Keep this in mind, Oleksandr Danylyuk said in a Kyiv Post interview: The current political crisis, precipitated by recent rulings from the Constitutional Court to dismantle some of the nation’s new anti-corruption institutions and laws, was entirely avoidable.
“Arguably, we could have done without the new anti-corruption infrastructure if there was a genuine desire on the top to reform police, courts, general prosecutor,” the former finance minister said.
But ex-President Petro Poroshenko had no desire to do so, he said, so reformers moved ahead with creating a new and parallel judicial system from scratch after the EuroMaidan Revolution toppled Viktor Yanukovych as president in 2014.
“Whether it’s right or wrong, it’s still difficult to say,” he conceded. “But if you refuse to use the old institutions, you need to build the new ones.”
So, not in unison and not perfectly, from 2014 to 2019 Ukraine created the four new institutions that are systematically coming under attack today: The National Association for the Prevention of Corruption, the National Anti-Corruption Bureau of Ukraine, the Special Anti-Corruption Prosecutor’s Office, and the High Anti-Corruption Court of Ukraine.
They all came into operation with limited powers and, by comparison with the established yet distrusted law enforcement institutions, smaller budgets, and staffing. The traditional law enforcement agencies – the Interior Ministry, Security Service of Ukraine, General Prosecutor’s Office, and courts – have at least 300,000 employees, while the new agencies have perhaps 10 percent of that total.
Moreover, Danylyuk noted, the Constitutional Court’s recent annulment of the illegal enrichment law – calling for criminal punishment of public servants who could not prove their declared money and assets were legally acquired — is another example of a law and a ruling that didn’t have to happen.
It is logical, he said, that if someone is guilty of illegal enrichment, he or she probably also committed tax evasion, money laundering or fraud in the process. All those three acts remain against the law in Ukraine and punishable as crimes.
But, again, the unwillingness of the existing law enforcement institutions to prosecute serious crimes by powerful people prompted the push for the illegal enrichment law.
A threat to the nation’s survival
Given “the mess today,” Danylyuk said he supports President Volodymyr Zelensky’s call for parliament to abolish the 15-member Constitutional Court. He says the court’s rulings show that its judges are not acting in the public interest and are controlled by outside forces who want to block Ukraine’s fight against corruption.
“He has to fight or surrender,” he said of the president’s options.
The rulings, he said, come as the High Anti-Corruption Court – the latest entry to the four new anti-corruption institutions – was starting to make progress, reinstating scuttled criminal investigations and issuing guilty verdicts for admittedly lower-level corruption cases.
If the Constitutional Court is allowed to do as it pleases and gut the anti-corruption infrastructure, especially given the conflicts of interests and criminal investigations involving at least four of its judges, then the nation will forever be held hostage, Danylyuk said.
“If corruption is not tackled in Ukraine, the country does not exist. If you dismantle all such anti-corruption infrastructure, we’re nowhere,” Danylyuk said. “The old rules of the game will return. Second, if we dismantle, it means no cooperation with the West. So many resources and capital were put into building this anti-corruption infrastructure. There will be no political or financial support if all of this is destroyed. And this defeat will be used by Vladimir Putin and the Kremlin’s agents here.”
Zelensky “will be weakened very seriously” if he doesn’t win the vote in parliament to disband the Constitutional Court – or at least find a compromise that is acceptable to the public.
The pro-Russian or anti-reform elements behind these rulings “put him in a position where he had no choice,” he said. “He had to finally demonstrate as a president he could make tough decisions. He raised the stakes very high. If you start this battle, you have to win.”
Compromises ‘that had to be taken’
Danylyuk has extensive public service, dating back to 2005. He held key post-EuroMaidan Revolution positions under Poroshenko as the president’s representative to the Cabinet of Ministers in 2014, deputy head of the presidential administration in 2015, and then as finance minister in 2016 until his firing in June 2018 after conflicts with Poroshenko and then-Prime Minister Volodymyr Groysman.
As such, he was intimately involved in helping to push the legislation creating the new anti-corruption institutions and is well aware of “the compromises that had to be taken” over who appointed the heads of the new agencies and what their powers would be. “It was very difficult to push a law that gave full independence to NABU,” the National Anti-Corruption Bureau of Ukraine, he said, citing one of many concessions made.
“It was very difficult for us, the group of people promoting reforms, to make it happen,” he said, with sabotage and obstruction every step of the way. “It was clear there was no willingness on the top to have truly independent institutions.”
But he said the legislation was legally sound and, although he’s not a lawyer, asked why it took the Constitutional Court six years to find the legislation enabling NABU unconstitutional. He then answered his own question. “What’s happening now shows those who suffer from the anti-corruption institutions finally got control of the Constitutional Court. They’re powerful and got some money and finally got enough strength to overrule it.”
Danylyuk says that simply reinstating the laws canceled by the Constitutional Court won’t work because it means that “everybody is off the hook. They can do whatever they want.”
As an example of the bureaucratic turf wars, Danylyuk cites his long and unsuccessful campaign to establish an independent agency that would investigative serious financial crimes – such as the $20 billion in bank fraud losses that Ukraine’s taxpayers suffered in the last decade, such as the estimated $40 billion that Yanukovych and his cronies stole during four years of power from 2010 to 2014.
But he said the Security Service of Ukraine, long under presidential control; the Interior Ministry controlled by Arsen Avakov, and the State Tax Service that he said is influenced by former acting President Oleksandr Turchynov did not want to cede control of their powers.
As a result, there’s still no financial investigative unit – and no prosecution of big financial crimes, such as the $5.6 billion allegedly stolen by billionaire oligarch Ihor Kolomoisky and his partners when they owned PrivatBank, which the state took over in 2016. Kolomoisky has always denied any bank fraud.
Another mistake, he said, was not creating the four institutions at once. He said Ukraine’s Western partners, who gave financing for the start-ups, preferred to set them up one at a time.
And the National Agency for the Prevention of Corruption and Specialized Anti-Corruption Prosecutor’s Office both became tainted by insiders, especially ex-prosecutor Nazar Kholodnytsky. He was caught on recordings engaged in sabotaging the investigations of NABU, accusations he denied.
The futility of the existing judicial system is exemplified, he said, by the endless court proceedings involving ex-State Tax Service chief Roman Nasirov, accused of forgiving tax debts in exchange for kickbacks.
“Look at the person who has stolen the money and he is laughing at the system,” Danylyuk said. In interviews, Nasirov has repeatedly denied any crime.
By June 2018, then-finance minister Danylyuk said he was in conflict with Poroshenko and Groysman over his strong push to create the High Anti-Corruption Court, warning that Western institutions would withhold a combined $4 billion in loans and assistance if the court did not get established. He said he got fired the day after the legislation passed parliament.
And now that soon after the whole infrastructure has been put in place, he is not surprised by the Constitutional Court’s actions to dismantle it.
While dismissing the court is “legally very questionable,” the alternative is worse.
“If they stay, it means there is no power in Ukraine, which will have to deal with all the consequences of their decisions, decisions that are most likely not theirs, but imposed decisions. We will not get anywhere as a nation. We will get only problems. What happened in the Constitutional Court cannot just be ignored. When you’re living in a swamp, you need to fight dirty.”
