"What cases will be referred to the High Anti-Corruption Court starting September 5, 2019?" — Iryna Kuzina, attorney at Barristers Law Firm.

JUDICIAL REFORM

 

Which cases will be referred to the High Anti-Corruption Court starting September 5, 2019?

 

On September 5, 2019, the High Anti-Corruption Court will begin its work. Judges in the general courts are looking forward to this date in the hope of being relieved of a significant number of cases. But will their hopes be fulfilled?

 

The start date for the High Anti-Corruption Court (hereinafter “HACC”)—September 5, 2019—was set at the General Assembly of the court’s judges (held on May 7, 2019).

From that moment on, subparagraph 3 of paragraph 2 of Section VI, “Final and Transitional Provisions,” of the Law of Ukraine “On the High Anti-Corruption Court” dated June 7, 2018, No. 2447-VIII, which amends the Criminal Procedure Code of Ukraine, will enter into force.

However, even before these provisions took effect, they had been amended — by 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’” dated July 12, 2018, No. 2509-VIII.

Taking these amendments into account, as of September 5, 2019, paragraph 20-2 of Section XI “Transitional Provisions” of the Criminal Procedure Code of Ukraine will enter into force in the following wording:

“20-2. From the date the High Anti-Corruption Court begins its work:

1) investigating judges (except for investigating judges of the High Anti-Corruption Court) shall cease to accept for consideration motions in criminal proceedings concerning crimes classified by this Code as falling under the jurisdiction of the High Anti-Corruption Court, and courts of first instance (except for the High Anti-Corruption Court) shall cease accepting indictments, motions for the application of compulsory medical measures, and motions for exemption from criminal liability in such criminal proceedings. Such motions and indictments shall be filed in accordance with established procedure with the investigating judges of the High Anti-Corruption Court and the High Anti-Corruption Court;

2) Courts of appeal (except for the Appeals Chamber of the High Anti-Corruption Court) shall cease accepting for consideration appeals in criminal proceedings concerning crimes assigned by this Code to the jurisdiction of the High Anti-Corruption Court;

3) motions in criminal proceedings concerning offenses assigned by this Code to the jurisdiction of the High Anti-Corruption Court, which were received by investigating judges and not considered 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 established procedure by the investigating judges of that court;

4) criminal proceedings concerning offenses classified by this Code as falling under the jurisdiction of the High Anti-Corruption Court, the trial proceedings for which in the courts of first and appellate instance have not been completed 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;

5) Appeals against court decisions rendered prior to the date the High Anti-Corruption Court begins its work, in criminal proceedings concerning offenses assigned by this Code to the jurisdiction of the High Anti-Corruption Court, shall be conducted in accordance with the rules of jurisdiction provided for by this Code;

6) applications for review based on newly discovered circumstances of court decisions rendered by courts of first and appellate instance prior to the date the High Anti-Corruption Court began operations in criminal proceedings concerning offenses falling within the jurisdiction of the High Anti-Corruption Court, shall be filed with the High Anti-Corruption Court and considered by it in accordance with the established procedure.”

It should be noted that the issue of transferring to the High Anti-Corruption Court complaints filed with investigating judges pursuant to Article 303 of the Code of Criminal Procedure of Ukraine has not been regulated. Dmytro Mykhailenko, a judge of the High Anti-Corruption Court’s Appeals Chamber, drew attention to this during his speech at the “Golden Duke” Summer Forum on Criminal Law and Procedure organized by the Ukrainian Bar Association (Odesa) on June 21, 2019. In his opinion, complaints filed under Article 303 of the Criminal Procedure Code of Ukraine that had not been considered as of September 5, 2019, will remain pending before the investigating judges of the general courts.

Incidentally, applications to ensure the observance of human rights under Article 206 of the Code of Criminal Procedure of Ukraine have found themselves in the same situation.

However, some investigating judges of general courts hope that complaints filed under Article 303 of the CPC of Ukraine will be transferred to the High Anti-Corruption Court.

Their position cannot be called entirely unfounded, since, according to Part 2 of Article 33-1 of the Code of Criminal Procedure of Ukraine, which will take effect on September 5, 2019, “investigating judges of the High Anti-Corruption Court shall exercise judicial oversight over the observance of the rights, freedoms, and interests of individuals in criminal proceedings concerning crimes falling within the jurisdiction of the High Anti-Corruption Court in accordance with Part 1 of this article.”

As for new complaints—those filed on or after September 5, 2019—under Article 303 of the CPC, there is no doubt: the amendments to Part 1 of Article 306 of the CPC of Ukraine will take effect, and in criminal proceedings concerning crimes falling under the jurisdiction of the High Anti-Corruption Court, such complaints will be considered by the investigating judges of the High Anti-Corruption Court.

Let us return to the question of which proceedings that have not yet been concluded by a trial (or an appeal) will be transferred to the High Anti-Corruption Court. Subject-matter jurisdiction is defined in Article 33-1 of the CPC of Ukraine, which will take effect on September 5, 2019:

“Article 33-1. Subject-Matter Jurisdiction of the High Anti-Corruption Court

1. The High Anti-Corruption Court shall have 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, and 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.

2. Investigating judges of the High Anti-Corruption Court shall exercise judicial oversight over the observance of the rights, freedoms, and interests of individuals in criminal proceedings concerning offenses falling within the jurisdiction of the High Anti-Corruption Court in accordance with paragraph one of this article.

3. Other courts specified in this Code may not hear criminal proceedings concerning offenses falling within the jurisdiction of the High Anti-Corruption Court (except as provided for in the seventh paragraph of Part 1 of Article 34 of this Code).”

Thus, proceedings that meet the following criteria will fall under the jurisdiction of the High Anti-Corruption Court:

1. The criminal proceedings concern one of the following offenses: 

Article 191 – “Misappropriation, embezzlement, or acquisition of property through abuse of official position”—if committed through abuse of official position.

Article 206-2 – “Unlawful appropriation of property belonging to an enterprise, institution, or organization.”

Article 209 – “Legalization (laundering) of proceeds obtained by criminal means.”

Article 210 – “Misuse of budget funds, incurring budget expenditures, or granting loans from the budget without established budget allocations or in excess thereof.”

Article 211 – “Issuance of regulatory acts that reduce budget revenues or increase budget expenditures in violation of the law.”

Article 262 – “The theft, misappropriation, or extortion of firearms, ammunition, explosives, or radioactive materials, or the acquisition thereof through fraud or abuse of official position” — if committed through abuse of official position.

Article 308 – “Theft, misappropriation, or extortion of narcotic drugs, psychotropic substances, or their analogues, or the acquisition thereof through fraud or abuse of official position” – if committed through abuse of official position.

Article 312 – “Theft, misappropriation, or extortion of precursors, or the acquisition thereof through fraud or abuse of official position” – in cases where the offense is committed through abuse of official position.

Article 313 – “Theft, misappropriation, or extortion of equipment intended for the manufacture of narcotic drugs, psychotropic substances, or their analogues, or the acquisition thereof through fraud or abuse of official position, and other unlawful acts involving such equipment” — if committed through abuse of official position.

Article 320 – “Violation of established rules governing the circulation of narcotic drugs, psychotropic substances, their analogs, or precursors” – if committed through abuse of official position.

Article 354 – “Bribery of an employee of an enterprise, institution, or organization.”

Article 357 – “Theft, misappropriation, or extortion of documents, stamps, or seals; obtaining them through fraud or abuse of official position; or their damage” – if committed through abuse of official position.

Article 364 – “Abuse of power or official position.”

Article 364-1 – “Abuse of authority by an official of a private-law legal entity, regardless of its organizational and legal form.”

Article 365-2 – “Abuse of Authority by Persons Providing Public Services.”

Article 368 – “Acceptance of a proposal, promise, or receipt of an unlawful benefit by a public official.”

Article 368-2 – “Illegal Enrichment” – declared unconstitutional by Decision No. 1-r/2019 of the Constitutional Court of Ukraine dated February 26, 2019.

Article 368-3 – “Bribery of a public official of a private-law legal entity, regardless of its organizational and legal form.”

Article 368-4 – “Bribery of a Person Providing Public Services.”

Article 369 – “Offering, promising, or providing an unlawful benefit to an official.”

Article 369-2 – “Abuse of Influence.”

Article 366-1 – “Declaration of False Information”

Article 410 – “Theft, misappropriation, or extortion by a military servicemember of weapons, ammunition, explosives, or other combat substances, means of transportation, military and specialized equipment, or other military property by a military servicemember, as well as the acquisition thereof through fraud or abuse of official position”—in cases where the offense is committed through abuse of official position.

2. One of the conditions set forth in paragraphs 1–3 of Part 5 of Article 216 of the Criminal Procedure Code of Ukraine is present: 

1) the relevant perpetrator of the crime (in particular, a People’s Deputy of Ukraine, a Category “A” civil servant, a judge, the head of a large enterprise in which the state or municipal share of the authorized capital exceeds 50%, etc.);

2) the value of the subject matter of the crime or the damage caused by it exceeds five hundred times the subsistence minimum for able-bodied persons, as established by law at the time the crime was committed (if the crime was committed by an official of a state body, a law enforcement agency, a military unit, a local self-government body, or a business entity in which the state or municipal share of the authorized capital exceeds 50 percent);

3) a crime provided for in Article 369 or Part 1 of Article 369-2 of the Criminal Code of Ukraine was committed against an official as defined in Part 4 of Article 18 of the Criminal Code of Ukraine or in paragraph 1 of this part.

In other words, in all cases, there are statutory requirements regarding the perpetrator of the crime or the person against whom the crime is committed.

Currently, discussions are ongoing regarding the subject-matter jurisdiction of cases before the High Anti-Corruption Court.

Thus, the Center for Political and Legal Reforms has concluded that the provisions on subject-matter jurisdiction should be interpreted narrowly, according to which only criminal proceedings whose pretrial investigations were conducted by detectives of the National Anti-Corruption Bureau of Ukraine will be transferred (http://pravo.org.ua/ua/news/20873675-visnovok-schodo-pidsudnosti-kriminalnih-provadgeen-vischomu-antikoruptsiynomu-sudu).

In my opinion, such a narrow interpretation is not justified, since paragraph 1 of part 5 of Article 216 of the Code of Criminal Procedure of Ukraine (“Detectives of the National Anti-Corruption Bureau of Ukraine shall conduct…”) implies that “detectives of the National Anti-Corruption Bureau of Ukraine must conduct…,” and thus the interpretation proposed by the Center for Policy and Legal Reforms (CPLR) loses its logical basis. This is all the more so given that some of the proceedings were referred to the courts even before the NABU began its operations.

In any case, we await the practice of the Cassation Criminal Court within the Supreme Court, since the transfer of criminal proceedings will be carried out in accordance with Article 34 of the CPC of Ukraine, as determined at the meetingto discuss problematic issues regarding the jurisdiction of the High Anti-Corruption Court of Ukraine and the implementation of transitional provisions on the transfer of criminal proceedings to the High Anti-Corruption Court on June 20, 2019, held with the support of the EU Anti-Corruption Initiative in Ukraine.

(c) Iryna Kuzina, attorney
June 24, 2019