The new reality brought by the full-scale invasion of russia have complicated the investigation and trial of NABU’s cases

Of all indictments sent to court in the first half of 2022, 75 percent fell on the period after February 24. Since the beginning of the war, the Detectives of the National Bureau completed 17 investigations and disclosed the case files to the defense for review.

However, NABU and SAPO faced serious obstacles caused by hostilities: the lack of access to the Unified Register of Pretrial Investigations and the Unified Judicial Information and Telecommunication System; the impossibility to perform procedural actions within the time limits stipulated by law, complete the pretrial investigation and issue indictments for the trial to begin.

It was not until April-May that some of the issues were tackled after the changes to the Criminal Procedure Code of Ukraine, which partially regulated the peculiarities of criminal process under martial law, came into force. At the same time, a number of factors caused by the intensification of hostilities continue to affect the investigations.

The threat to life forced many participants in the process to change their place of residence and move to central and western Ukraine, as well as abroad. This, in turn, affected attendance of witnesses, claimants, and defendants. Also, taking into account the peculiarities of the legislation and the state of connection, it was often difficult to carry out procedural actions in the videoconference mode. For example, the State Geocadastre case involves more than 30 witnesses most of them staying away from their permanent place of residence, some of them being out of touch. All this results in constant postponements of court sessions.

In addition, considering the current legislation and the practice of judicial proceedings, the use of interrogation protocols of persons who are currently recognized as missing or dead comes as another great challenge. This sometimes makes it impossible to get a guilty verdict in cases.

Apart from objective reasons, the defense tends to use the war as a pretext to delay the consideration of cases in court or make the necessary procedural actions impossible. For example, pretrial hearings in the Derzhinformiust case were disrupted due to the non-appearance of the defendants, who blamed such behavior on hostilities in Kyiv in May 2022. Later, they were declared wanted for hiding from the court.

Procedural abuses by the defense ending in postponements of court hearings and non-appearance over an alleged threat to life, complicated logistics between regions of Ukraine, and air alert are systemic. The lawyers believe the reasons are enough to ignore the implementation of procedural duties. For example, in the case against two lawyers who incited a person to give an undue advantage to a judge of the Kyiv District Administrative Court, most of the court hearings were postponed due to the non-appearance of their defenders. They had left their places of residence and would not arrive at the court.

Sometimes, court decisions cannot take effect because of the suspension of court proceedings in the appellate instance over the mobilization of the accused into the ranks of the Armed Forces.

Investigating corruption schemes requires expert examinations. Sometimes we are talking about dozens of such studies within the framework of a single case. Without expert opinions, it is impossible to establish damages and incriminate officials for the damage caused to the state. However, due to the austerity regime introduced over russia’s military aggression, no funds are allocated to pay for services of private expert institutions. This jeopardizes the prosecution of those falling within NABU and SAPO’s jurisdiction. The state-owned expert institutions does not solve this problem, because they are overloaded with requests: sometimes it takes a year to wait for your turn. This affects the pretrial investigation and sometimes completely nullifies its expediency. In addition, not all state institutions can resist the influence of defendants.

A similar situation occurred around the translation of documents sent and received within the framework of international legal assistance. It is no secret that the majority of Ukraine-based corruption schemes involve syphoning off funds and their legalizing abroad. Without the help of the competent authorities of other states, it is impossible to track funds and the link to scheme participants or ensure their seizure. It also makes it impossible to return the embezzled assets to Ukraine. To solve this problem, NABU turned to the Cabinet of Ministers.

NABU and SAPO have rather limited personnel resource for investigating top corruption: 240 Detectives and 40 Prosecutors. After February 24, this resource further decreased: a quarter of SAPO Prosecutors joined the ranks of the Armed Forces, about a fifth of NABU Detectives were mobilized or joined projects with the Security Service and the Defense Intelligence of Ukraine. Meanwhile, the anti-corruption workload did not decrease. This created a new challenge and prompted to find ways to improve the effectiveness of the agencies.

With the full-scale aggression of the russian federation, every law enforcement agency in Ukraine faced the issue of preserving the materials of criminal proceedings and investigative cases. While the National Bureau managed to quickly take the files away from the capital, colleagues from other law enforcement agencies had to destroy them in some cases.

Under such conditions, the eCase MS is able to ensure the preservation of case files. Moreover, the materials are stored electronically with the use of backup tools, so the transfer of the entire array of criminal proceedings can take a matter of hours.

NABU launched the eCase MS on Dec. 16, 2021. However, its implementation was interrupted by the war — at 5 a.m. on February 24, the server equipment was dismantled and relocated to a safe place. At that time, the eCase MS contained information on 52 criminal proceedings. It was only at the beginning of June that the eCase MS setup process, as well as the connection of HACC judges and integration with the Unified Register of Pretrial Investigations were resumed with the aim to be completed by the end of the year. The fullfledged operation of the system will be resumed on August 1.