The independence of Ukraine’s anti-corruption institutions is a prerequisite for further financial aid from the International Monetary Fund, Gerry Rice, head of the IMF’s communications department, said at a press briefing on Sept. 10.
“Creating an effective anti-corruption framework has been a critical element of the IMF’s engagement with Ukraine for the last few years,” he said. “Maintaining the independence and integrity of the National Anti-Corruption Bureau of Ukraine, the Special Anti-Corruption Prosecutor’s Office and the High Anti-Corruption Court is a key component of structural reforms to unlock stronger and more equitable growth and a prerequisite under the current IMF-supported program.”
The statement followed a controversial Aug. 28 decision by the Constitutional Court, which ruled that then-President Petro Poroshenko’s 2015 decree to appoint Artem Sytnyk as the head of the National Anti-Corruption Bureau (NABU) 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.
Fyodor Venislavsky, Zelensky’s representative in the Constitutional Court, argued on Aug. 29 that Sytnyk can no longer carry out the functions of the bureau’s head and Zelensky may issue a decree to fire him.
Sytnyk said he was not going to resign and was planning to stay until his authority expires in 2022.
Lawyers cast doubt on the legality of the Constitutional Court ruling itself and on whether it can have any consequences from the legal standpoint.
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 expressly include it, the president’s authority to appoint the head of NABU is stipulated by the NABU law.
SAPO’s independence
The independence and integrity of another institution, the Special Anti-Corruption Prosecutor’s Office, has been compromised for years.
The previous chief anti-corruption prosecutor, Nazar Kholodnytsky, resigned in August.
In 2018, NABU released audio recordings in which Kholodnytsky is allegedly heard pressuring anti-corruption prosecutors and courts to stall cases, urging a witness to give false testimony and tipping off suspects about future searches. Kholodnytsky confirmed that the tapes were authentic but said they had been taken out of context.
That same year, Kholodnytsky’s office also closed a Hr 14-million embezzlement case against Interior Minister Arsen Avakov’s son Oleksandr. The decision was made despite the fact that NABU investigated video footage in which Oleksandr Avakov can allegedly be seen and heard negotiating the corrupt deal.
Now a competition commission must choose a replacement for Kholodnytsky.
Anti-corruption activists have lambasted the parliamentary law enforcement committee’s decision in July to nominate controversial figures to the commission that will choose the new anti-corruption prosecutor. They argue that these people are not independent and do not meet ethics and integrity standards.
The Anti-Corruption Action Center argued that their nomination violates the law, which requires them to have an impeccable reputation and moral qualities. The center also said the candidates have little genuine experience in the anti-corruption sphere.
The candidates denied the watchdog’s accusations at the committee hearing, arguing that they had enough anti-corruption experience.
Vitaly Shabunin, head of the Anti-Corruption Center’s Executive Board, said that some of the candidates were controlled by Interior Minister Avakov. The minister’s spokeswoman Natalia Stativko declined to comment.
