See related stories here and here.
With the prospect of Chief Anti-Corruption Prosecutor Nazar Kholodnytsky leaving office and facing charges, the National AntiCorruption Bureau’s future looks uncertain.
Reanimation Package of Reform experts believe Prosecutor General Yuriy Lutsenko will use the corruption scandal as an excuse to get direct control over the NABU, which will paralyze its work.
But NABU Chief Artem Sytnyk is more optimistic. He told the Kyiv Post that he did not rule out the risk of Lutsenko using the Kholodnytsky case for his political purposes but hopes his bureau and anti-corruption prosecutors will be able to continue their anti-corruption drive.
Under Ukrainian law, if Kholodnytsky is fired, his duties will be fulfilled by his first deputy, Maksym Hryshchuk, until a new chief anti-corruption prosecutor is selected.
Only the prosecutor general or deputy prosecutor general can file a notice of suspicion for lawyers, mayors, judges and jury members, according to the law.
This means that, unless appointed a deputy prosecutor general, Hryshchuk will not be able to bring charges against these categories of officials but Lutsenko and his deputies will be able to do so.
Moreover, only the prosecutor general and his deputies can select prosecutors for specific cases, transfer cases to other prosecutors and authorize searches for judges and lawyers.
So, unless Hryshchuk is appointed as deputy prosecutor general, Lutsenko will be able to block NABU cases by selecting loyal anti-corruption prosecutors and refusing to authorize searches for judges and lawyers, as well as major notices of suspicion, said Volodymyr Petrakovsyi, a law enforcement expert at the Reanimation Package of Reforms.
“Now the NABU will be under Lutsenko’s control,” Zlata Simonenko, a law enforcement expert from the Reanimation Package of Reforms, told the Kyiv Post. “It’s a pretty sad situation.”
However, Sytnyk believes that, by assuming the duties of the de facto head of the anti-corruption prosecutor’s office, Hryshchuk will automatically be able to carry out the functions of a deputy prosecutor general like Kholodnytsky.
But Lutsenko may disagree with that.
The Prosecutor General’s Office believes that Lutsenko should effectively become the acting chief anti-corruption prosecutor after Kholodnytsky’s resignation, taking direct control over the NABU, according to the Ukrainska Pravda online newspaper’s sources at the Prosecutor General’s Office.
Moreover, the competition for a new chief anti-corruption prosecutor may take ages, and there is no guarantee that it will be fair and transparent.
Even before the NABU recordings on Kholodnytsky were published on April 4, he had been accused of blocking NABU cases in the interests of President Petro Poroshenko and the People’s Front party.
He denied the accusations.
In June the anti-corruption prosecutor’s office suspended a bribery case against Central Election Commission Chairman Mykhailo Okhendovsky, claiming it was waiting for documents from abroad.
Sytnyk told the Kyiv Post that he disagreed with Kholodnytsky’s decision, and that the Okhendovsky case should have been sent to trial.
Reanimation Package of Reforms experts have also accused Kholodnytsky of blocking notices of suspicion for ex-State Fiscal Service Chief Roman Nasirov, ex-People’s Front lawmaker Martynenko and Interior Minister Arsen Avakov’s son Oleksandr for months before they were ultimately filed.
Moreover, Lutsenko and Kholodnytsky have already used their authority to take high-profile cases away from the NABU.
In November Hanna Solomatina and Oksana Divnich, whistleblowers at the National Agency for Preventing Corruption, accused their agency of large-scale corruption and being controlled by Poroshenko. But the NAPC graft case was transferred, on the orders of Kholodnytsky and Lutsenko, from the NABU to the presidentially controlled Security Service of Ukraine, or SBU, in what critics, including Solomatina, believe to be an effort to destroy the case.
In March Oleksandr Pysarenko, the NAPC’s acting chief of staff, filed a report effectively confirming the whistleblowers’ position. He said top NAPC officials, including Oleksandr Skopych, could have committed crimes including abuse of power and failed to report officials’ failure to file declarations and violations in asset declarations.
The authorities have also refused to provide the NABU with independent wiretapping powers. As a result, the NABU has to use SBU wiretapping equipment, which results in information leaks to suspects in corruption cases.
NABU cases are also being blocked in courts.
The NABU said in February that, out of the 116 cases it had sent to courts, 44 cases were not being considered. Only two minor officials have been convicted to prison terms.
In March the Verkhovna Rada passed the first reading of a bill to create an anti-corruption court to consider NABU cases but Poroshenko has resisted demands to adopt guarantees that the court is independent.
The authorities also thwarted the investigations of the NABU by passing procedural code amendments that came into effect in March.
The amendments block criminal cases by requiring that notices of suspicion should be filed within one-and-a-half years after the opening of a case for grave crimes, and within one year for crimes of medium severity, lawyers say. Cases should be sent to trial within two months after a notice of suspicion is filed, according to the amendments.
Sytnyk told the Kyiv Post that the NABU had been swamped with motions to close criminal cases and cancel notices of suspicion, which may “paralyze the whole law enforcement system.”
“(The authorities) adhere to the logic that, if it’s bad for the NABU, they’ll adopt it even if other law enforcers also suffer,” Sytnyk quipped.
When Sytnyk and Kholodnytsky spoke at parliament on April 4, lawmakers from the Poroshenko Bloc and the People’s Front mostly lashed out at Sytnyk in an apparent effort to discredit the NABU.
Poroshenko Bloc lawmakers called on April 4 for appointing a NABU auditor as soon as possible. If a pro-government auditor is selected, Sytnyk may be fired as a result of an audit.
Previously the authorities have made several attempts to restrict the NABU’s independence.
Meanwhile, a bill that could potentially block the investigative activities of the NABU was submitted to parliament on March 19 by lawmaker Nina Yuzhanina of the 135-member Bloc of Petro Poroshenko faction. Poroshenko on April 5 called on the Verkhovna Rada to pass the bill urgently.
The legislation would create a presidentially controlled National Financial Security Bureau, which will be able to investigate the embezzlement of government funds under Article 191-1, overlapping with high-profile cases of the NABU. As a result, Lutsenko would have powers to take major cases away from the NABU and transfer them to the National Financial Security Bureau, helping corrupt officials escape justice, according to Zlata Simonenko, a law enforcement expert at the Reanimation Package of Reforms.
In December pro-government lawmakers submitted a bill that would enable parliament to fire Sytnyk without an audit of his performance, eliminating the bureau’s independence. The bill was later removed from the agenda after Western criticism.
In December the Verkhovna Rada also fired Yegor Soboliev, a major defender of the NABU’s independence, from the position of chairman of parliament’s anti-corruption committee.
In November, the Prosecutor General’s Office and the Security Service of Ukraine disrupted a NABU corruption investigation into the State Migration Service by publishing the personal data of NABU undercover agents, blowing their cover. The agents were arrested and charged with provoking an official to take a bribe, which the NABU denies.
Sytnyk said that the authorities had foiled all NABU undercover operations and were trying to destroy the bureau.
Pro-government lawmakers have also repeatedly tried to appoint loyal auditors in order to control and potentially fire Sytnyk.
