The National Anti-Corruption Bureau of Ukraine has been a thorn in the side of corrupt officials since its creation in 2015.
Now the kleptocrats, many of whom are under investigation by the bureau, appear to have dealt a decisive blow to the NABU.
On Aug. 28, the Constitutional Court ruled that then-President Petro Poroshenko’s 2015 decree to appoint Artem Sytnyk as head of the bureau was unconstitutional. The court argued that the president’s authority to appoint the NABU chief is not stipulated by the Constitution.
Although the ruling does not immediately deprive Sytnyk of his job, it may lead to his dismissal in the future. Moreover, even now the ruling undermines Sytnyk’s leadership of the bureau and its work.
Anti-corruption activists and legal experts say that, if Sytnyk is dismissed, it will destroy the bureau’s independence, since he will likely be replaced by a staunch loyalist to President Volodymyr Zelensky and his allies.
“It has nothing to do with law, it’s a political decision,” Oleksandr Lemenov, head of anti-corruption watchdog StateWatch, told the Kyiv Post.
Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, told the Kyiv Post that Sytnyk’s firing would “jeopardize Ukraine’s relationship with foreign partners and the International Monetary Fund.”
Foreign reaction
In a veiled reference to the decision on the NABU, the G7 ambassadors said in a statement on Sept. 3 that they strongly supported the independence of Ukraine’s anti-corruption institutions.
“The ambassadors of the G7 countries in Ukraine underscore the need to select heads of anti-corruption institutions through transparent, merit-based and politically neutral selections processes,” they said. “Ensuring independence, integrity and strong legal status of these institutions is an important element of Ukraine’s international commitments, including as part of cooperation with the EU and continuing support from international financial institutions.”
EU Ambassador to Ukraine Matti Maasikas also said that these principles should be applied when the Verkhovna Rada appoints representatives to select a new chief anti-corruption prosecutor to replace Nazar Kholodnytsky, who resigned in August.
Anti-corruption activists have lambasted the Rada law enforcement committee’s decision in July to nominate controversial members of a commission that chooses a new anti-corruption prosecutor. They argue these members are not independent and do not meet ethics and integrity standards.
No Zelensky support
Fyodor Venislavsky, Zelensky’s representative in the Constitutional Court, argued on Aug. 29 that Sytnyk can no longer fulfill the functions of the bureau’s head and Zelensky may issue a decree to fire him.
“The first option is a presidential decree to fire the head of the NABU based on the Constitutional Court ruling,” he said. “I can’t say yet whether the president will do so.”
The President’s Office, meanwhile, started referring to Sytnyk as the “acting head” of the bureau, de facto backing the Constitutional Court decision.
“Due to this Constitutional Court ruling and the (legal) contradiction inherent in the bureau head’s possible loss of his powers, we expect the acting head of the bureau to implement anti-corruption policy effectively until a new head is chosen in a fair and transparent competition,” the President’s Office said.
Sytnyk wants to stay
Sytnyk said he was not going to resign and was planning to stay until his authority expires in 2022.
Sytnyk was chosen to head the bureau through a transparent competition that involved civil society and foreign experts. The president’s role in this process was formal: to appoint the winner.
“The presidential decree was issued after I assumed my authority, so this decree was effectively null and void,” he said. “Its cancellation does not imply the termination of my authority or my dismissal.”
Sytnyk’s deputy, Gizo Uglava, also said that Sytnyk remains head of the bureau and that since the Constitutional Court says Sytnyk cannot be appointed by the president, he cannot be fired by Zelensky either.
“Sytnyk can only be fired if Zelensky signs a decree (that allows him to fire Sytnyk). But since he cannot appoint the head of the NABU, he cannot fire him either,” he said.
Is it legal?
Lawyers cast doubt on the legality of the Constitutional Court ruling itself and on whether it can have any consequences from the legal standpoint.
“The decision is null and void and does not have any legal consequences for Sytnyk,” Stanislav Shevchuk, former head of the Constitutional Court, told the Kyiv Post. “Sytnyk is the head of the bureau until his term expires (in 2022).”
Vasyl Lemak, an incumbent judge of the Constitutional Court, disagreed with the court’s decision and wrote a dissenting opinion. Meanwhile, Ihor Slidenko, another current judge of the court, said that the decision does not mean that Sytnyk is no longer head of the NABU.
Vitaly Tytych, ex-head of the Public Integrity Council judicial watchdog, says the Constitutional Court ruling is highly dubious from a legal standpoint. He sees it as an exclusively political decision.
Although the Constitution does not mention this, the president’s authority to appoint the head of NABU is stipulated by the NABU law.
The Constitution does not specifically mention a presidential right to appoint the head of NABU but such authority may be implied in the constitutional right for the president to make other appointments stipulated by laws, Tytych argued.
Moreover, the head of the NABU cannot be dismissed based on a Constitutional Court ruling, according to the NABU law.
Under the NABU law, Sytnyk can only be fired if he resigns, reaches the age of 65, cannot perform his duties due to health reasons, is convicted of a crime, ceases to be a Ukrainian citizen, moves to another country, becomes a foreign citizen, has alimony debt or fails to file an asset declaration on time. He can also be fired if a court recognizes his family’s wealth to be ill-gotten or if a government audit finds the bureau to be ineffective.
Any other reasons for his dismissal are directly banned by the NABU law.
“The Constitutional Court doesn’t have the right to fire Sytnyk, meaning that the court’s decision doesn’t have any legal repercussions for Sytnyk,” Lemenov said.
Lemenov also argued that the president cannot fire Sytnyk through a presidential decree because he does not have such a constitutional right.
Sytnyk can only be fired by the Rada if a law regulating his dismissal and appointment is passed, Lemenov added.
Shabunin said that parliament was likely to fire Sytnyk, and Zelensky would handpick a loyal head of the NABU without a transparent recruitment process.
“There’s also a possibility that Zelensky will fire Sytnyk by decree, which will be completely unconstitutional,” he added, saying this would undermine Ukraine’s cooperation with the International Monetary Fund.
Powerful enemies
According to Lemenov, the Constitutional Court’s decision is a victory for a large group of people ranging from Interior Minister Arsen Avakov and oligarch Ihor Kolomoisky to Judge Pavlo Vovk and Zelensky. The NABU has investigated Avakov’s allies, Kolomoisky and Vovk, as well as Zelensky’s inner circle.
“Each side that fought with Sytnyk over the years has its reasons to support this decision,” Lemenov said.
The initiative to cancel the decree on Sytnyk’s appointment was authored by Oleksandr Dubinsky and Maksym Buzhansky — lawmakers allied with Kolomoisky — as well as Ukraine’s main pro-Russian politician Viktor Medvedchuk and other controversial lawmakers, including Andriy Derkach, Ilya Kiva, Anatoly Urbansky and Anton Kisse. The Constitutional Court ruling has also been actively supported by ex-President Viktor Yanukovych’s former Deputy Chief of Staff Andriy Portnov and Renat Kuzmin, who was a deputy prosecutor general under Yanukovych.
The latest attempt to oust Sytnyk could be revenge for his efforts to prosecute an obstruction of justice and corruption case against Vovk, the influential head of the Kyiv Administrative District Court, Lemenov and Shabunin said.
Antonina Slavytska, a lawmaker and former aide to ex-lawmaker Serhiy Kivalov, is implicated in Vovk’s schemes, according to tapes released by the NABU. She co-authored the initiative to cancel Sytnyk’s appointment through the Constitutional Court.
The President’s Office is also explicitly mentioned in the NABU tapes as interfering in the High Council of Justice’s work. The office and the council did not respond to requests for comment on the issue.
Vovk said in June 2019 that, if the High Council of Justice toed the Presidential Administration’s line, it would be fine, according to the NABU recordings. But he said that otherwise the council would be completely replaced.
Four sources at the NABU and the Prosecutor General’s Office told the Kyiv Post that Zelensky’s former chief of staff, Andriy Bohdan, is also mentioned in the Vovk tapes. The sources spoke on condition of anonymity because they are not authorized to speak to the press.
The NABU has also investigated abuse of power and bribery cases into videos implicating Denys Yermak, the brother of Zelensky’s current chief of staff, Andriy Yermak, in corruption. The videos showed Denys Yermak considering candidates for government jobs and discussing receiving money from some of them.
The Yermak brothers have not denied the authenticity of the videos, but Denys Yermak claimed they were taken out of context.
Previous attempts
The long-running campaign to oust Sytnyk began under Poroshenko, when the NABU investigated his top allies.
Back then, the Rada controlled by Poroshenko tried to fire Sytnyk by appointing loyal auditors who would find the NABU ineffective.
Under Zelensky, allies of Kolomoisky, Avakov and Poroshenko also led a campaign to oust Sytnyk and registered a motion in parliament to dismiss him.
The ostensible reason was that a court found him guilty of “receiving an unlawful benefit,” a misdemeanor, in 2019 after an acquaintance testified that he paid some Hr 25,000 (today, roughly $1,000) for Sytnyk’s vacations.
However, under Ukrainian law, a misdemeanor cannot be grounds for firing the head of the bureau. This is why Verkhovna Rada members have considered a bill to dismiss all officials found guilty of corruption misdemeanors, including Sytnyk.
But all these attempts have met fierce resistance from civil society and Ukraine’s foreign lenders.
Discredited court
Legal experts and anti-corruption activists have long called for the current Constitutional Court to be replaced. They say it has lost its credibility and is simply too controversial. The decision on Sytnyk is just the latest example of the court’s dubious performance.
The Constitutional Court has also made numerous other controversial rulings and found itself mired in corruption scandals.
Specifically, the court helped corrupt officials by canceling the law criminalizing illicit enrichment in 2019, partially canceled the judicial reforms of both Poroshenko and Zelensky in February and March 2020 and entrenched judicial impunity by canceling the law criminalizing unlawful court rulings in June 2020.
Zelensky’s effective endorsement of the Constitutional Court’s efforts to block anti-corruption reforms by attempting to remove Sytnyk met a backlash from civil society.
