x” of subparagraph 3 of Paragraph 2 of Section VI “Final and Transitional Provisions” of Law No. 2447, regarding the definition of cases to be referred to the High Anti-Corruption Court based on jurisdiction, is now worded entirely differently:

4) criminal proceedings concerning crimes classified by this Code as falling under the jurisdiction of the High Anti-Corruption Court, the trial proceedings in which have not been completed in the courts of first and appellate instance by the date the High Anti-Corruption Court begins its work, shall be transferred to the High Anti-Corruption Court for consideration in accordance with the procedure established by this Code;

Thus, as of the date the High Anti-Corruption Court (HACC) began its work—September 5, 2019— subparagraph “x” of subparagraph 3 of paragraph 2 of Section VI “Final and Transitional Provisions” of Law No. 2447 was set forth precisely in the version of Law No. 2509, meaning that all proceedings in which judicial review by the courts of first and appellate instance had not been completed were to be transferred to the HACC, even those that had been referred to the court before the NABU began operations—which amounted to more than 3,500 cases.

To address the issue of the High Anti-Corruption Court judges’ heavy caseload, so that they “could focus exclusively on hearing cases involving ‘high-level corruption,’” the newly elected parliament adopted Bill No. 1025 amending the Law of Ukraine “On the High Anti-Corruption Court” (regarding the commencement of the court’s operations), which was signed by the President of Ukraine on September 20, 2019.

This bill amends subparagraph “x” of subparagraph 3 of paragraph 2 of Section VI, “Final and Transitional Provisions,” of the Law of Ukraine “On the High Anti-Corruption Court” is supplemented with provisions governing the jurisdiction of the High Anti-Corruption Court over cases, namely:

“(x) Section XI ‘Transitional Provisions’ shall be supplemented with paragraph 202 as follows:

“202. The jurisdiction of the High Anti-Corruption Court, as provided for by this Code as a court of first instance, as a court of appeal, and as investigative judges, extends to criminal proceedings for which information regarding a criminal offense has been entered into the Unified Register of Pretrial Investigations:

1) as of the date the High Anti-Corruption Court begins its work;

2) prior to the date the High Anti-Corruption Court began its work, provided that the pretrial investigation is being or was conducted by the National Anti-Corruption Bureau of Ukraine and was concluded by prosecutors of the Specialized Anti-Corruption Prosecutor’s Office.”

In other words, the substance of this provision effectively excludes from consideration by the High Anti-Corruption Court corruption cases that were referred to the courts by agencies other than NABU prior to the High Anti-Corruption Court’s commencement of operations.

However, we have serious doubts that this law will actually resolve the problem identified by the legislature, as its application will create a major procedural obstacle in proceedings that were not investigated by NABU.

Thus, in accordance with Part 1 of Article 5 of the Criminal Procedure Code of Ukraine, procedural actions are conducted and procedural decisions are made in accordance with the provisions of this Code in effect at the time such an action is initiated or such a decision is made.

Furthermore, Article 58 of the Constitution of Ukraine enshrines one of the most important universally recognized principles of modern law—laws and other normative legal acts do not have retroactive effect.

Consequently, the amendments introduced by Bill No. 1025 cannot be applied to legal relationships that arose before they took effect.

At the same time, a large number of cases that were pending in the courts at that time have already been transferred to the High Anti-Corruption Court (HACC) for consideration. Therefore, given that at the time these cases were transferred, the provision in effect required the HACC to hear all cases falling within its jurisdiction, regardless of which authority conducted the investigation and referred the indictment to court, the High Anti-Corruption Court is obligated to accept such cases for consideration and has no legal grounds to return them to the court that previously heard them.

Furthermore, the legislature has not specified at all what courts should do if cases are returned to them from the High Anti-Corruption Court, in what order, or at what stage they should proceed with their consideration.

At the same time, the status of those proceedings that were not investigated by the National Anti-Corruption Bureau of Ukraine (NABU) but have not yet been referred to the High Anti-Corruption Court is also highly uncertain, since subparagraph “x” of subparagraph 3 of paragraph 2 of Section VI, “Final and Transitional Provisions,” of Law No. 2447, as amended by Law No. 2509, stipulated that cases must be transferred to the High Anti-Corruption Court for consideration from the moment it began its work; therefore, the act of transferring cases was tied to the court’s commencement of operations, rather than the holding of court hearings or the consideration of relevant motions.

Therefore, even if such cases have not yet been referred to the High Anti-Corruption Court, they must be referred to that court for consideration, since this obligation arose for the courts as of the date the High Anti-Corruption Court began its work—September 5, 2019; otherwise, the parties to such proceedings will have strong grounds to argue that the cases in question were heard by an unauthorized court.

The issue of the constitutionality of the amendments contained in Bill No. 1025 deserves special attention, since, in effect, the legislature—without amending the specific provision that defines the jurisdiction of the High Anti-Corruption Court— is defining specific cases in which it will apply—a move that contains a discriminatory element and could lead to the provision being declared unconstitutional, as was recently the case with Part 5 of Article 176 of the Criminal Procedure Code of Ukraine.

Thus, the above analysis of the amendments regarding the commencement of the High Anti-Corruption Court’s operations leads to the conclusion that any reforms and legislative initiatives must be carefully considered, prepared with the involvement of experts and practitioners in the relevant field, and brought into line with the provisions of current legislation, since attempts to make hasty changes can lead to procedural collapse and plant time bombs that may explode in a cascade at the most inopportune moment.