The time of the taboo on criticizing the institutions of the anti-corruption bloc has passed. Despite the large number of cases that have already been considered and court verdicts passed, including by judges, the main question for the High Anti-Corruption Court of Ukraine (HACC) is: where is the result for the top corruptors? Society's demand for justice has not been met. What's more, with the help of "Lozovyi’s amendments" (the parliament left them in force after voting on the law on strengthening the Specialized Anti-Corruption Prosecutor's Office (SAPO)), the High Anti-Corruption Court of Ukraine is actively completing long-term cases. Once adopted to save from punishment the son of the Minister of Internal Affairs of Ukraine Avakov, who was involved in the well-known "backpack case", the amendments upset the balance of the Criminal Procedural Code of Ukraine and the state's anti-corruption strategy.
Kolomoiskyi, Tatarov, Alperin... The list of lucky people can be continued. According to the statement of the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO) Oleksandr Klymenko, there are 1,000 (!) cases in the queue for the court's indulgence. And this is a disaster. The Criminal Procedural Code of Ukraine is written in such a way that when calculating the terms of the pre-trial investigation, the figures do not match in the courts of the first instance, appeals and cassation. It is organized chaos for those who want to avoid responsibility. Everyone has already understood this. On the president's website, a petition is awaiting a response with the demand to submit to the Verkhovna Rada of Ukraine a draft law on the cancellation of the "Lozovyi’s amendments" in full, which in an hour gathered the necessary 25,000 votes for consideration by the head of state.
Who is to blame for jeopardizing the results of seven (!) years of work of the anti-corruption unit? What did the Verkhovna Rada of Ukraine adopt on December 8, partially canceling the "Lozovyi’s amendments", and how will the judges of the High Anti-Corruption Court of Ukraine (HACC) apply the amendments remaining in the law? What needs to be done so that the cases of top corruptors are not closed for technical reasons, but are considered fairly?
These are the key questions to which we sought answers during the first part of the interview with the head of the High Anti-Corruption Court Vira Mykhaylenko. Judges of the High Anti-Corruption Court of Ukraine (HACC) make decisions daily within the framework of the "Lozovyi’s amendments" and are the first to suffer public dissatisfaction.
About the clash of positions, the half-hearted decision of the Verkhovna Rada of Ukraine and draft law No. 10100
— There are two versions that clashed: on the one hand, the Specialized Anti-Corruption Prosecutor's Office (SAPO) and the Anti-Corruption Action Center (AntAC), on the other - a number of experts and lawyers who published articles in the official media. According to the version of experts and lawyers, the Center for Combating Corruption (namely, the Anti-Corruption Action Center (AntAC) – the main stakeholder that calls for the cancellation of "Lozovyi's amendments") is manipulating, because there are no " Lozovyi's amendments" – after the adoption of amendments to of the Criminal Procedural Code of Ukraine in 2018, they became norms. And the scandal was caused by the fact that the prosecutors of the Specialized Anti-Corruption Prosecutor's Office (SAPO) violated the law, contrary to the changes made (the investigating judge had to extend the terms of the pre-trial investigation from this moment on during the competitive process of the prosecutor and the defense). The norm applied only to new cases, and since many new cases were combined with old ones during investigations, according to the opponents of the Anti-Corruption Action Center (AntAC), the prosecutors, by extending the deadlines on their own, created a huge problem. Moreover, they decided not to tell anyone about this problem.
The second version: the prosecutors (including at the level of the Specialized Anti-Corruption Prosecutor's Office (SAPO)) acted correctly, based on of the Criminal Procedural Code of Ukraine, which clearly states that the old number is assigned to the case in case of consolidation, and then the prosecutors continue the investigation period. What's more, the Specialized Anti-Corruption Prosecutor's Office (SAPO) and the Anti-Corruption Action Center (AntAC) claim that everyone knew about the different interpretation of the norm, but the judges of the Supreme Administrative Court did not have a single correct answer as to how the prosecutors should act. And often they themselves (!) recommended to the prosecutors to extend the terms of the investigation. And only after four (!) years of chaotic judicial practice, the Supreme Court made a decision in favor of investigating judges. Having given the keys to the door to freedom in the hands of lawyers involved in top corruption cases.
And now these doors are opened by the judges of the High Anti-Corruption Court of Ukraine (HACC). What do you say, your honor?
— The so-called "Lozovyi's amendments" entered into force on March 16, 2018. And, in my opinion, it was a low-quality law. Changes have been made pointwise to certain norms, not systemically. In the transitional provisions, when determining the effect of the new norms, the term "case" is used, which is almost never used in the Criminal Procedure Code of Ukraine. As a result, the rule on the extension of pre-trial investigation by the investigating judge applied only to new cases registered in the register after the changes came into force. At the same time, it was a legal rule of the Criminal Procedural Code of Ukraine that when a case is separated or merged, it is assigned an old number. And the date of entry of information about a criminal offense into the register is considered the date of this proceeding.
I faced such a situation when I exercised the authority of an investigating judge and several times I refused the detectives to grant requests to extend the term of the pre-trial investigation. There is only one reason: the "old" (started before the amendments to the Criminal Procedural Code of Ukraine) proceedings, which means that this is the prosecutor's authority.
— Then why were you silent?
— Who told you that we were silent? We studied judicial practice and scientific publications, I wrote articles on this topic in professional publications. At that time, there was no practice of the Supreme Court of Ukraine. There were several decisions, but without an in-depth analysis of what exactly the legislator wanted to say in such transitional provisions. The integrity of the law, the wording used, the issue of combining and separating cases - none of this existed at that time. The decision of the Joint Chamber of the Supreme Court of Ukraine regarding the extension of time limits in joint criminal proceedings appeared only in the fall of 2022.
— Let's explain as clearly as possible what the Verkhovna Rada of Ukraine adopted on December 8, partially canceling the " Lozovyi's amendments."
— First, the legislator excluded the procedure for calculating the terms of the pre-trial investigation before the notification of suspicion. That is, the terms will now be calculated only after the notification of suspicion. In this way, we return to the original positions that were in the Criminal Procedural Code of Ukraine before the amendments.
Secondly, the possibility of closing the criminal proceedings by the investigating judge at the request of persons whose rights and interests are violated is excluded. In principle, this is not a very frequent case, but it happened.
Thirdly, if previously there was a discussion about paragraph 10 of part 1 of article 284 of the Criminal Procedural Code of Ukraine, now it is clearly stated that the court closes the criminal proceedings if the period of pre-trial investigation has expired after the notification of the suspect. The court will issue the same decision except in the case of notification of the commission of a serious or particularly serious crime against the life and health of a person.
— That is, the rule that allows cases to be closed has remained.
— Yes, the norm has remained, and the court can close criminal proceedings on this basis. And the problematic issues in the "old" criminal proceedings that we are talking about, in my opinion, are not resolved by this law. And I don't know to what extent the courts will be able to deal with them.
— What does it mean, you don't know? The judges of the High Anti-Corruption Court of Ukraine (HACC) will have to make a decision tomorrow.
— First of all, all judges make decisions on these issues, not only judges of the High Anti-Corruption Court of Ukraine (HACC). That is, the problem is wider than one, even a specialized, court. Second, do you suggest that the court may not follow the direct rules of the law? I do not assume that. The law cannot apply to legal relationships that existed, therefore, with proceedings registered after 03/15/2018, everything is as clear as possible: the terms of the pre-trial investigation are extended by the investigating judge, not the prosecutor.
— How justified, in your opinion, is the existence of an unconditional basis for closing the case if the deadline has been exceeded by 1–3 (!) days? Or if, for example, the period between the closing and the cancellation of the illegal closing is included in the term? The requirement in the legislation to close such cases looks like a diversion, with the help of which it is very convenient to manipulate the calculation of terms.
— I would not say so. After all, the term of the pre-trial investigation is not some conditional value, it is a rather specific period of time. This term is calculated not in days or weeks, but mainly in months, it is clearly established in the law and is extended by the prosecutor or investigating judge. That is, there is clarity and certainty in the matter of the pre-trial investigation period for the pre-trial investigation body. Undoubtedly, there are complex criminal proceedings in which there is an objective need to conduct a very large volume of investigative actions.
However, in my opinion, the prosecution should take into account its temporal capabilities as one of the starting conditions when strategizing the investigation of criminal offenses. The term established by law or by the investigating judge has both a disciplinary function (in relation to the investigator, the prosecutor) and a security function (in relation to persons whose rights and interests are limited due to the conduct of a pre-trial investigation).
— Don't petitions for extension of terms overload the court? After all, by and large, the judge needs to study the whole case in order to understand whether it is necessary to extend the term? Maybe then it makes sense to entrust the court with responsibility for completing the investigation and sending cases for consideration on the merits?
— The judge really examines the materials in detail, to the extent provided by the parties. And this applies not only to requests to extend the term of the pre-trial investigation, but to any issue that comes up for consideration, both during the pre-trial investigation and during the trial. Therefore, it is probably not worth talking about overloading with requests of a certain type. This is the usual daily work of every judge conducting an investigative case.
As for the court's authority to determine the readiness of the case for trial, I don't think it's a good idea, because then the court makes a preliminary assessment of the case. And this is in conflict with the provisions of Article 291 of the Criminal Procedural Code of Ukraine, which prohibits providing the court with documents (except for a certain list) before the start of the trial. And there is no need to talk about competitiveness in such a case – what kind of competitiveness is there, if the court evaluates the proceedings for readiness for trial and only after that considers it?
— And for joint cases – again a loophole of uncertainty?
— As I have already said, the United Chamber of the Supreme Court of Ukraine expressed its opinion on the joint proceedings in the specified period. However, I think that this is not the last position of the Supreme Court of Ukraine on this matter. After all, it is impossible to predict in one decision all the circumstances in which the term of the pre-trial investigation was extended by the prosecutor or not by the investigating judge. It is obvious that the issue of the closure of criminal proceedings, which arose as a result of the application of Law No. 2147, has been the subject of heated debate for a long time both in society and in the professional circle.
But it is important for everyone who participates in this discussion to understand the basic thing: legislation is a system of norms and procedures, not individual amendments (no matter whose name is written on them). In a democratic state governed by the rule of law, the law must be of high quality. And if there are gaps in it or an ambiguous understanding, there are two ways – legislative, when the legislator himself "corrects" the provisions of the law, or judicial, when the highest judicial body sets standards for the application of laws, according to which courts – general and specialized – must act. But both of these paths are long and difficult. Moreover, the court resolves a specific case, and not resolves hopeless situations that have arisen as a result of a poor-quality law. In the general context of the terms of the pretrial investigation, we are in the middle of a long history, which concerns not only the High Anti-Corruption Court of Ukraine (HACC), but also the entire system of criminal justice.
— But the draft law No. 10100 authored by David Arahamia and Anastasia Radina has been registered in the parliament. Isn't returning to it and canceling all "Lozovyi's amendments" a chance?
— Understand my point, please. Even if the parliament cancels the "Lozovyi's amendments" by one law, we will still face another problem. No matter what state the issue of extending the terms of the pre-trial investigation and the possibility of closing the criminal proceedings will go to, the problem of criminal proceedings with a start date of March 16, 2018 will not disappear.
Precisely because there is the validity of the criminal procedural law in time, the dynamics of the legislation, when in ongoing legal relations, already changed norms are repeatedly changed with or without special provisions, etc. And if the legislator does not approach the spread of new norms to the legal relations that existed "before" the new law separately, in a complex manner, in compliance with the rules of normative engineering, the problem will not disappear, but will take on a new form. Therefore, I emphasize the quality of the law and the responsibility of the legislator in creating unambiguous and clear procedures as key instruments of justice.
About competitiveness, prosecutor's responsibility and human rights
— So you are in favor of a complete return to the system of calculating the terms of the pre-trial investigation, which was in effect until March 15, 2018? Do you think there are norms in the "Lozovyi's amendments" that have proven themselves positively and should be retained? For example, the extension of time after notification of suspicion by an investigating judge, not a prosecutor. There are also disputes about this.
— If we are talking about cases when a person has already been informed of suspicion, then it is obvious that the judge who conducts the investigation and who exercises judicial control during the criminal proceedings may be involved in this. After all, criminal proceedings against a person cannot last forever. Do you agree with this? When we do not yet have a specific person with the procedural status of a suspect and the rights and freedoms of no person are limited, then in such criminal proceedings it is possible to leave the authority to extend the investigation period to the prosecution, but with a certain final period. After all, how can the investigating judge know how much time the investigators need to conduct investigative actions? How will investigative actions be conducted? How long will the planned searches last? The judge does not have access to the strategy and tactics of criminal investigation. This is directly the authority of investigators and prosecutors. But, of course, one should always take into account the human factor and such a trait as conscientiousness and responsibility.
— If the risks associated with good faith are not so great for the reformed Specialized Anti-Corruption Prosecutor's Office (SAPO), the opposite is true for general criminal justice. Therefore, some experts say that by returning to the old system, where the pre-trial investigation period is extended by the prosecutor, we open the way for abuses at the level of local prosecutors and judges.
— I believe that there is always a risk. Regardless of which body is investigating, which prosecutor is leading, and the court is considering the case. Because everything is done by people. They may miss something, not take something into account, miscalculate somewhere. And then there is a desire to "save" the pre-trial investigation. But if we take the option of an ideal society, where the prosecutor acts in good faith, the investigator acts in good faith, then when the person has not yet been informed of the suspicion, the investigating judge can, in principle, be inactive in those matters in which human rights are not limited, for example, extending the terms of the pre-trial investigation.
— That is, if we remove the investigating judge, then we remove the democratic moment of competition between the parties?
— Let's record once again: there are two procedures for extending the terms of the pre-trial investigation. The first is when the term of the pre-trial investigation is extended until the moment when a specific person is notified of the suspicion. About these cases, we say that there is no competition in principle, because there is no defense side. Therefore, the prosecutor could extend the terms on his own. There is a second procedure, where there is already a specific suspect, in relation to whom a pre-trial investigation is being carried out. As part of this investigation, even in the absence of procedural coercion measures, his rights and freedoms are undoubtedly restricted. Here, the side of the defense and competition appear, accordingly, the need for a third party — the investigating judge.
— But the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO), Oleksandr Klymenko, and the Anti-Corruption Action Center (AntAC) rightfully state that the pre-trial investigation, both before and after the suspicion is presented, is the sole responsibility of the prosecutor. As arguments, the most toxic cases that everyone has heard about – Tatarov, OASK... When the judges already made an "ungrounded decision not to extend the investigation period" regarding the suspects. And no one was responsible for it. Please clarify your position again.
— I will not comment on the judges' decisions. In criminal proceedings, there is always a party that remains dissatisfied with the decision. However, it is necessary to understand the reasons why the terms were not extended. Of course, I can understand the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO). However, his concept is correct for an ideal world of criminal justice, where every investigator and every prosecutor acts in good faith and without mistakes. Then, perhaps, it would be correct to give the power to extend time limits at all stages of the pre-trial investigation to the prosecution. But we don't live in a perfect world. Moreover, we are talking not only about the Specialized Anti-Corruption Prosecutor's Office (SAPO), but also about investigators and prosecutors at all levels.
If the law is "tailored" to a specific body, it can open the floodgates for abuses, as they will operate throughout the system. In criminal proceedings, it is the investigating judge who is the guarantor of the observance of human rights during the pre-trial investigation. If a specific person has already been informed of the suspicion, then obviously there should be an independent arbiter who will ensure that the pre-trial investigation and, accordingly, the restriction of human rights, do not last forever. And this is a democratic standard.
— Does that mean there is a question of trust in investigators of the National Anti-Corruption Bureau of Ukraine (NABU) and prosecutors of the Specialized Anti-Corruption Prosecutor's Office (SAPO) on the part of the judges of the High Anti-Corruption Court of Ukraine (HACC)? Is it an internal split?
— This is a real and very relevant opportunity to correctly adjust the perception of anti-corruption bodies. It is worth noting that the High Anti-Corruption Court of Ukraine (HACC) is not their punishing part. The High Anti-Corruption Court of Ukraine (HACC)is a body of justice – a court. But the public expects that a separate court, even if it is created to consider high-profile cases, can have a separate position. Then why do we need a court? You can create "shooting" triples and rules for them. But that's not why we created the anti-corruption system, right? Ukraine is a member of the Council of Europe, negotiations on joining the EU have begun. So if we are talking about the fact that the court is the quintessence of the activity of the entire pre-trial investigation, then we should not demand that it play along with any of the parties. Because the court is always an independent arbiter. And it is possible to talk about an "internal split" in relation to parts of a single structure, which the High Anti-Corruption Court of Ukraine (HACC) is not in relation to the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor's Office (SAPO).
According to my impression, the vast majority of detectives and prosecutors of the Specialized Anti-Corruption Prosecutor's Office (SAPO) are competent and professional, which is obviously the result of strict competitive selection and constant training. Everything is fine. But we have to go further, developing the philosophy of the institutions of the anti-corruption sector of criminal justice.
— What does it mean?
— If the representatives of the prosecution receive a court decision that is not in their favor, then they should not declare without appeal that the court is biased or bribed, etc. The court looks at the case materials differently than the parties, and this should be accepted as an axiom. It is necessary to draw the correct conclusions from this and not to make mistakes in the future. This applies to the entire triad of justice, where there is the prosecution, the defense and the trial. Similarly, judges, if their decisions are overturned by a higher authority, should not be indignant or upset, but should take this into account for the future.
About conscientiousness, saving cases, and the legislator's mines
— I understood your strategy for the future. I think that some will agree with this strategy, and some will not, continuing to look for counterarguments. This is actually how institutions and legislation develop. However, let's return to the urgent problems: the cases of Kolomoiskyi, Alperin, Dubnevych and others have already been closed. Right now, another 1,000 cases are awaiting consideration, which may be closed due to the fact that the parliament of 2018 artificially created the problem, and did not correct it in 2023. How to save cases from closing?
— Again, I do not comment on specific cases. In case of doubts about the legality of the decisions of the Central Administrative Court, there is a general mechanism of appeal and cassation appeal. This, by the way, is the only legal procedure for expressing disagreement with a court decision. In our field of vision are the Appellate Chamber of the High Anti-Corruption Court of Ukraine (HACC) and the Supreme Court of Ukraine as courts of appeal and cassation instance.
As for the thousands of criminal proceedings that the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO) speaks about, for obvious reasons I do not know what the situation is with these proceedings. But from my practice, I determined that there are two types of such proceedings. In the first case, when the conditional pre-trial investigation body acted in good faith and applied to the investigating judge for an extension of the investigation period. And the investigating judge was already saying: "Guys, your proceedings were initiated even before the new rules, so continue on your own."
In the second case, when the conditional body of the pre-trial investigation also honestly believed that in the case of combining new cases with old ones, the prosecutors themselves should extend the term of the pre-trial investigation. Because the law applied the new provisions only to "new" cases.
However, there is a risk that the repeated selection and subsequent merging of the materials of the proceedings was carried out precisely to preserve the terms of the pre-trial investigation, so to speak, to "deceive" the current system of calculating terms.
— The head of the Specialized Anti-Corruption Prosecutor's Office (SAPO) answered you. According to Klymenko, the remaining norms make it possible to close any corruption case at the stage of pre-trial investigation, and now only simple cases can be investigated. "For example, a one-episode bribe where you don't have to look for complex intricacies and conspiracies," clarifies the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO). — But we investigate cases where there are many episodes. And each episode is a new proceeding, which the prosecutor combines with the main proceeding. If we are talking about criminal organizations, where there can be ten episodes each. We have a case for 700 episodes, and these are 700 case combinations. Do you seriously think that someone will be able to calculate the terms there?".
Sometimes, a series of selections and combinations of pre-trial investigation materials raises questions. I am not saying that it is systematic, and of course I do not want to assert anything, because I am not a representative of the prosecution and I may be wrong in my vision. But the judge looks at the materials comprehensively and objectively as an independent expert. In my decisions, I try to monitor it and evaluate it in order to make an informed decision. There is a certain algorithm based on which I evaluate in order to conclude that the prosecutor acted in good faith and honestly.
— Tell me, is saving 1,000 cases of top corruption, which are the result of seven (!) years of anti-corruption work, from being closed, a virtuous aspiration?
— Investigators and prosecutors cannot be disrespected for such a desire. The fact that the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO) wants to save 1,000 cases is a completely understandable position of this person as a prosecutor. Given the enormous amount of work involved in such proceedings, how many people are involved, what resources are spent on it, and what the expectations of society are regarding these cases. But the court is not created to save the cases of the prosecution. In addition, the High Anti-Corruption Court of Ukraine (HACC) was not created for this either. Why are you asking us these questions? Of course, as a person and a professional, I understand Oleksandr Klymenko and his intentions. But I will repeat that as the head of the High Anti-Corruption Court of Ukraine (HACC), I do not want the responsibility for saving such cases to be placed on the court. Because the court must be independent and act on the basis of the law, which establishes the appropriate procedures. But here, of course, there is a small note: the law must be of high quality, clear and unambiguous.
— That is, we now together with you looked towards the parliament and recorded for ourselves and the reader how dangerous it is for the state to have an incompetent, politically or business-oriented legislator. (The law enforcement committee of the Verkhovna Rada of Ukraine, headed by the representative of the majority controlled Bankova Street, people’s deputy of the Servant of the People party, Serhii Ionushas, is responsible for the development of all necessary changes to the Criminal Procedural Code of Ukraine.) The time has come to make important decisions, take responsibility and work actively.
— I just wanted to say that the law used by the prosecution, the court, and the defense must be of high quality. If there is vagueness or an ambiguous interpretation of the norms, then the law is of poor quality. And only judicial practice through the application of this low-quality law can give guidelines as to how courts and representatives of the prosecution and defense should act in such conditions. It is not my function to judge how the legislature makes laws. My function is to fulfill them.
— How is this not your function? I understand that the judicial branch of government does not have the right of legislative initiative. But there is a platform and an opportunity to publicly communicate the problems that you face every day, and which directly affect the reputation of judges. The fact that you wrote several articles in specialized publications in 2021 did not solve the problem.
— There is a principle of separation of powers, according to which we cannot influence the legislative power. We cannot be lobbyists. When we are sent certain draft laws concerning the activities of the judiciary, we certainly actively participate, provide suggestions, remarks, and comments. We talk about problems at round tables and forums. Jurisprudence always takes a lot of time, nothing works by magically snapping fingers. It does not happen that a law was adopted today, and a problem was discovered tomorrow. Judicial practice reveals the problem in legislation gradually. Five years is a normal term for this process. Because there is a first instance, there is an appeal that reviews the decision of the first instance, then a cassation in the Supreme Court of Ukraine – all this takes a lot of time.
— Yes, the demining process is always more complicated than simply laying a mine. All the more so when they are laid on the legislative field by their own people. I think that if you can't be a lobbyist, it's time for public organizations to start digging deeper to approach problem solving not point by point, but comprehensively.
— You and I speak different languages. I understand that you are a member of the public and it is your job to find out who is guilty, and I am the judge. For me, the key is to correctly apply the law in the light of the circumstances of a particular case. In difficult situations, this is helped by the practice of the highest instance, the Supreme Court of Ukraine, which answers the question: how to act? And the system of calculating the terms of the pre-trial investigation, in fact, is not the only problem.
— How closely do you communicate with the Supreme Court of Ukraine? To what extent will this court be able to influence the situation? After the inconclusive vote in the parliament, the head of the Specialized Anti-Corruption Prosecutor's Office (SAPO) called on the judges of the High Anti-Corruption Court of Ukraine (HACC) to "continue to consider cases, and not to close them according to paragraph 10 of the dubious amendments."
— We have communication platforms – forums, conferences, where we can discuss problems and receive feedback from judges of the Supreme Court of Ukraine. But the Supreme Court of Ukraine is not a court of first instance, it almost never comes to pre-trial investigation issues, because for the vast majority of decisions made by investigative judges during pre-trial investigation, the last instance is the appellate court. Therefore, the Supreme Court of Ukraine does not face the problem of extending time limits until the pre-trial investigation is completed and the case is transferred to the court, which conducted the trial and made a decision, which in turn became the subject of an appellate review. And only after that, if there are grounds for opening cassation proceedings, the Supreme Court of Ukraine can consider a separate issue of pre-trial investigation in the light of the arguments of the parties. For example, the legality of extending the term of the pre-trial investigation by the prosecutor.