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18.09.2019

THE CORRUPTION IN THE ANTI-CORRUPTION COURT: TO BE OR NOT TO BE?

On September 05, 2019 in Ukraine, the High Anti-Corruption Court of Ukraine commenced performing its duties.

It should be stressed that during the years 2014-2016 several specialized government bodies were created in our country to combat corruption: The National Anti-Corruption Bureau of Ukraine, the National Agency on Corruption Prevention, the National Agency of Ukraine for finding, tracing and management of assets derived from corruption and other crimes.

In the Corruption Perceptions Index 2016 (CPI), Ukraine received 29 points out of 100, ranking 131 out of 176 countries. According to Transparency International, the absence of an effective judicial system impedes the fight against corruption in Ukraine.

The Constitution of Ukraine provides that higher specialized courts may operate in accordance with the law. The Law of Ukraine "On Judiciary and the Status of Judges" enshrined that higher specialized courts operate as first instance courts as well as appellate courts for the consideration of particular categories of cases. The highest specialized courts are the High Intellectual Property Court and the High Anti-Corruption Court.

The logical sequence of actions to fight corruption is to create the High Anti-Corruption Court, which operates under the Law of Ukraine "On High Anti-Corruption Court of Ukraine." In the world practice, parallel State Court Proceedings have been established in countries such as Bulgaria, Indonesia, Malaysia, Afghanistan.

The High Anti-Corruption Court of Ukraine administers justice as a first instance court and appellate court in criminal proceedings against crimes within its jurisdiction, as well as by exercising judicial control over the respecting human rights, fundamental freedoms and interests of individuals in the order clarified in procedural law.

Interestingly, the Appeals Chamber of the High Anti-Corruption Court and First Instance Chamber of the High Anti-Corruption Court cannot be in the same building.

The Subject-matter jurisdiction of the High Anti-Corruption Court is not only a crimes directly related to corruption, but also a number of other crimes under Articles 191, 262, 308, 312, 313, 320, 357, 410 in the case of abuse of position.

In order for the case to be considered by the court it need not only qualification for the relevant Article of the crime, but also the appropriate subject of crime and target crime size, which is hundred or more times what is viewed as minimum cost of living adjustment (8,500 UAH).

The list of subjects, on which the criminal case will be considered by a court, is established by Clause 1 of Part 5 of Article 216 of Criminal Procedure Code of Ukraine and involves mainly civil officers of the highest level. It is also interesting that managers of large enterprises, in which the share of State or Municipality in registered capital exceeds 50 percent, are also included in this circle of subjects.

As we can see, our State consistently creates regional mechanisms for combating and preventing corruption. This raises several questions. What determines the effectiveness of such mechanisms? Is it enough to create a bunch of government bodies to combat corruption in our country, when it is so widespread as a circulatory system in the human body? Quis custodiet ipsos custodes? ("Who will guard the guards themselves?" - Lat.)

The responses will be provided in due time and will be clarified in line with case law. The Roman poet said that, if people‘s consciousness is corrupted, no external barriers can prevent them from committing immoral actions

We hope that with the help of numerous government bodies created to combat corruption, there will be a change in the views and the consciousness of citizens about corruption.