This summer, Ukraine is expected to choose its chief anti-corruption prosecutor and deputy.
By law, they must be independent from the prosecutor general and other branches of government. However, anti-corruption activists expect the new anti-corruption prosecutor to be loyal to the corrupt political establishment.
The commission that chooses the anti-corruption prosecutor is dominated by pro-government members, while foreign experts have a much smaller role.
“They won’t allow a person who acts independently, according to the law, to become the chief anti-corruption prosecutor,” Oleksandr Lemenov, head of anti-corruption watchdog StateWatch, told the Kyiv Post. “I don’t expect anything good from this competition.”
The chief anti-corruption prosecutor will directly supervise all cases of the National Anti-Corruption Bureau. This would allow a compromised candidate to block NABU cases against top officials.
If Ukraine fails to appoint an independent anti-corruption prosecutor, this may disrupt lending from the International Monetary Fund and jeopardize Ukraine’s visa-free travel with the European Union, according to the Anti-Corruption Action Center.
Commission
The commission that will choose the chief anti-corruption prosecutor consists of four experts nominated by international organizations and seven members delegated by parliament.
The internationally-nominated members include Roman Kuybida, an expert at the Center of Policy and Legal Reform; Nona Tsotsoria, a Georgian ex-judge of the European Court of Human Rights; Drago Kos, chairman of the Organization for Economic Cooperation and Development’s working group on bribery; and Thomas Firestone, a former assistant U.S. attorney in the Eastern District of New York.
The commission members delegated by parliament are more controversial. The Anti-Corruption Action Center argued that their selection broke the law, which requires them to have an impeccable reputation. The center also said they have no genuine experience in the anti-corruption sphere.
“The fact that (President Volodymyr) Zelensky’s faction delegated commission members in violation of the law despite foreign partners’ numerous warnings proves that this was done on the orders of the President’s Office,” Vitaly Shabunin, head of the Anti-Corruption Center’s executive board, said in September. “Zelensky is intentionally pushing Ukraine towards cooperation with pro-Russian forces and a disruption in relations with the West.”
The commission members denied the watchdog’s accusations at parliamentary committee hearings, arguing that they had enough anti-corruption experience. They did not respond to requests for comment.
Questionable backgrounds
Activists have alleged a laundry list of problems with the seven commission members assigned by parliament.
Several have discrepancies in their asset declarations, according to the Anti-Corruption Action Center. They include commission chief Kateryna Koval, who is also the deputy head of the Union of Lawyers of Ukraine; Yevhen Sobol, a legal scholar at the Central Ukrainian State Pedagogical University; Oleksiy Drozd, a legal scholar at the National Academy of Interior Affairs, and lawyer Andriy Hudzhal.
Several members have links to the Interior Ministry. Anti-corruption activists believe this may be a sign of possible influence from the notorious Interior Minister Arsen Avakov and the old guard of the National Police.
For example, Drozd’s university is run by the Interior Ministry, and his father is a former top police official. Another commission member, Bohdan Romanyuk, is a former top police official who was accused of organizing beatings of nationalists in Lviv Oblast. The husband of commission member Olena Busol, a legal scholar at the Tavria National University, used to be a police officer.
The commission members also have other controversial connections.
Hudzhal was delegated by the pro-Kremlin Opposition-For Life party, whose leader, Viktor Medvedchuk, has recently been charged with high treason. Hudzhal had been fired as prosecutor and failed to pass the official prosecutorial vetting process in 2019.
Koval used to be a member of ex-President Viktor Yanukovych’s judicial reform working group along with Yanukovych allies Andriy Portnov and Olena Lukash.
The Anti-Corruption Action Center cited its sources in saying that Zelensky’s deputy chief of staff Oleh Tatarov, who is responsible for law enforcement, handpicked the commission members. Tatarov has been charged in a high-profile bribery case, which has effectively been buried by judges and prosecutors.
Tatarov did not respond to requests for comment.
Only one parliamentary delegate raised no complaints from activists: Vyacheslav Navrotsky, a law professor at the Ukrainian Catholic University.
Foreigners’ role
Pro-government commission members can ensure that only a pliable candidate gets chosen.
The foreign-appointed experts can veto the worst candidates only when they are interviewed. At least five members delegated by parliament and at least two foreign experts will be needed to greenlight a candidate as a result of an interview.
Activists expect that after the interviews are done, a significant number of compromised candidates will remain, who can no longer be vetoed by foreign experts.
At that point, each commission member will grade a candidate based on their professional experience and integrity. The candidate with the highest score will automatically win without a final confirmation vote.
The commission’s pro-government members can agree to give the highest scores to the most politically loyal candidates, regardless of merit.
“The foreign experts have effectively absolved themselves of responsibility,” Sergii Gorbatuk, a former chief investigator who has dropped out of the competition, told the Kyiv Post. “When the seven members delegated by the Verkhovna Rada coordinate among themselves, they will assign scores the way the government wants.”
Commission member Kuybida told the Kyiv Post he believed the worst candidates would be vetoed by the commission’s foreign experts during interviews.
Another problem is that pro-government commission members will be able to block any independent candidates if at least five of them do not support them.
Testing problems
Observers also have questions about the legal knowledge and IQ tests that the current crop of candidates has already taken.
First, the legal knowledge exams are very basic, more suitable for testing law students than the next top anti-corruption prosecutor, according to Gorbatuk and Vitaly Tytych, ex-head of judicial watchdog Public Integrity Council.
They argue that the only correct way to check candidates’ professionalism is to research their career and background.
Second, the tests often have multiple correct answers to a single question, which creates room for manipulation, they argue.
Third, given Ukraine’s omnipresent corruption, authorities are often accused of manipulating and rigging qualification test results. In the past, it’s often been impossible to verify test scores when government bodies refused to tell candidates which of their answers were correct.
Kuybida defended the testing methodology, saying that it was common practice and that he supported full transparency to increase public trust in the test results.
The next stage, which has yet to take place, will include interviews with commission members and longform written assignments.
Candidates
Out of an initial 133 eligible candidates, 37 have passed the tests and remain in the running for chief anti-corruption prosecutor and the deputy chief anti-corruption prosecutor.
The Anti-Corruption Action Center and StateWatch argue that the President’s Office and pro-government commission members are planning to appoint Andriy Kostin, a member of parliament from President Volodymyr Zelensky’s Servant of the People party, as the chief anti-corruption prosecutor. Kostin currently ranks ninth, according to his score. The President’s Office and Kostin did not respond to requests for comment.
According to the rules of the competition, candidates must be politically neutral. Kostin should not be eligible due to his leading role in Zelensky’s party, Olena Shcherban, a lawyer at the Anti-Corruption Action Center, told the Kyiv Post.
Kostin could have a conflict of interest since he represents Servant of the People and heads the Verkhovna Rada’s legal policy committee, letting him influence law enforcement.
“Kostin is playing a role assigned to him at the President’s Office,” Lemenov said. “The fact that he passed so easily is bizarre.”
Meanwhile, some strong candidates like ex-Deputy Justice Minister Andriy Vyshnevsky and anti-corruption prosecutor Serhiy Kozachyna have dropped out of the competition already, which raises suspicions, Lemenov said.
Gorbatuk has also dropped out. As a former chief investigator for cases related to the EuroMaidan Revolution, Gorbatuk has been praised by civil society for his independence and professionalism.
Even if Kostin does not become the chief anti-corruption prosecutor, pro-government members have other loyalist candidates to choose from, activists believe. These include Lviv Oblast’s chief prosecutor Anton Voitenko, who ranks 18th.
Olena Krolevetska, head of a NABU unit, and NABU detective Oleksiy Heiko are currently the frontrunner and the runner-up, respectively, according to their scores. But Lemenov is sure pro-government commission members will find excuses to kick them out because they fear their independence.
Another candidate with a reputation for independence, anti-corruption prosecutor Roman Symkiv, is in 11th place. The current acting chief anti-corruption prosecutor, Maksym Hryshchuk, who has a mixed record, ranks 27th.
Kholodnytsky saga
The previous chief anti-corruption prosecutor, Nazar Kholodnytsky, resigned in August. He has been involved in many controversies.
In April 2020 Kholodnytsky’s office transferred a corruption case linked to Zelensky’s chief of staff Andriy Yermak from the NABU to the police, prompting accusations that it had thus buried and blocked the case.
Geo Leros, a member of Zelensky’s Servant of the People party, had published videos implicating Andriy Yermak’s brother Denys in corruption.
They showed the chief of staff’s brother considering candidates for government jobs and discussing receiving money from some of them. The Yermak brothers denied the accusations of wrongdoing.
In 2018, Kholodnytsky’s office also closed a Hr 14 million embezzlement case against Avakov’s son Oleksandr. The decision was made despite the fact that the NABU investigated video footage in which Oleksandr Avakov can be seen and heard negotiating the corrupt deal. Oleksandr Avakov denies the accusations of wrongdoing.
In the same year, the NABU also released audio recordings in which Kholodnytsky is 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.
Kholodnytsky’s successor is likely to block even more cases, Lemenov said.
Kholodnytsky was initially independent and then reached a bargain with the authorities but the yet-to-be-appointed chief anti-corruption prosecutor will likely be a staunch protégé of the government from the beginning, he added.
