After the EuroMaidan Revolution that ousted President Viktor Yanukovych in 2014, Ukrainian reformers set out to create an anti-corruption triangle staffed by newly hired, independent and impeccable law enforcers.
The triangle is supposed to include the National Anti-Corruption Bureau, or NABU, for investigating graft cases; the Special Anti-Corruption Prosecutor’s Office for prosecuting them; and the High Anti-Corruption Court for trying them.
But four years later, the whole operation is teetering.
Ukrainian authorities, including President Petro Poroshenko, have touted the law on the anti-corruption court as the final breakthrough in their anti-graft efforts. Poroshenko’s turnaround came after he opposed such a court for more than a year.
The High Qualification Commission of Judges denied the accusations of sabotage, while the anti-corruption prosecutor’s office and the Presidential Administration did not respond to requests for comment.
Meanwhile, the Special Anti-Corruption Prosecutor’s Office has been discredited and is blocking major corruption cases investigated by the NABU. The prosecutor’s office has in turn accused the NABU of failing to properly investigate cases and having political motives.
The NABU, in turn, is incapable of properly investigating cases because it is being sabotaged by other government institutions.
Even if a genuinely independent High Anti-Corruption Court is created, it will have no cases to consider if Chief Anti-Corruption Prosecutor Nazar Kholodnytsky remains in his job, or if NABU Chief Artem Sytnyk is replaced with a government loyalist, anti-corruption activists argue. Poroshenko has denied accusations of attempting to destroy the NABU’s independence.
But even an independent High Anti-Corruption Court is not a given.
Members of the Public Integrity Council, the judiciary’s civil society watchdog, say that the High Qualification Commission has all tools at its disposal to select a politically loyal and impotent anti-corruption court.
Ukraine’s anti-corruption infrastructure has been a major topic of discussion between the Ukrainian authorities and the International Monetary Fund.
The IMF and the Ukrainian government on Oct. 19 reached a 14-month stand-by arrangement to lend $4 billion by the end of 2019.
Progress in the High Anti-Corruption Court’s creation is a major condition of the arrangement. It is not clear, however, if conditions related to the NABU and Special Anti-Corruption Prosecutor’s Office were included in the agreement.
A source familiar with its contents who was not authorized to speak to the press told the Kyiv Post the NABU and Special Anti-Corruption Prosecutor’s Office were not mentioned in the arrangement.
The IMF did not respond to a request for comment, but has stressed in public statements that a genuine fight against corruption in Ukraine is an important component of the lender’s conditions.
NABU sabotaged
One problem with the NABU is that it has few resources to investigate top-level corruption.
The IMF and Ukrainian authorities have discussed giving the NABU independent wiretapping powers and access to officials’ electronic asset declarations.
Currently, asset declarations are checked by the National Agency for Preventing Corruption, but it has proven incapable of punishing top officials for violations in their disclosures.
The National Agency for Preventing Corruption launched automatic checks of declarations, as opposed to manual ones, in September and denied accusations of sabotage. However, Sasha Drik from the Declarations Under Control Watchdog told the Kyiv Post this “will not affect the effectiveness of declaration checks under the agency’s current leadership.”
Meanwhile, efforts are under way to get rid of the leadership of the NABU, which is seen as independent of Ukraine’s leaders.
If NABU Chief Artem Sytnyk is replaced with a loyalist of the authorities, Ukraine’s anti-corruption infrastructure will be paralyzed regardless of whether the Special Anti-Corruption Prosecutor’s Office and the High Anti-Corruption Court are effective.
“This parliament and president are capable of anything,” Zlata Simonenko, a law enforcement expert at the Reanimation Package of Reforms, told the Kyiv Post. “If Sytnyk is removed, the whole institution will be undermined. Nobody (among Ukraine’s top officials) is interested in keeping Sytnyk in the job ahead of the (2019) elections.”
One possible way to fire Sytnyk is if an audit of the NABU produces negative conclusions. The IMF has expressed concerns over such a scenario, and it has discussed the condition under which the auditing methodology for the NABU must be authorized by the fund, according to the Kyiv Post’s sources.
President Petro Poroshenko, the Verkhovna Rada and the cabinet had appointed three NABU auditors by June. The authorities have been criticized for the appointments because they rejected the candidacies of foreigners with a reputation for integrity and independence, and there is no guarantee that the three Ukrainian appointees will be independent.
In September, the Supreme Court rejected the Anti-Corruption Action Center’s lawsuit to cancel the appointment of the NABU auditor chosen by Poroshenko – Pavlo Zhebrivsky. The center argued that Zhebrivsky does not have experience in foreign law enforcement, judicial agencies or international organizations, and therefore his appointment violates the law, while he denied the accusations.
Simonenko said, however, that the audit has not started yet.
Another way to get rid of Sytnyk could be through a criminal case. He can be suspended if charged, and fired if convicted.
While multibillion-dollar corruption remains unpunished, Sytnyk is being investigated by the Prosecutor General’s Office over the alleged petty crime of divulging a state secret and a secret from a pre-trial investigation. Prosecutor General Yuriy Lutsenko said in September that Sytnyk would be charged in the case.
However, according to a document from the anti-corruption prosecutor’s office obtained by the Kyiv Post, Sytnyk had the right to divulge the information because NABU detectives and anti-corruption prosecutors had declassified it. Moreover, the information could not be secret because the case had already been submitted to trial.
The Prosecutor General’s Office did not respond to a request for comment.
The information, which was allegedly leaked by Sytnyk at an off-the-record meeting with journalists in 2017, concerns an unlawful enrichment case against a top prosecutor, Kostyantyn Kulik.
Kulik was charged with unlawful enrichment of Hr 2 million in 2016. Instead of firing him, Lutsenko has protected Kulik and promoted him to a deputy chief at the international cooperation department of the Prosecutor General’s Office in April.
Discredited prosecutors
Another problem is the discredited anti-corruption prosecutor’s office.
The IMF and Ukrainian authorities have negotiated the possibility of firing Chief Anti-Corruption Prosecutor Kholodnytsky and launching a new competition to hire the head of the Special Anti-Corruption Prosecutor’s Office, according to the Kyiv Post’s sources. However, the Ukrainian government has obstinately resisted the proposal, given that Kholodnytsky is crucial for their survival, the sources said.
“The Special Anti-Corruption Prosecutor’s Office is a key link,” Simonenko said. “Even if there’s a good court and an (effective) NABU, they won’t be able to coordinate anti-corruption efforts (without the Special Anti-Corruption Prosecutor’s Office).”
In April, the NABU released audio recordings in which Kholodnytsky is heard obstructing corruption cases. Kholodnytsky confirmed that the tapes were authentic but said they had been taken out of context.
The High Qualification Commission of Prosecutors decided in July not to fire Kholodnytsky and merely reprimanded him for such behavior.
In August, the Supreme Court upheld the commission’s decision to leave Kholodnytsky in his job. The Supreme Court’s Grand Chamber is scheduled to consider an appeal against the ruling on Dec. 18.
The NABU also asked the Prosecutor General’s Office in March to bring charges against Kholodnytsky, but prosecutors have effectively blocked them.
Another scandal broke in July, when Kholodnytsky’s office closed the embezzlement case against Interior Minister Arsen Avakov’s son, Oleksandr Avakov, and the minister’s ex-deputy Serhiy Chebotar despite massive evidence against them, including video footage of them discussing a corrupt deal. They claimed the video footage is fake, but courts have recognized it as genuine.
Ukrainian courts refused to consider the Anti-Corruption Action Center’s lawsuit to cancel the closure of the Oleksandr Avakov case in August and October.
Compromised court?
It is not yet clear if the final side of the triangle, the anti-corruption court, will be independent and professional enough to handle graft cases. The competition for High Anti-Corruption Court candidates was launched in August.
The High Qualification Commission of Judges has delayed the appointment of the six-member Public Council of International Experts or PCIE, a body of foreigners intended to help set up the anti-corruption court, ever since 12 candidates for the PCIE were nominated in mid-September. The court’s creation will be impossible if the PCIE’s creation is derailed, since its participation is obligatory under the law.
The commission said on Oct. 18 that it was planning to appoint the PCIE by the end of October.
Another problem is that it is not clear whether the High Qualification Commission will allow the PCIE to access candidates’ personal data, Vitaly Tytych, the coordinator of the Public Integrity Council, told the Kyiv Post. If the PCIE doesn’t get access to personal data, its work will be blocked, he added.
Yet another obstacle is that the PCIE might be blocked by the High Qualification Commission from assessing the results of candidates’ practical examinations. Moreover, the High Qualification Commission has previously refused to publish such results, thus casting doubt on whether they were assessed objectively.
Tytych argued that the PCIE has a right under the law to assess the results of practical examinations, and that such results should also be published according to the law.
Moreover, if the PCIE only vetoes some of the candidates, the rest of the candidates appointed by the High Qualification Commission may still be politically dependent, corrupt or incompetent due to the commission’s arbitrary and subjective assessment methodology, Public Integrity Council members argue. The commission has denied accusations that its methodology is arbitrary.
To resolve the problem, Tytych proposed that the PCIE not only veto the worst, but select the best candidates – i.e. carry out positive selection.
As conditions for further lending, the IMF has said the PCIE must be created, with its foreign experts having access to High Anti-Corruption Court candidates’ profiles and personal data, and that judges trusted by society must be selected, according to the Kyiv Post’s sources.
