On Feb. 5, lawmakers started collecting signatures to dismiss Artem Sytnyk, head of the National Anti-Corruption Bureau of Ukraine, or NABU, from office. Until the end of that week, 216 lawmakers had already supported this sham process by signing the draft resolution for Sytnyk’s dismissal. This is not the first time parliamentarians threaten the independence of the NABU – we have already seen several attempts during the last years. This time, the timing in the Verkhovna Rada, Ukraine’s parliament, is also not accidental. The names of those pushing it forward are not surprising either.
Billionaire oligarch Igor Kolomoisky wants to get either PrivatBank back or at least considerable compensation. He doesn’t want fair justice in the case of PrivatBank fraud, assessed by Kroll as amounting to $5.5 billion. However, a few obstacles stand in this way: an upcoming deal between Ukraine and the International Monetary Fund and a real risk of effective criminal prosecution. The NABU finally took over all existing criminal proceedings into Privatbank fraud in November 2019.
Therefore, getting rid of Sytnyk in a rude and unlawful manner would not only undermine the bureau’s independence, but also violate Ukraine’s international commitments given to the IMF, the European Union, the United States and others. In other words, it would kill two birds with one stone.
Legal grounds to dismiss NABU chief
The NABU’s independence is a cornerstone of Ukraine’s commitments to the EU within the Visa Liberalization Action Plan, as well as financial programs such as the MFA and State Building Contract. It was also a conditionality of the IMF loan program. Special procedure of dismissal with limited competence of the parliament or any other state authority to remove the NABU’s head is a part of the guarantee for the NABU’s independence. The procedure is exclusively foreseen by the Law on “the National Anti-corruption Bureau of Ukraine” (NABU law), which sets an exhaustive list of 13 grounds for the dismissal. The parliament can dismiss the director after the appeal of not less than 150 MPs only upon 7 out of 13 grounds, which are:
– enacted guilty verdict in a criminal proceeding;
– holding citizenship of another country;
– termination of Ukrainian citizenship or permanent residence outside of Ukraine;
– court decision on illegal dual office holding;
– negative audit report on ineffective work as head of the NABU;
– failure to submit an annual asset declaration;
– debt on alimony payments for more than 12 months.
Why MPs’ justifications are misleading
For almost a week after the registration, the text of the draft resolution has not been available on the Rada website. Informal talks to some MPs showed they did not dig deeply into the subject, nor did they try to understand what is the rationale behind the initiative. They admitted they had not seen the text of the draft resolution and did not know which grounds for dismissal it stated when they signed the document.
However, some MPs do try to justify the current attempts to illegally dismiss NABU director and claim the following grounds: inclusion of Sytnyk in the registry of corrupt officials for an administrative offense, violation of labor law or legislation on civil service, and disciplinary proceedings.
The application of these grounds in Sytnyk’s case will violate the law because:
1) the decision to include the NABU’s head in the registry of corrupt officials for an administrative offense was based on the ruling of the Rivne Appeal Court as of Dec. 17, 2019, as part of an administrative case. He was brought to administrative liability only. Legally, the decision of Rivne Appeal Court has the same power as, for instance, a court decision to find a person for overspeeding, which is not a guilty verdict in a criminal case at all.
The decision itself is very dubious. It is solely based on the testimony of one witness who claimed that he was the one who paid Hr. 25,000, or $1,000, for Sytnyk’s vacation without providing any other convincing evidence. The court considered this amount as an undue present. This witness is an employee for a company belonging to Oleg Bakhmatiuk, who is currently suspected by the NABU of embezzlement of Hr 1.2 billion. The case was investigated by the National Police, and one of the judges who made the decision is also investigated by the National Police for bribery. Sytnyk will appeal the decision at the European Court of Human Rights.
2) the Code of Labor Laws and the Law of Ukraine “On Civil Service” apply to NABU employees (including the head) only in the part that does not contradict the law on the NABU;
3) The NABU’s chief is exempted from dismissal on the ground of disciplinary proceedings envisaged by article 65 of the Law “On Corruption Prevention”. Article 28 of the NABU Law prescribes that disciplinary proceedings against NABU employees (including the NABU’s head) are exclusively regulated by the NABU Law.
History repeats itself
Kolomoisky is not the first one who’s sick and tired of NABU. However, this time much more is at stake.
The draft law No 2656 has been registered in parliament. It is aimed at extending the exhaustive list of the grounds for dismissal by including administrative charges. Poroshenko Bloc lawmaker Oleksiy Honcharenko submitted it right after Sytnyk was found guilty of an administrative offense. Therefore, even if today’s blatantly illegal attempt to remove Sytnyk will eventually fail due to the harsh response by Ukrainians and the international community, we still need to watch whether lawmakers don’t try to get rid of him in a more “semi-legal” way.
We have seen this before. In December 2017, the National Agency for Preventing Corruption accused Sytnyk of an administrative offense based on the far-fetched accusation that he used a lawyer employed by the NABU to protect his interests. At that time, lawmakers also tried to amend the NABU law overnight to include administrative liability as a ground for his dismissal. The attack was eventually stopped by the coordinated response of civil society and international partners.
In addition, last week’s attempt of dismissal coincided with Interior Minister Arsen Avakov’s public attacks at Sytnyk in a series of tweets. Similarly, in December 2017, former Prosecutor General Yuriy Lutsenko sabotaged a covert NABU operation aimed at disclosing the scheme of the sale of Ukrainian citizenship and accused Sytnyk of foreign interference in Ukrainian relations.
Conclusions
Every attempt of encroachment on the NABU’s independence and efficiency should meet a clear reaction. This does not mean lawmakers do not have the authority to question the efficiency of the activity of any institution and its management, including the NABU. However, if they indeed want to check the NABU’s performance, the right way to move forward will be to carry out an audit – unbiassed and impartial, non-political, with the participation of professionals of high integrity and rich international experience of conducting similar checks abroad. Draft law No 2714 has been registered in the Rada to improve auditing procedures and has to be adopted as soon as possible.
If lawmakers improve the auditing provisions, this will be a sign to everybody of their willingness to raise the quality of the institution’s performance. However, if they pursue with the blatantly illegal resolution or amend the list of grounds to allow dismissing the NABU’s head using any other nonsensical pretext – they will show they only care about oligarchs or self-protection from effective prosecution.
The president, the speaker of the Rada, and the lawmakers will be held responsible for the choice they make.
