Since the National Anti-Corruption Bureau of Ukraine (NABU) was launched in 2016, attempts to fire its head Artem Sytnyk or eliminate its independence have been constant.
The latest one came on Feb. 15, when the Cabinet of Ministers submitted a bill seeking to fire Sytnyk before his term expires in 2022 and introduce a procedure that allows President Volodymyr Zelensky to control the selection of a new NABU chief. The President’s Office did not respond to requests for comment.
Almost all of the previous efforts to fire Sytnyk or restrict the NABU were a backlash by Ukraine’s corrupt establishment against cases by the bureau against top corrupt officials and oligarchs.
“The Cabinet bill on the NABU is a step towards destroying the institution,” the NABU said in a statement on Feb. 18, adding that it was an effort to eliminate its independence.
The current effort was a reaction to the NABU’s high profile corruption cases into Zelensky’s deputy chief of staff Oleh Tatarov and embezzlement during COVID-19 vaccine purchases, according to sources familiar with the situation. The sources spoke on condition of anonymity because they were not authorized to speak to the press.
The Cabinet claims that its bill aims to bring the NABU in line with Constitutional Court rulings as part of talks with the International Monetary Fund (IMF). However, the legislation may in fact further disrupt IMF lending since the NABU’s independence is a crucial condition of the fund’s memorandums with Ukraine.
The IMF mission concluded on Feb. 13 that Ukraine needs to show more progress before it can receive another $700 million tranche in the existing stand-by lending arrangement. This includes reforming the High Council of Justice, the judiciary’s highest governing body and getting rid of its controversial members.
Zelensky submitted a bill on the High Council of Justice on Feb. 12. However, judicial and anti-corruption watchdogs argue that the bill would not clean up the council to the IMF’s standards and may further disrupt Western lending. The IMF declined to comment.
Constitutional Court rulings
In August the Constitutional Court canceled then-President Petro Poroshenko’s 2015 decree to appoint Sytnyk as head of the bureau.
In September the Constitutional Court also canceled clauses of the NABU law that give the president a role in selecting and appointing the head of the NABU and ruled that the bureau is an executive body subordinate to the Cabinet, not a law enforcement agency.
The measures were criticized by legal experts and anti-corruption activists as an effort by the corrupt establishment to destroy the NABU’s independence. Independent lawyers cast doubt on the legality of the Constitutional Court rulings.
The Constitutional Court rulings were preceded by a long-running campaign by allies of oligarch Ihor Kolomoisky, the pro-Russian Opposition Platform-For Life and ex-President Petro Poroshenko’s associates to have Sytnyk fired and destroy the bureau’s independence.
Essence of the bill
The bill submitted by the Cabinet on Feb. 15 claims to bring the NABU in line with the Constitutional Court rulings. But while the Constitutional Court rulings ostensibly sought to diminish presidential powers, the bill allows the president to control the selection of the NABU’s head.
Three commission members for choosing a new NABU chief will be delegated by the presidentially controlled National Security and Defense Council, and six members, including three foreign experts, will be chosen by the Cabinet – also a body loyal to Zelensky.
“The procedure guarantees that a NABU head controlled by Zelensky will be chosen,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, wrote on Facebook.
Until a new head of the NABU is chosen, Sytnyk’s first deputy chief Gizo Uglava will be the acting head of the NABU, according to the bill.
However, the bill does not explicitly say what Sytnyk’s status will be, which may lead to an absurd situation in which the bureau has two heads: Uglava and Sytnyk, the Anti-Corruption Action Center said. This will disrupt the legitimacy of the NABU, the watchdog added.
The NABU also said that final decisions on appointing the bureau’s head would be made by the Cabinet, whose top members must be investigated by the bureau – an apparent conflict of interest. The bureau also said that the change in its status from a law enforcement agency to an executive body may be used by the authorities as a tool to reshuffle the NABU’s staff.
Malyuska’s explanations
The bill was authored by Justice Minister Denys Malyuska. Malyuska said on Facebook that the Cabinet had previously submitted a bill to keep Sytnyk until his authority expires in 2022 but parliament did not support it.
However, the problem of bringing the NABU in line with the Constitutional Court rulings remained and it’s a condition of Ukraine’s cooperation with the IMF, Malyuska added. Malyuska said, however, that he personally thinks that Sytnyk remaining as head of the NABU until 2022 does not contradict the Constitution.
Malyuska told Suspilne television on Feb. 17 that the NABU bill had not been approved by the IMF. He added that the Cabinet would work on the final text of the bill with the fund and ask parliament to adopt it only after the fund approves it.
“There is definitely a political context,” Malyuska told Suspilne in a reference to the accusations that Sytnyk’s dismissal was prompted by high-profile NABU cases. “Let’s be cynical. Sytnyk is so hated in parliament that I’m sure that any bill replacing Sytnyk with someone else for the few upcoming months will get additional votes.”
Malyuska himself praised Sytnyk, saying that “he effectively fulfills his functions” and that he’s honest and is showing good results.
Meanwhile, as part of his justification the minister cited a ruling by the discredited Kyiv District Administrative Court, which is headed by Pavlo Vovk, a suspect in a NABU graft case. In October the court ordered Sytnyk’s dismissal despite having no such jurisdiction.
IMF stance
“The justice minister explicitly admits that Sytnyk’s dismissal is political and is due to his effectiveness,” Shabunin told the Kyiv Post. “He recognizes that Sytnyk is a good and honest head of the NABU, and that’s exactly why they want to fire him.”
Shabunin argued that the NABU bill directly violates Ukraine’s memorandum with the IMF.
“We will uphold NABU’s institutional and operational independence, including by upholding procedures for appointment of its head and maintaining the limited and serious grounds for dismissal of its head, in line with Law No. 2014/1698-VII,” the memorandum reads.
“The law has an exhaustive list of reasons for firing the NABU head, and the list doesn’t contain someone’s political motives,” Shabunin added.
Under Law No. 2014/1698-VII, 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.
NABU investigations
The NABU bill was submitted after Zelensky called Sytnyk and harshly criticized him for starting the vaccine investigation, according to the Kyiv Post’s sources.
In February the NABU opened an investigation into alleged embezzlement during procurement of a COVID-19 vaccine by the Ukrainian Health Ministry. The investigation looks into the ministry’s choice of a Ukrainian company that it’s using as an intermediary to buy 1.9 million doses of the vaccine made by Sinovac Biotech, a Chinese company.
Another case that led to the bill is the one against Zelensky’s deputy chief of staff Tatarov, according to the Anti-Corruption Action Center.
On Dec. 18, Tatarov, who used to serve as a lawyer for construction firm Ukrbud, was charged with bribing a forensic expert on behalf of ex-Ukrbud president Maksym Mykytas to give false evaluation results. Tatarov has denied accusations of wrongdoing.
The Tatarov case has faced continued sabotage by prosecutors and courts.
Prosecutor General Iryna Venediktova replaced the group of prosecutors in the Tatarov case on Dec. 1 as they were preparing to bring charges against the deputy chief of staff and going to a court to apply for his arrest. As a result, the charges were blocked.
On Dec. 24, Venediktova’s office used a Pechersk District Court ruling to take the case away from the NABU.
However, under Ukrainian law, the Tatarov bribery case falls directly into NABU’s jurisdiction, and NABU cases cannot be investigated by other law enforcement agencies. Disputes on NABU’s jurisdiction can only be considered by the High Anti-Corruption Court and cannot be heard by the Pechersk Court.
The Tatarov case was effectively buried on Dec. 30 when new prosecutors appointed by Venediktova refused to arrest him.
The High Anti-Corruption Court ruled on Jan. 15 that the Tatarov case must be investigated by the NABU and ordered Venediktova to consider a motion to transfer the investigation to the bureau. However, the Prosecutor General’s Office refused to do so on Feb. 8, citing the Pechersk Court decision.
“Apparently the reason for (Cabinet bill on the NABU) bill is a desire to appoint a loyal head of the NABU who will get calls from the President’s Office and block cases against people like Tatarov or open cases against Zelensky’s enemies,” Shabunin said on Feb. 16.
NABU blocked
The NABU’s work is currently being blocked more than ever before, law enforcement sources told the Kyiv Post.
This is because, unlike his predecessor Nazar Kholodnytsky, current acting Chief Anti-Corruption Prosecutor Maksym Hryshchuk does not have the status of a deputy prosecutor general.
Hryshchuk, who oversees the NABU, cannot authorize charges for many top officials and has to get the approval of Venediktova, who is blocking most cases, the sources said. The Prosecutor General’s Office, which previously denied the accusations of sabotage, did not respond to requests for comment.
Under Ukrainian law, only the prosecutor general and her deputies can approve charges for judges, members of parliament and some other top officials.
In 2020 the Rada also appointed controversial commissioners to appoint a new chief anti-corruption prosecutor. The commissioners do not meet integrity and professional standards and will likely choose a politically loyal candidate, according to anti-corruption activists.
Judicial reform
Ukrainian authorities’ opposition to a decisive role for foreign experts in the selection of a new NABU chief contributed to the suspension of talks with the IMF, according to Shabunin.
Similarly, the talks were also disrupted because the Ukrainian government and the IMF had disagreements on the role of foreign experts in the firing and appointment of members of the High Council of Justice, the judiciary’s discredited highest governing body, according to Timofiy Mylovanov, an aide to Zelensky’s chief of staff Andriy Yermak and a former economy minister.
Mylovanov has gone so far as to accuse the IMF of sabotage and hurling expletives on the fund, saying that it “fucked up.”
On Feb. 12, Zelensky submitted a bill that ostensibly seeks to comply with the IMF conditions on the council. However, the Anti-Corruption Action Center, legal think-tank DEJURE and AutoMaidan, an anti-graft watchdog, argue that the bill will fail to cleanse the High Council of Justice and violates the IMF conditions.
“The bill does not ensure the main thing – a decisive role for international experts in the cleansing of the High Council of Justice,” Mykhailo Zhernakov, head of legal think tank DEJURE, said on Feb. 17. “The council’s composition will remain unchanged.”
