Ukrainian and European experts have analyzed what standards of protection should be present in anti-corruption proceedings

The fight against corruption is currently one of the priorities of law-enforcement authorities of Ukraine and, at the same time, a basic requirement of our international partners. On the other hand, corruption is a transborder phenomenon, and countering it also has a transborder character. In particular, the European Criminal Bar Association (ECBA) has established a special working group on combating corruption in Europe (ACE), whose purpose is to increase the level of knowledge and awareness among practicing lawyers regarding various anti-corruption instruments, as well as procedural and other guarantees of the European Convention on Human Rights in corruption cases.

What is the contribution of Ukraine to the formation of the pan-European anti-corruption legal practice, what should the standards of protection in anti-corruption proceedings be, and how the international (European) legal community can help Ukraine in its fight against corruption — these and other questions were addressed by the “Legal Practice” to the judge-rapporteur of the Appellate Chamber of the High Anti-Corruption Court of Ukraine Andriy Nykyforov, as well as to the co-chairs of the ACE ECBA working group Amedeo Barletta and Vladimir Hrle and to the member of the ACE ECBA working group from Ukraine Olga Prosyanyuk, managing partner of AVER LEX Attorneys at law.

  • What are the main priorities of the ECBA with respect to the anti-corruption agenda in Europe? 

Amedeo Barletta (A.B.): One of the main objectives of the ECBA is to promote the administration of justice and human rights in the applicable jurisdiction of the Member States of the Council of Europe and the European Union. The ECBA is very much aware that corruption hampers the rule of law and trust in institutions, and undermines democratic institutions and EU values, including the protection of fundamental rights and freedoms.

Thus, the ECBA welcomes the EU Commission’s initiative to tackle corruption by drafting a new Directive of the European Parliament and of the Council on Combating Corruption.

  • Can you assess Ukraine’s contribution to shaping the pan-European anti-corruption legal enforcement practice? Is the impact positive (contributions to best practices) or negative (missteps)? 

A.B.: Ukraine’s position is somewhat specific and is setting a positive impact, especially due to the high influx of foreign monetary assistance, which in turn created a huge need that those funds are directed to right projects, for which efficient anti-corruption mechanisms are imperative. Ukraine has to continue to fight against corruption by building a further track record of corruption investigations and convictions. 

Andriy Nykyforov (A.N.): In recent years, Ukraine has accelerated reforms, including in the area of fighting corruption. Among the measures implemented, the establishment of the National Anti-Corruption Bureau, the Specialized Anti-Corruption Prosecutor’s Office and the High Anti-Corruption Court, as well as the strengthening of their institutional capabilities and the continuous efforts to harmonize Ukrainian anti-corruption legislation with European standards, are particularly noteworthy.

Evaluating the current results of the anti-corruption bodies and the High Anti-Corruption Court of Ukraine, it is possible to say definitively the formation of corresponding new practices, due to the high status of the subjects of criminal proceedings for corruption and the complex level of mechanisms used in corruption schemes.

Olga Prosyanyuk (O.P.): For the past two years, the attention of the world community has been focused on Ukraine as a state embodying, first and foremost, a military struggle for independence and sovereignty. In this context, internal processes, including the peculiarities and effectiveness of the state anti-corruption policy, are not going unnoticed by external observers. Although at present the priority is given to the support and development of the military sector and the strengthening of the defense capabilities, objective data indicate the necessity to accumulate one’s own efforts and to involve the international legal community in order to improve the results of the fight against corruption and further formation of the anti-corruption legal practice.

A.N.: Unfortunately, we have to note that the level of corruption in Ukraine, particularly top-level corruption, remains quite high compared to that in EU countries. At the same time, the Ukrainian experience in combating top-level corruption offenses can significantly help in the formation of relevant legal practices at the pan-European level. In my opinion, taking into account such experience should facilitate both the improvement of the EU legislative framework in the field of anti-corruption and practical measures to identify and counteract manifestations of corruption.

  • What should the standards of protection in anti-corruption proceedings be? 

Vladimir Hrle (V.H.): From our perspective, the main standards in anti-corruption proceedings are standards relating to fair trial rights and procedural safeguards. However, those standards are often not fully respected, even in EU states.

The ECBA shares the view that the fight against corruption and the protection of fundamental rights are complementary and not conflicting objectives. At the same time, implementing and enforcing the criminalization of corruption has to be carried out in full respect of fundamental rights.

O.P.: It should be recognized that the belief in Ukrainian society that the state is incapable of permanently controlling the risks of corruption and implementing more effective anti-corruption and prevention tools still exists. However, it is often mistakenly associated with a small number of convictions that result in imprisonment. In fact, the importance of the conclusion of plea agreements in cases under the jurisdiction of the National Anti-Corruption Bureau of Ukraine has increased significantly recently which, on the one hand, affects the imposition of punishment by the court, and, on the other hand, undoubtedly indicates the effectiveness of law-enforcement agencies and the improvement of defense standards in proceedings. As a matter of fact, the limited possibility of concluding a settlement and the lack of appropriate incentives for the defendants make it more difficult to comply with reasonable time limits, increase the workload of the court, aggravate the imbalance between the number of cases to be considered and the number of cases already considered, and lead to the termination of proceedings due to the expiration of the statute of limitations.

A.N.: During the administration of justice in corruption criminal proceedings, the High Anti-Corruption Court and its Appellate Chamber, as integral components of the judicial system in Ukraine, ensure fair and effective judicial proceedings by adhering to human rights standards established, in particular, by the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Constitution of Ukraine.

At the same time, the status (social, financial or political) of suspects or defendants in high-level corruption cases does not affect the scope of the rights of a person, in particular the right to protection. In addition, the nature of the proceedings (high-level corruption cases or ordinary criminal cases, which fall under the jurisdiction of local courts) does not affect the obligation to comply with relevant standards, including protection standards.

In my opinion, the observance of universally recognized principles and guarantees of human rights by the courts is the keystone of proper judicial process and public trust in national courts.

At the moment, I can confidently say that the courts, particularly the High Anti-Corruption Court and its Appellate Chamber, largely comply with the relevant guarantees and standards in the field of human rights, as established by both international instruments and national legislation.

  • What are the most common violations in anti-corruption investigations as noted by the ECHR?

V.H.: Again, from our perspective, common violations in anti-corruption investigation relate to procedural safeguards, especially on the reversal of the burden of proof, which is now often allowed by national legislations. This might prejudice the innocence of the defendants and might now be even amplified, especially through the establishment of a new EU proposed offence of enrichment through a corruption offence.

  • What significance do ECHR decisions have for anti-corruption practice? 

V.H.: Huge. We see the ECHR as a guardian of procedural fairness in anti-corruption proceedings, especially due to the new trends which tend to lower the regular procedural standards. Again, for the ECBA, implementing and enforcing the criminalization of corruption has to be carried out in full respect of fundamental rights.

  • Which judgments of the European Court of Human Rights should be noted in the context of anti-corruption practice? 

O.P.: The issue of the amount of bail in anti-corruption proceedings remains quite topical in the legal community. Increasingly, defense attorneys call for the establishment of unified, reasoned, and balanced criteria to be considered by the court when determining the amount of bail, as in the vast majority of cases the excessive and unjustified amount of the latter completely excludes the alternative of a preventive measure as detention in custody. Application by the court of bail beyond the maximum amount of it established by the criminal procedural law, attempts to justify the amount of bail solely by the severity of the crime and the amount of probable damage, while not taking into account the property and social condition of the person, which is to prosecute to criminal responsibility, other data about this person and evidence of risks may indicate a violation of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (decision in the cases of Istomina v. Ukraine, “statement No. 23312/15),” Gafa v. Malta “(“Gafà v. Malta, “statement No. 54335/14),” Mangouras v. Spain “(” Mangouras v. Spain, “application No. 12050/04).

In addition, an important place in the process of protecting the rights and interests of persons in anti-corruption proceedings (based on personal observations) is the justification of the need to comply with the general principle of legal certainty. In other words, the predictability of national legislation. Thus, a serious threat to the mentioned principle is the obviously different interpretation and application of the provisions of the criminal procedural law under the Law of Ukraine No. 2147-VIII of 3 October 2017 (in particular, part 7 of Article 217, cl. 10 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine) in relation to Article 58 of the Constitution of Ukraine, Articles 5, 8, 9 of the Criminal Procedure Code of Ukraine in various criminal proceedings, depending on the date of start of the pre-trial investigation of criminal offenses, the combination of proceedings, etc. And although the ECHR recognized that the possibility of controversial court decisions is an inseparable feature of any judicial system based on a network of courts of first instance and appellate courts with powers within their territorial jurisdiction (the decision in the case of Santos Pinto v. Portugal, “application No. 39005/04), such disagreements would obviously have to be resolved by the court of cassation.

  • In Europe, reports of corruption offences, even if not confirmed, often have reputational and political consequences, including dismissal. Is this a violation of protection standards? 

A.B.: For us the only recourse is to anticipate those possible consequences before they occur is setting-up relevant procedural safeguards and granting the presumption of innocence as a fundamental principle.  In the EU, those safeguards usually ensure that all participants to the proceedings have procedural tools that would enable them to ensure fair outcome especially in high-level political proceedings where there is a big public eye gazing on the process followed by various stakeholder interests.

  • How can the international (European) legal community assist Ukraine in fighting corruption?

O.P.: Ukraine continues to demonstrate its own interest in forming high standards for combating corruption, for which the experience of the international European community will be useful. The planning of the Anti-Corruption Strategy, the rapid dynamics of reforms, the enhancement of the role and protection of whistleblowers, the introduction of a system of electronic criminal proceedings (“eCase”) could rightly serve as examples for the formation of new standards of protection in anti-corruption proceedings. I am confident that the activities of the ACE ECBA Working Group will be of particular value in ensuring respect for rights and guarantees in anti-corruption proceedings.

A.N.: The manifestations of high-level corruption faced by anti-corruption bodies and the High Anti-Corruption Court in Ukraine are very often transnational. In this regard, joint coordination of efforts to increase the effectiveness of international legal assistance is of particular importance, especially in matters of extradition of persons suspected or accused of committing corruption crimes; the identification, freezing and recovery of proceeds/assets derived from criminal activities; verification of the legality of the sources of origin of assets, etc.

I am convinced that institutional strengthening in the European Union and in Ukraine of conditions that significantly reduce the economic attractiveness of corruption and make it impossible to hide the sources of origin of assets, as well as the legalization and further use of the proceeds of corruption, should be a factor that will have a positive influence on the level of corruption in Ukraine.

A.B.: By sharing knowledge and regular exchanges. For these purposes, the ECBA created a working group on anti-corruption and bribery in Europe (ACE).

The purpose of the ACE working group is to improve knowledge and awareness among defense practitioners of various anti-corruption instruments, and procedural and other ECHR safeguards in anti-corruption proceedings (where such safeguards are usually lower due to big interest on the part of the public in the fight against corruption, i.e. confiscation), in order to provide effective advice and representation.

V.H.: So far, the group has initiated several knowledge-sharing activities, issued nine country reports on the topic and established a European-wide network of contacts with experience in corruption cases.

We are extremely happy to see that a colleague from Ukraine recently joined ACE and are looking forward to working with Olga and other lawyers from your country!

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