HACC's political dependence on NABU and SAPO: why the anti-corruption court is losing credibility

Recently, there have been increasingly frequent allegations that the High Anti-Corruption Court (HACC) is dependent on the National Anti-Corruption Bureau of Ukraine (NABU) and the Specialized Anti-Corruption Prosecutor's Office (SAPO). This raises concerns among the public, in particular in human rights circles, where such dependence is sometimes seen as a threat to the independence of the judiciary. UNN investigated the possible reasons for this phenomenon and its impact on the HACC's reputation.

Common interest

The first likely reason for the dependence is common interest. NABU, SAPO, and HACC were created to fight corruption and work in close cooperation, forming the so-called anti-corruption triad. However, in democratic states governed by the rule of law, the principle of separation of powers is fundamental, including an independent judiciary. Such systems, where the functions of investigation, prosecution and court are combined, have been seen in history, in particular in the Soviet Union. The NKVD troikas did not care about the evidence base; a characteristic feature of their cases was a minimum of documents with the inscription “Top Secret. Keep forever”.

This concentration of power then led to a loss of objectivity and fairness.

Pressure from activists

The second factor is pressure from anti-corruption activists. Sometimes, when the HACC rules in favor of the accused, judges face criticism from activists who point out flaws in the case review process. Some human rights activists consider this interference in the work of the court, which contradicts the principle of independence of justice. After all, when activists say how judges should not act , they are actually telling them how they should act. 

Influence of international donors

The third reason is the influence of international donors. While state agencies should be funded exclusively from the Ukrainian budget, anti-corruption institutions also receive technical support from international partners. This can put additional pressure on the HACC, as international institutions often set specific performance requirements for anti-corruption agencies.

The process of electing judges

The fourth factor is the procedure for selecting HACC judges. This process involves international partners and anti-corruption institutions that are actively involved in interviews and vetting of candidates. This may affect the independence of judges who make decisions in cases investigated by the NABU and the SAPO.

Financial dependence

Another aspect is financial dependence. Since a significant part of the funding for the NABU, SAPO and HACC is provided by international donors, this may encourage coherence between the agencies. Reports from donor organizations sometimes contain performance requirements, which can sometimes lead to an emphasis on indicators rather than quality of investigations.

Psychological pressure

The sixth factor is psychological pressure from the NABU and the SAPO. Sometimes detectives and prosecutors declare the suspects' alleged guilt before the trial is over, which can influence public opinion and, ultimately, judges. The principle of presumption of innocence requires avoiding such assessments before a verdict is passed.

The independence of the High Anti-Corruption Court (HACC) from the NABU and the SAPO is critical to ensuring fair justice and respect for the rule of law. An independent HACC should act as a counterweight to detectives and prosecutors, ensuring a balance in the process of reviewing anti-corruption cases. Public trust in the judiciary is the foundation of democratic institutions, and the perception of the HACC as an independent body is essential to preserve its legitimacy.

Currently, the majority of Ukrainians do not trust the NABU, as evidenced by extreme opinion polls. Following the NABU, distrust and crisis in the system may become the achievement of the HACC and international partners who continue to support discredited agencies.

Recall

The Shadow Report to Section 23 “Justice and Fundamental Rights” of the European Commission's 2023 Report on Ukraine statesthat HACC judges have repeatedly recorded violations of the principle of presumption of innocence by NABU detectives who, in public comments and interviews, have actually “appointed” the defendants guilty. However, despite the cases of violations recorded by judges, there was no public reaction from the NABU. In addition, the NABU's Internal Control Department also failed to take any disciplinary action, leaving such cases unaddressed. Such communication, which undermines the foundations of justice, creates prejudice in society and leads to false conclusions even before a final verdict is reached by the court.

Commenting on this trend, Yevhen Zakharov, director of the Kharkiv Human Rights Group , notedthat by ignoring the problem of violation of the presumption of innocence by the NABU, the High Anti-Corruption Court is also losing its independence and objectivity. In his opinion, instead of being independent of the NABU and the SAPO, the HACC is increasingly playing along with them, distorting the principles of justice.  A dependent court is even worse than a corrupt one, the human rights activist emphasizes.

Due to their dependence on anti-corruption activists, HACC judges are forced to accept even such absurd evidence as a “pen-drawn” copy of a Soviet Union document, the original of which no one has seen. Read more here.