The National Agency for Preventing Corruption (NAPC), set up in 2015, has been mired in corruption scandals for years.
The agency has failed in its mission of checking officials’ electronic asset declarations and has been seen as a loyal tool of the authorities.
As a result, in October the Rada approved re-launching the agency and replacing its leadership. The new leadership was chosen in December with the help of foreign experts.
The new head of the agency, Oleksandr Novikov, appears to be more transparent and open to civil society and is more willing to cooperate with foreign partners.
So far, he has delivered mixed results.
It is still not clear if the new leadership will turn the agency into an effective, incorruptible and independent instrument of the rule of law.
Kateryna Butko, head of the NAPC’s civic oversight council, is optimistic about the agency’s activities.
“It has changed because some work has begun,” Butko said. “Reports (on administrative cases) are being sent, although I’m sure it can be done better and more actively.”
But critics point to several controversial decisions that they believe cast doubt on the new agency’s integrity and independence.
“Nothing has changed,” Hanna Solomatina, a former top official and whistleblower at the agency, told the Kyiv Post. “The NAPC has been re-launched but its essence has remained the same. They keep working for the Presidential Administration.”
Biography
Novikov has been working as a prosecutor since 2004. He had been little-known and kept a low profile before his appointment as head of the NAPC.
His supporters pointed to his good performance at the interview during the competition for the job, Novikov’s investigations into corruption involving state school examinations and a fraud case involving a construction project run by businessman Anatoly Voitsekhovsky.
Novikov used to work under the supervision of Volodymyr Bedrikivsky, a controversial top prosecutor who has been accused of corruption and denied the accusations.
Novikov competed with some candidates that his critics say have stronger anti-corruption credentials. These include Dmytro Bulakh, head of the Kharkiv Anti-Corruption Center, legal scholar Mykola Khavronyuk and Solomatina, a whistleblower who exposed alleged corruption at the NAPC in 2017.
Lawyer Vitaly Tytych, ex-coordinator of judicial watchdog Public Integrity Council, argued that it is a high risk to appoint a person from one of Ukraine’s most corrupt institutions – the prosecution service – as opposed to anti-corruption activists and legal scholars.
Statistics
The overall statistics for the number of violations identified by the agency under Novikov is not better than that for 2019 so far.
In 2019 the agency initiated 140 criminal cases and 22 administrative cases against officials who provided unreliable data in their disclosures, compared with 69 criminal cases in January through May 2020.
Last year the NAPC also initiated 257 criminal cases against those who failed to file declarations, compared with 174 such cases in January through May 2020.
Additionally, in 2019 the NAPC initiated 5,000 administrative cases into failure to file declarations in a timely fashion, compared with 1,256 such cases in January through May 2020.
Butko, head of the NAPC’s civic oversight council, said that the agency should focus on targeting top officials rather than imitate activity by going after low-level bureaucrats.
“They should focus on officials prone to corruption – judges, prosecutors and lawmakers,” she said. “If they focus on top officials, this will be an important indicator.”
Since Jan. 1, the NAPC has initiated administrative cases against nine members of parliament, a former Verkhovna Rada member, five lower-level judges, one court chairman, a member of the Central Election Commission, two deputy ministers, three former deputy ministers, a former head of the Constitutional Court, a former head of the Asset Recovery Management Agency, the head of a regional legislature and the head of the State Geology and Mineral Resources Service, according to the agency’s statistics.
The NAPC has also initiated a criminal case against one incumbent Verkhovna Rada member and criminal cases against eight former members of parliament.
Hanna Solomatina, ex-head of the National Agency for Preventing Corruption’s department for financial monitoring (C) attends a meeting of parliament’s anti-corruption committee on Nov. 15, 2017. (Volodymyr Petrov)
Oman trip
One of the tests for the new NAPC leadership’s independence came after questions arose regarding President Volodymyr Zelensky’s visit to Oman in January. The visit prompted a controversy when Radio Free Europe/Radio Liberty reported a top Russian official visited Oman at the same time and could have met Zelensky or one of his subordinates.
The trip was mysterious. It wasn’t announced until a photo surfaced online of Zelensky with his family in a resort hotel in the Middle Eastern country. After that, Zelensky’s office said it was a private trip, but that it included meetings with local officials.
Zelensky did not declare any money spent on the secret visit.
The President’s Office claimed that the state of Oman had paid for the airline ticket from Oman to Ukraine. Zelensky’s office also claimed that his wife paid for their stay at the hotel in Oman.
Zelensky’s office argued that the president was not required to declare this money due to these reasons.
This also triggered a controversy because it is not clear why the government of Oman would have paid for a foreign official’s vacation. It is still not clear what legal grounds Zelensky had for accepting the payment if this was not a business trip and why he did not declare the payment.
The President’s Office did not respond to requests for comment and did not provide documents confirming that Oman paid for the trip or on the legal grounds for Zelensky’s stay there.
In April Novikov told RBC Ukraine the NAPC had found no violations in Zelensky’s trip. However, several months later the NAPC’s press office told the Kyiv Post it was still finding out the details of the case and waiting for additional documents.
“The agency is whitewashing the president,” Solomatina said, although the NAPC denied such accusations.
Bond affair
On July 7, Zelensky also informed the NAPC that he had failed to declare Hr 5.1 million in income from government bonds and a purchase of Hr 5.2 million worth of bonds in 2019.
The NAPC said it would send materials on Zelensky’s alleged administrative infraction to a court. If the president is found guilty, he will be included in the official register of corrupt officials.
The agency said that “equality before the law is a basic principle of the Constitution of Ukraine” and that “all citizens must follow Ukrainian laws regardless of their position, wealth and social status.”
Solomatina dismissed the case as a publicity stunt by Zelensky and the NAPC. She said a court was likely to acquit Zelensky because the agency violated the procedure by having Novikov, as opposed to an authorized NAPC official in charge of the case, submit the administrative case report to Zelensky. The agency could not immediately comment on the accusation.
Conflict of interest
The NAPC’s ability to oppose the President’s Office and its appointees also came into question during a controversy surrounding Oleksandr Babikov, a former lawyer of ex-President Viktor Yanukovych.
In April the agency concluded that Babikov has a legal right to work at the State Investigation Bureau and currently has no conflict of interest. The bureau is pursuing cases against Babikov’s former client Yanukovych.
The NAPC said that Babikov, the first deputy head of the bureau, would only have a conflict of interest were he to become the acting head of the State Investigation Bureau.
However, the lawyers for EuroMaidan Revolution protesters and Sergii Gorbatuk, the former top investigator for EuroMaidan cases, disagreed, arguing that Babikov currently has a conflict of interest.
Solomatina case
The agency is also tasked under the law with protecting whistleblowers. The NAPC told the Kyiv Post it is helping whistleblowers in 73 court cases.
One of Ukraine’s most famous whistleblowers is Solomatina, a former NAPC official who said in 2017 that the agency was involved in large-scale corruption and was completely controlled by the Presidential Administration.
She provided documents supporting her accusations, and a criminal case was opened. Solomatina’s revelations helped to trigger the eventual re-launch of the agency.
Solomatina has been suing to be reinstated in her NAPC job and was hoping that the agency’s new leadership would give the job back to her as a sign of good will. However, this has not happened.
First, the NAPC told the Kyiv Post that Solomatina had not been reinstated because the unit where she used to work had been liquidated.
Later the NAPC said that she cannot get her job back because she had been affiliated with ex-Georgian President Mikheil Saakashvili’s Movement of New Forces party.
Eventually, the NAPC said that Solomatina could not be reinstated because no court had ordered her reinstatement.
Solomatina, who says the NAPC has failed to help her as a whistleblower, sees these reasons as mere excuses. She argues that the agency is afraid of her because of her anti-corruption credentials and wants to continue business as usual.
The NAPC’s new leadership said that it had audited the agency’s previous leadership, which was lambasted by Solomatina, and found violations. As a result, 68 NAPC officials were fired or resigned. Tytych finds it bizarre, however, that no criminal cases have been opened into violations by the previous leadership involving asset declarations.
Leros case
Another test for the NAPC’s integrity came when Geo Leros, a lawmaker from Zelensky’s Servant of the People party, in March published videos that showed Zelensky’s Chief of Staff Andriy Yermak’s brother Denys considering candidates for government jobs and discussing receiving money from some of them.
In April Dmytro Shtanko, Denys Yermak’s partner in the alleged graft scheme, said that Andriy Yermak himself was implicated in the scheme and received money as well.
The Yermak brothers did not deny the authenticity of the videos, but Denys Yermak claimed they were taken out of context. Andriy Yermak also dismissed the accusations and lashed out at Leros, promising to sue him.
The NAPC said it had explained to Leros information on his rights. The NAPC added, however, that it cannot represent Leros in court.
The agency’s critics argue that the agency could have done more to protect Leros and accuse it of being reluctant to do so due to fear of the President’s Office. Tytych and Solomatina argue that the law does not prevent the NAPC from representing Leros in court, for example.
Golnyk case
One of Ukraine’s most high-profile whistleblowers, Judge Larysa Golnyk, published in 2015 video footage featuring then Poltava Mayor Oleksandr Mamai pressuring her to close a case against him and his former deputy Dmytro Trikhna unsuccessfully trying to bribe her in exchange for closing it.
Golnyk told the Kyiv Post that there had not been much change in protection provided to her by the old NAPC leadership and the new one. She said she had been represented by the NAPC in court both then and now.
She said that the NAPC had so far failed to rule in a conflict of interest case involving alleged pressure on her by Oleksandr Strukov, former chairman of her court.
Golnyk added, however, that the new law on whistleblowers passed in 2019 gives the NAPC few opportunities for defending whistleblowers and changes little.
