The launch of the High Anti-Corruption Court (HACC) on September 5, 2019, marked a milestone for Ukraine in its fight against corruption at a time when the country continues to struggle to develop an independent, accountable, and transparent judiciary that is respected by the public. Formation of the HACC was driven by public demand and civil society advocacy. It was the outcome of a series of interventions, including studying lessons learned in other jurisdictions that have set up anti-corruption courts; building consensus among a broad group of stakeholders from the government, judiciary, and civil society; coordinating international donor assistance; and drafting the legal framework to establish the HACC.
This process answered key policy questions related to design choices, including the court’s size, place in the judicial hierarchy, mechanisms for selection and removal of judges, scope of jurisdiction, trial and appellate procedures, and relationship with anti-corruption agencies. But the adoption of legislation is merely the first step in the process of establishing an anti-corruption court that can function effectively and meet high public expectations.
Selecting and preparing judges to take the bench
Subsequent actions to make the court fully operational begin with the selection and preparation of competent judges. The judicial selection process should be guided by principles of transparency, objectivity, and fairness, and selection of judges can be aided by an international panel of experts, as was the case with the HACC. Orientation programming and ongoing professional development are essential to the formation of effective, independent, and impartial judges for specialised courts. The National School of Judges of Ukraine provided support for HACC judges at every step, from assessment of training needs to implementation and evaluation of the training program, with assistance from the international donor community.
Developing administrative and organisational structures
Judicial administration enables courts to fairly, expeditiously, and economically handle disputes brought to them for resolution. It guides the court’s structure and case processing in line with the rule of law, equal protection, and due process. The roles of the chief judge and deputy chief judge as court leaders are critical. Key qualities that were identified by HACC judges in electing their leadership included the ability to communicate and listen well, in-depth knowledge of criminal law, and an understanding of how to manage anti-corruption cases. These qualities enable the chief and deputy chief to provide fellow judges with substantive guidance.
Adequate courthouse facilities are necessary for the effective administration of justice. This includes courtrooms, judicial chambers, and office space for court staff, arranged so as to allow separate circulation patterns for the public, defendants (particularly those in detention), and court personnel.
Given the nature of high-profile corruption cases, security is essential. As highlighted in the National Center for State Courts Court Security Resource Guide and the Conference of Chief Justices Court Security Handbook, every judge, judicial employee, defendant, and court visitor must be protected from threats. This requires an extra level of security measures for personnel and physical premises, as well as cybersecurity.
Automation can improve the efficiency and effectiveness of court operations and promote transparency in judicial proceedings, as underlined in USAID’s Designing and Implementing Court Automation Projects. This is especially important for anti-corruption courts, which need to model clear, transparent, and clean processes. A complete court IT infrastructure requires hardware, software, and installation, as well as training and support for users.
Public outreach and education, including through the media, are central to successful court operations that build public trust. This requires development of communications strategies and plans, particularly for high-profile cases involving well-known defendants. Judge-speakers play a central role in communicating with the media about highly publicised cases and discussing the court’s activities that are of interest to the legal community or general public.
Recruiting, hiring, and onboarding court personnel
The unique caseload of the HACC presents specific challenges related to staff that other courts do not routinely face. This requires a different approach to staffing, along with investment in additional professional capacity building. Staff must have the necessary skills to provide security for whistle-blowers, informants, witnesses, and victims; oversee electronic/digital evidence management and control; use technology to present audiovisual and electronic evidence in court hearings; and conduct court media, information, and public outreach services. Also important is the competitive selection of court staff with integrity.
Evaluating court performance
Assessing a court’s performance is critical to building public trust and requires a holistic approach that covers access, efficiency, fairness, and user satisfaction. As a central institution in Ukraine’s anti-corruption infrastructure and a pillar of anti-corruption reform, the HACC faces public demands that are much higher than those for any other first instance or appellate court. In general, the public expects timely, efficient, and fair adjudication of high-profile corruption cases. Published performance reports detailing the number and types of corruption cases handled, decisions on convictions or acquittals, and sanctions imposed show that the HACC has made significant progress during its first 16 months of operations. This is reflected in civil society monitoring conducted by Transparency International Ukraine.
Establishment of a fully functional High Anti-Corruption Court advanced the fight against corruption in Ukraine. There are a number of serious threats facing the court, including a recent unfavourable decision of the Constitutional Court of Ukraine and another pending filing that challenges the constitutionality of the HACC itself. Nonetheless, the successful launch of the HACC demonstrates that obstacles can be overcome through coordinated actions, making Ukraine’s experience of interest to other countries considering setting up similar courts. It also shows that a successful launch requires setting and meeting clear objectives, from selecting qualified judges with integrity to creating the physical and administrative environment in which the court can flourish.