Presentation by Denis Ponomarenko, Partner at BARRISTERS, LLC, and Irina Glovyuk, Legal Counsel at BARRISTERS, LLC, on the topic: "Issues of Subject-Matter Jurisdiction of the High Anti-Corruption Court"

THE ISSUE OF SUBJECT-MATTER JURISDICTION OF THE HIGHEST ANTI-CORRUPTION COURT

I.V. Glovuk

Head of the Department of Criminal Procedure,

Doctor of Law, Associate Professor

(National University “Odessa Law Academy”)

D.V. Ponomarenko

Attorney, Partner

(Barristers, LLC)

Ph.D. candidate, Department of Criminal Procedure

(National University “Odessa Law Academy”)

ISSUES OF SUBJECT-MATTER JURISDICTION OF THE HIGH ANTI-CORRUPTION COURT

The High Anti-Corruption Court, scheduled to begin operations in early September 2019, is already raising questions regarding its application of certain provisions of the Criminal Procedure Code of Ukraine, particularly with regard to subject-matter jurisdiction. The issue of correctly defining (though this is not within the High Anti-Corruption Court’s authority) and interpreting the rules regarding the subject-matter jurisdiction of this court is of paramount importance, since any error in this matter poses a threat by violating the right to a trial established by law, which is guaranteed to every defendant under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 33-1 of the Criminal Procedure Code of Ukraine (Part 1), as amended by the Law of June 7, 2018, provides: “1. The High Anti-Corruption Court has jurisdiction over criminal proceedings concerning corruption offenses provided for in the note to Article 45 of the Criminal Code of Ukraine, Articles 206-2, 209, 211, 366-1 of the Criminal Code of Ukraine, provided that at least one of the conditions set forth in paragraphs 1–3 of Part 5 of Article 216 of the Criminal Procedure Code of Ukraine is met.”

The issue arises specifically from paragraph 1 of this article, and they, at first glance, are as follows: 1) Does the provision “if at least one of the conditions set forth in paragraphs 1–3 of Part 5 of Article 216 of the Criminal Procedure Code of Ukraine is met” also apply to Article 45 of the Criminal Code of Ukraine; 2) if so, how should it be reconciled with the fact that the list of crimes in Article 45 of the Criminal Code and in Part 5 of Article 216 of the Code of Criminal Procedure do not coincide?

After all, Article 45 of the Criminal Code of Ukraine states: “Corruption offenses under this Code are those provided for in Articles 191, 262, 308, 312, 313, 320, 357, 410, if committed through abuse of official position, as well as the offenses provided for in Articles 210, 354, 364, 364-1, 365-2, 368–369-2 of this Code (Article 368-2 has been declared inconsistent with the Constitution of Ukraine (unconstitutional) pursuant to Decision No. 1-r/2019 of the Constitutional Court dated February 26, 2019). Part 5 of Article 216 of the Criminal Procedure Code of Ukraine provides that detectives of the National Anti-Corruption Bureau of Ukraine conduct pretrial investigations of crimes provided for in Articles 191, 206-2, 209, 210, 211, 354 (with respect to employees of legal entities under public law), 364, 366-1, 368, and 368-2 (Article 368-2 has been declared inconsistent with the Constitution of Ukraine (it is unconstitutional), pursuant to Constitutional Court Decision No. 1-r/2019 dated February 26, 2019), 369, 369-2, and 410 of the Criminal Code of Ukraine.

As can be seen, Articles 262, 308, 312, 313, 320, and 354 (except for employees of public-law legal entities), 357, 364-1, 365-2, 368-3, and 368-4 of the Criminal Code of Ukraine. This allows us to draw an initial conclusion that the restrictive wording of Article 33-1 of the Criminal Procedure Code of Ukraine—“if at least one of the conditions provided for in paragraphs 1–3 of Part 5 of Article 216 of the Criminal Procedure Code of Ukraine,” applies only to those crimes listed in Article 45 of the Criminal Code of Ukraine that fall under the jurisdiction of the NABU.

The provision of Part 1 of Article 33-1 of the Criminal Procedure Code of Ukraine is structured in such a way that it defines the list of corruption offenses differently than in the Criminal Code of Ukraine, a point rightly noted in the literature [1], and defines them through a list that contains no coordinating conjunctions. This makes it possible to assert, at the very least: 1) that the qualifying phrase in Article 33-1 of the Criminal Procedure Code of Ukraine—“if at least one of the conditions provided for in paragraphs 1–3 of Part 5 of Article 216 of the Criminal Procedure Code of Ukraine is met”—applies to the offenses provided for in the note to Article 45 of the Criminal Code of Ukraine (however, only those listed that fall under the jurisdiction of the NABU), and those provided for in Articles 206-2, 209, 211, and 366-1 of the Criminal Code of Ukraine; 2) The legislature has chosen an interesting method of determining the jurisdiction of the High Administrative Court of Ukraine (VAS) based on the investigative authority of the NABU, which indicates that criminal proceedings concerning offenses that constitute corruption within the meaning of Article 45 of the Criminal Code of Ukraine, but are not under the investigative jurisdiction of NABU, will not fall under the jurisdiction of the High Administrative Court, but must be considered, all other things being equal, in accordance with the general rules of jurisdiction.

However, this conclusion does not exhaust the entire issue of the subject-matter jurisdiction of the High Administrative Court. After all, in practice, there are situations where proceedings under the investigative jurisdiction of NABU are investigated by other pre-trial investigation bodies.

This issue has already been addressed by certain experts. In particular, D. Kalmykov, A. Marchuk, and M. Kharvonyuk assert that the High Anti-Corruption Court has jurisdiction exclusively over criminal proceedings in which the pretrial investigation was conducted by NABU detectives in accordance with the provisions of Part 5 of Article 216 of the Code of Criminal Procedure. A logical and grammatical interpretation of Part 5 of Article 216 of the Code of Criminal Procedure provides grounds for asserting that the first paragraph of this part of the article is inextricably linkedwith its subparagraphs 1–3, which define the circumstances under which pretrial investigations in criminal proceedings concerning the offenses specified in the first paragraph are conducted by NABU detectives. The presence of at least one circumstance specified in subparagraphs 1–3 of Part 5 of Article 216 of the CPC gives rise to a specific legal consequence —the conduct of the pretrial investigation of criminal proceedings concerning certain criminal offenses exclusively by NABU detectives. Without taking into account the provisions of the first paragraph of Part 5 of Article 216 of the CPC, the provisions of subparagraphs 1–3 of this part lose their semantic and legal meaning [2]. One must fully agree with the interpretation of the relevant provisions of the Code of Criminal Procedure of Ukraine; however, as noted above, they are not always correctly applied in practice, and therefore situations cannot be ruled out where proceedings are in fact within NABU’s jurisdiction, yet, for various reasons, are investigated by another pretrial investigation body, even though both the subject-matter criterion for jurisdiction and the other criteria for jurisdiction provided for in subparagraphs 1–3 of Part 5 of Article 216 of the CPC of Ukraine are present. In that case, if the provision is interpreted as proposed above, these proceedings would, for unknown and unclear reasons, be removed from the jurisdiction of the High Administrative Court.

This gives grounds for another conclusion: if the conditions set forth in Part 1 of Article 33-1 of the Criminal Procedure Code of Ukraine are met, the criminal proceedings fall under the jurisdiction of the High Administrative Court regardless of which authority conducted the pretrial investigation.

In addition, questions regarding jurisdiction arise in situations where: 1) a prosecutor supervising pretrial investigations conducted by detectives of the National Anti-Corruption Bureau of Ukraine may, by his or her ruling, assign criminal proceedings involving crimes as provided for in the first paragraph of Part 5 of Article 216 of the CPC of Ukraine, to the jurisdiction of detectives of the National Anti-Corruption Bureau of Ukraine, if the relevant crime caused or could have caused serious consequences for the freedoms and interests of a natural or legal person protected by law, as well as for state or public interests; 2) Detectives of the National Anti-Corruption Bureau of Ukraine, for the purpose of preventing, detecting, stopping, and solving crimes falling within its jurisdiction, by decision of the Director of the National Anti-Corruption Bureau of Ukraine and with the consent of the prosecutor of the Specialized Anti-Corruption Prosecutor’s Office, may also investigate crimes falling under the jurisdiction of investigators from other agencies. Given that these proceedings do not exhibit the characteristics set forth in Article 33-1 of the Criminal Procedure Code of Ukraine, one should support the view that NABU detectives may investigate crimes for which criminal proceedings are not within the jurisdiction of the High Anti-Corruption Court [1], although, in our view, this situation is not limited to the case specified in paragraph 13 of Part 5 of Article 216 of the CPC. In such cases, pursuant to Part 3 of Article 32 of the CPC, as amended by Law No. 2447-VIII, the criminal proceedings are conducted by the court geographically closest to the court where the NABU regional office that conducted the pretrial investigation is located [1].

Thus, in situations where: 1) the prosecutor supervising pretrial investigations conducted by detectives of the National Anti-Corruption Bureau of Ukraine, by his or her ruling, has referred criminal proceedings concerning crimes as provided for in the first paragraph of Part 5 of Article 216 of the Code of Criminal Procedure of Ukraine, to the jurisdiction of detectives of the National Anti-Corruption Bureau of Ukraine, provided that the relevant crime caused or could have caused serious consequences for the freedoms and interests of a natural or legal person protected by law, as well as for state or public interests; 2) Detectives of the National Anti-Corruption Bureau of Ukraine, for the purpose of preventing, detecting, stopping, and solving crimes falling within its jurisdiction, by decision of the Director of the National Anti-Corruption Bureau of Ukraine and in agreement with the prosecutor of the Specialized Anti-Corruption Prosecutor’s Office, investigated crimes falling under the jurisdiction of investigators from other agencies—such proceedings are not subject to the jurisdiction of the High Administrative Court.

References:

1. Slutskaya, T. “Controversial Issues Regarding the Jurisdiction of the Anti-Corruption Court.” URL: https://antydot.info/analytics/problemni-pytannya-pidsudnosti-antykorsudu/
2. Conclusion on the Jurisdiction of Criminal Proceedings Before the High Anti-Corruption Court. URL: https://www.pravo.org.ua/ua/news/20873675-visnovok-schodo-pidsudnosti-kriminalnih-provadgeen-vischomu-antikoruptsiynomu-sudu