Anti-corruption proceedings

The High Anti-Corruption Court, NABU and SAPO. Defence of public officials in anti-corruption proceedings.

The criminal procedure is the same. The institutions are different: detectives of the National Anti-Corruption Bureau of Ukraine (NABU) investigate, the Specialized Anti-Corruption Prosecutor’s Office (SAPO) provides procedural supervision, the High Anti-Corruption Court (HACC) hears the case, and its Appeals Chamber reviews its decisions.

What follows covers only how these proceedings differ from ordinary criminal proceedings. It is an orientation, not advice on a case.

The general sequence of stages — from search and detention to notice of suspicion, a measure of restraint and trial — is set out separately in Ukrainian. Criminal defence — in Ukrainian

Investigative jurisdiction and procedural supervision

Article 216 of the «Кримінальний процесуальний кодекс» (the Criminal Procedure Code of Ukraine) determines investigative jurisdiction and contains a separate list for NABU detectives. The status of the Bureau is set by the Law «Про Національне антикорупційне бюро України»; the offices to which the law links anti-corruption jurisdiction are addressed in the Law «Про запобігання корупції». A prosecutor’s procedural supervision is governed by Article 36 of the Code; the status of SAPO is set by the Law «Про прокуратуру».

What is determinedwho handles the case and, with that, every procedural destination: which investigating judge, which court and where a complaint must be filed.

What is foreclosednothing. Nothing has yet been lost, but the route of the proceedings has already been determined.

Covert investigative actions

The grounds and procedure for covert investigative (detective) actions (негласні слідчі (розшукові) дії) are set by Article 246 of the Code, and their time limits by Article 249. Article 247 determines which judges examine applications for authorisation; for cases within this investigative jurisdiction, they are HACC investigating judges.

What is determinedthe volume of material collected before the person learns of the proceedings.

What is foreclosednothing — but nothing is visible either: neither the list of actions nor the periods for which they were authorised. How they are conducted and the limits of admissibility are outside the scope of this page.

Measure of restraint and bail

The list of measures, the risks and the examination procedure are outside the scope of this page; bail is governed by Article 182 of the Code. The difference is institutional: a SAPO prosecutor files the application, a HACC investigating judge examines it, and the ruling may be appealed to the HACC Appeals Chamber.

What is determinedwhether the person will remain at liberty and the amount at which bail is set.

What is foreclosednothing beyond what the same stage would foreclose in ordinary proceedings. The difference is who examines the matter and where the appeal goes.

Pre-trial investigation time limits

Time limits are governed by Article 219 of the Code and extensions by Article 294. Expiry of the time limit after notice of suspicion is named as a ground for terminating proceedings in paragraph 10 of part 1 of Article 284. Article 5 determines which version of the Code applies to a procedural action.

The case-law is not uniform. Panels of HACC and the Cassation Criminal Court of the Supreme Court have reached opposing conclusions on at least three questions: whether a court may terminate proceedings on this ground during trial; whether paragraph 10 of part 1 of Article 284 applies to proceedings entered in the Unified Register of Pre-Trial Investigations (ЄРДР) before March 2018; and who extends the time limit after three months — a prosecutor or an investigating judge. The Joint Chamber of the Cassation Criminal Court of the Supreme Court expressed its position in Case No. 753/12578/19; individual HACC panels continued to give reasons for disagreeing afterwards.

What is determinedthe question asked most often and just as often answered differently.

What is foreclosednothing at once: the question is raised at different stages, and the answer may be different.

Trial and review in HACC

HACC jurisdiction is determined by Article 33-1 of the Code; the status of the Court, its Appeals Chamber and its investigating judges is set by the Law «Про Вищий антикорупційний суд». The Appeals Chamber forms part of the same court, rather than a separate appellate court; the court of cassation is the Cassation Criminal Court of the Supreme Court.

What is determinedeverything established at first instance.

What is foreclosedthe limits of appellate and cassation review are outside the scope of this page.

Special pre-trial investigation and an agreement on admission of guilt

Investigation in the absence of the suspect is governed by Article 297-1 of the Code. An agreement on admission of guilt (угода про визнання винуватості) is governed by Article 469; that Article contains a separate rule for particularly serious offences within NABU investigative jurisdiction.

What is determinedwhether the case will proceed without the person’s participation and whether an agreement is possible.

What is foreclosednothing. These are separate procedural regimes with their own conditions of entry, not extensions of the general procedure.

What the association does in this practice area

The association’s practice includes defence in proceedings within the investigative jurisdiction of the National Anti-Corruption Bureau, during the pre-trial investigation and before the court, including:

• withdrawal by a prosecutor of the Specialized Anti-Corruption Prosecutor’s Office from maintaining the public prosecution, followed by termination of the proceedings by the High Anti-Corruption Court.

The scale of the court proceedings in this matter, as stated in the ruling:

71

court hearings with a total duration of 144 hours and 35 minutes

62

records of covert investigative (detective) actions included in the prosecution evidence

227

items of evidence and documents from the defence, compared with more than 150 from the prosecution

77

motions to have evidence declared inadmissible — 76 by the defence and 1 by the prosecution

7

years from the entry of information in the Unified Register of Pre-Trial Investigations on 20 June 2017 to termination of the proceedings

The prosecutor’s resolution stated that the prosecution was no longer able to prove guilt «у зв’язку із виниклою відсутністю достатніх доказів та вичерпанням можливостей додаткового їх отримання».

Ruling of the High Anti-Corruption Court dated 29 May 2024 in Case No. 369/5566/19 — a public anonymised document from the Unified State Register of Court Decisions.

Publications by the association on this subject

• Beware, legal divergences: at what stage does paragraph 10 of part 1 of Article 284 of the Code apply? HACC and Supreme Court practice — Ukrainian publication
• A race against time: the Supreme Court and HACC in opposing camps over pre-trial investigation time limits — Ukrainian publication
• The Criminal Procedure Code in the hands of HACC and Supreme Court judges: who will prevail in the contest of interpretations? — Ukrainian publication

The outcome of the proceedings is determined by the court.