In a new article by Pavlo Otvinovskyi and Olha Shapovalova, we examine how incorrect determination of investigative jurisdiction affects which court ultimately hears a case, why this is especially critical in corruption proceedings, and the position adopted by the High Anti-Corruption Court (HACC) and its Appellate Chamber.

Special contribution for Yurydychna Praktyka newspaper.

Relevance of the Issue

Current criminal procedure legislation sets out relatively clear rules on investigative jurisdiction and court competence. Yet in practice, breaches are frequent. Such violations directly affect the determination of which court has subject-matter jurisdiction. Are these merely unfortunate mistakes — or conscious attempts to manipulate outcomes by steering cases towards certain investigative bodies and courts? And what solutions might exist?

Investigative jurisdiction refers to the criteria that determine which pre-trial investigative body has competence over a particular case. Put simply, it identifies which body has the statutory authority to investigate. From the very outset of an investigation, correctly establishing jurisdiction is crucial: if an inappropriate body conducts the investigation, its findings can be nullified. Violating investigative jurisdiction represents a serious breach of criminal procedure, the observance of which the state is obliged to guarantee.

Why Jurisdiction Errors Occur

Breaches may arise from genuine mistakes in interpreting the boundaries of competence — but also from deliberate efforts to channel a case toward a “friendly” investigative authority or court. This risk is especially acute in corruption cases, where both the investigating body and the court have decisive influence on the case’s trajectory.

Competence of NABU and HACC: Statutory Framework

The powers of Ukraine’s National Anti-Corruption Bureau (NABU) and the High Anti-Corruption Court (HACC) are defined by the Criminal Procedure Code (CPC) and the Criminal Code (CC).

Article 216(5) CPC: NABU detectives must conduct pre-trial investigations into certain corruption offences, including those specified in Articles 206-2, 209, 211, 366-2 and 366-3 CC, as well as those listed in the note to Article 45 CC, provided statutory grounds are met.

Article 33-1 CPC: Such cases fall under the exclusive jurisdiction of the HACC, which conducts trials following NABU investigations. HACC’s investigating judges also exercise procedural oversight over the rights and lawful interests of participants in these cases.

Article 33-1(3) CPC: Explicitly prohibits other courts from hearing criminal proceedings within HACC’s jurisdiction.

HACC’s Approach to Jurisdiction: Problems in Application

Despite this framework, practice reveals significant gaps. Even the presence of a “special subject” — for instance, a public official whose case should automatically fall under HACC’s remit — does not always ensure proper jurisdiction. Investigative bodies often ignore statutory requirements, leading to incorrect court assignments. Such failures undermine the credibility of anti-corruption justice and erode public trust in the system.

A Telling Example: Case No. 991/5465/25

In this case, defence counsel challenged the inaction of investigators from the State Bureau of Investigations (SBI) for failing to return property temporarily seized during searches. The investigating judge at the HACC dismissed the complaint and returned it to the lawyer, reasoning that the case was being investigated by the SBI, not NABU, and therefore was allegedly outside HACC’s jurisdiction.

This interpretation rested on a narrow view: that the sole criterion for HACC jurisdiction is whether NABU is the investigating body. In a ruling dated 9 June 2025, the judge justified this logic as follows:

“Any other interpretation of this provision renders mention of Part 5, Article 216 of the CPC nugatory and creates legal uncertainty, since it would enable investigative bodies other than NABU to arbitrarily submit any criminal proceedings to the HACC … which would hinder effective administration of justice by HACC.”

In our view, this approach is legally dubious and contradicts both the letter and spirit of the law. It overlooks the systemic linkage between Article 216 CPC (NABU’s investigative jurisdiction) and Article 33-1 CPC (HACC’s subject-matter jurisdiction). HACC competence is determined not simply by which body investigates, but by a combination of factors — the nature of the offence and the status of the alleged offender. The law ties HACC’s jurisdiction to NABU’s investigations only when the statutory grounds in paragraphs 1–3 of Part 5, Article 216 CPC are satisfied, not merely on the basis of formal titles.

Thus, the position adopted by the investigating judge at first instance is not only mistaken but also dangerous: reducing jurisdiction to a purely mechanical test (“NABU only”) risks legal uncertainty and undermines the proper functioning of anti-corruption justice.

HACC Appellate Chamber’s Position: Substance Over Form

The Appellate Chamber of the HACC in case No. 991/5465/25 took the opposite view. The appeal was upheld, and the case was referred back to the HACC for a new trial.

The Appellate Chamber demonstrated a substantive rather than formalistic approach to jurisdiction. It underlined that a suspect’s right to defence arises at the moment the pre-trial investigation actually begins, even if formal notice of suspicion has not yet been served. From that moment, individuals may exercise the rights of a suspect, including judicial oversight of investigative bodies’ actions or omissions.

The Chamber focused on both subject-matter and personal criteria. Here, the investigation concerned a “special subject” — a former Member of Parliament and later city council deputy. Although no formal suspicion had been served, the factual circumstances pointed to corruption charges under Articles 209 and 366-2 CC.

On that basis, the Chamber concluded that the conditions in subparagraphs 1 and 4 of paragraph 1, Part 5, Article 216 CPC were satisfied. This meant that NABU had investigative jurisdiction and, consequently, HACC had exclusive subject-matter jurisdiction.

Most importantly, the Chamber held that a corruption case involving a “special subject” remains under HACC’s jurisdiction, even if investigated by another body (such as the SBI).

Therefore, the Appellate Chamber rejected the formal approach taken by the first-instance investigating judge, reaffirming the legislative logic that links investigative jurisdiction under NABU with subject-matter jurisdiction under HACC.

In Conclusion

In our opinion, the legal position adopted by the HACC Appellate Chamber is of paramount importance for developing a unified and consistent judicial practice in anti-corruption proceedings.

Thanks to this position, substance is effectively given priority over form: when establishing jurisdiction, the guiding factor should not be solely the name of the body conducting the investigation, but also the essence of the criminal offence and the status of the individual accused, in accordance with Article 33-1 CPC.

The significance of this judgment also lies in enabling effective judicial oversight at the pre-trial stage by HACC investigating judges, which is crucial for protecting the rights and freedoms of those subject to pre-trial investigations.

In summary: ignoring or formally interpreting the criteria for investigative jurisdiction and subject-matter jurisdiction risks legal uncertainty, erodes the functional autonomy of both HACC and NABU, and may give rise to breaches of the right to a fair trial.