Kyiv Court of Appeal to decide fate of USD 5 mln bribe case contrary to CPC

The Supreme Court has ruled it is the Kyiv Court of Appeal and not the High Anti-Corruption Court that has to decide the fate of the case regarding an attempt to offer USD 5 mln in bribe to the heads of NABU and SAPO. The decision was made by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation of the Supreme Court on March 26, 2021 (the full text of the decision will be announced on March 30).

The National Bureau believes that such a decision of the Supreme Court actually legitimizes the violation of Ukraine's Criminal Procedure Code which clearly outlines NABU and SAPO's exclusive jurisdiction in such criminal proceedings.

The National Bureau also believes there is a risk that in the future such an approach of the Supreme Court may affect the fair administration of justice in NABU and SAPO cases.

As reported, the First Deputy Head of the State Tax Service in Kyiv, a top manager of a group of companies affiliated with the former Minister of Ecology under President Yanukovych, and his trustee offered a record USD 5 million cash bribe to persuade NABU and SAPO to close criminal proceedings involving the former Ecology Minister. All three and the abovementioned minister were notified of suspicion last summer while the probe was completed on December 2, 2020, and the case materials were disclosed.

Since then, the lawyers of the suspects have not stopped trying to change the jurisdiction in the criminal proceedings. On December 24, 2020, the Pechersky District Court, stealthily, without involving the SAPO Prosecutors, issued a decision ordering the Prosecutor General to transfer the case from NABU to another pre-trial investigation agency. This decision was further challenged by the SAPO Prosecutors at the Appeal Chamber of the High Anti-Corruption Court. However, a lawyer of one of the suspects appealed to the Supreme Court which in its turn decided that the case's fate should be decided by the Kyiv Court of Appeal and not the HACC Appeal Chamber.

It is worth noting that this is not the first time that the Supreme Court has considered appeals on similar issues. At least seven times during 2019-2021 it ruled that the issues under NABU and SAPO jurisdiction should be decided according to the CPC by a panel of five judges of the HACC Appeal Chamber.

However, to our surprise, the Supreme Court has ruled differently this time like it already did before in the infamous KDAC tapes case.

The current situation raises grave concern, as it regards the crimes involving top officials. Any decisions made in a non-transparent, contradictory manner will be perceived by society as an attempt to protect those in power, which in turn could negatively affect the reputation of the judiciary.