NABU head Artem Sytnyk (left) and Prosecutor General Yuriy Lutsenko. Photo: 112.ua
Article by: Olena Makarenko
A new conflict has arisen between Ukraine’s General Prosecutor’s Office and the National Anti-Corruption Bureau, which is believed to be the most independent anti-corruption body in Ukraine. The General Prosecutor’s Office claims to have caught a National Anti-Corruption Bureau agent at provoking a state servant on a bribe. The head of the bureau said that it was part of their investigation undercover and that the Prosecutor General’s Office spoiled it.
On November 29, agents of the Security Service of Ukraine (SBU) under control of the General Prosecutor’s Office detained a detective of the National Anti-Corruption Bureau (NABU). This happened in the State Migration Service of Ukraine which informed that the detective tried to bribe the First Deputy Head of their institution Dina Pimakhova.
In its statement, the National Anti-Corruption Bureau called actions of the Security Services and General Prosecutor’s Office illegal and accused them of disrupting a special operation in the State Migration Service, which had been ongoing for 7 months:
“The Bureau considers the above-mentioned actions to be planned sabotage against the employees of the NABU and the Specialized Anti-Corruption Prosecutor’s Office (SAP) conducted by the Security Service of Ukraine and sanctioned by the Prosecutor General of Ukraine. The SBU officials, using data that has become known during the execution of official duties (the conduct of the wiretapping within the NABU’s investigations), allegedly disclosed this data to one of the objects of undercover operation and also recruited this person for further illegal pressure and prosecution of the NABU’s employees,’’ says the statement.
Also NABU affirms that the statement published at the website of Migration Service saying that the NABU agent allegedly had offered “large amounts of bribes” to the First Deputy of the Head of the State Migration Service for several months is not true:
“According to the materials of the criminal proceeding, the official of the State Migration Service herself had repeatedly demanded a ‘promotion’ in the amount of $30,000. Firstly, her demands were related to a positive decision on the issue of Ukrainian citizenship for the foreigner, and subsequently – to the provision of a temporary residence permit on the territory of Ukraine.
Since the beginning of the undercover operation in April 2017, a number of facts of illegal activities of the existing and former employees of the central departments and territorial offices of the Migration Service have been documented.”
The next day the Head of the National Anti-Corruption Bureau Artem Sytnyk and the Head of the Specialized Anti-Corruption Prosecutor’s Office Nazar Kholodnytskyi met Prosecutor General Yuriy Lutsenko.
Afterwards, Sytnyk said no NABU detectives will be detained because of the case.
He also again emphasized that the anti-corruption institution was conducting a special operation under cover:
“Yesterday’s event – the investigation of the General Prosecutor’s Office and SBU – actually stopped it,” said Sytnyk.
“On this stage we do not want to reveal facts which took place yesterday because the investigation is ongoing and there is a secrecy of investigation,” said Kholodnytskyi.
In his turn, Yuriy Lutsenko insisted the NABU agents were provoking a state employee to take a bribe and said this is unacceptable:
“In my opinion, employees of law enforcement bodies have no right to offer a state official to make a deliberately illegal decision and wait to hear how large the sum will be. This is a pure provocation.”
According to Lutsenko, this is the position of the Supreme and European Courts, and that a person committing a crime in result of a provocation will be freed from punishment.
However, Lutsenko also recognized that there are signs of corruption in the intercepted conversations between the First Deputy Head of the Migration Service and the NABU agent.
The whole incident is related to possible corruption schemes of illegal issuing permissions of permanent residence to foreigners in the State Migration Service.
The background of the conflict
The national Anti-Corruption Bureau was created in 2015 on the wave of the post-Euromaidan Revolution transformation. It was the first of the newly created anti-corruption bodies.
The heads of the prosecutors’ offices were also unworried about the creation of the new institution, as they had been in their positions for many years and witnessed many changes of power in the country. The anti-corruption reform did not seem as a threat to them.
“The whole squad of NABU and SAP were prosecutors just yesterday. However, the super-guardianship of the US made them feel they can do whatever they want without consequences,” Ukrainska Pravda quoted its sources among high-profile officials in the Prosecutor’s General office (GPU) in 2016.
The first conflict between the institutions happened in the end of 2015. That time, the General Prosecutors’ Office directed loads of its cases to NABU, including those which were not investigated for years.
If NABU took them up, it would have wallowed in them instead of undertaking pressing anti-corruption work. However, the bureau and the Special Anti-Corruption Prosecutor’s Office managed to secure only new cases for their detectives, sending the old cases back to the GPU.
Afterwards, the bureau had a break from disruptions, as then Prosecutor General Viktor Shokin focused on his institution’s internal conflicts. Meanwhile, NABU opened a number of resonant cases involving high-standing establishment figures who were previously “untouchable,” including the ATO (anti-terrorist operation) military prosecutor Kostyantyn Kulyk. Within a week of NABU’s submission of the suspicion note accusing Kulyk of illegal assets to the Special Anti-Corruption Prosecutor’s Office, the military prosecutor was transferred from the military prosecutor’s jurisdiction to a department investigating corruption in the GPU, including a corruption scandal with oligarch Serhiy Kurchenko, nicknamed “Yanukovych’s wallet.” The NABU was not intimidated and continued to pursue its case against Kulyk. Then, the GPU claimed that the NABU was bought out by Kurchenko to collapse the case against himself.
The wiretapping issue
In August 2016, at the hand of the GPU, NABU found itself in the middle of a scandal, which, like the current one, was related to wiretapping.
GPU representatives came to NABU to seize its documents. The suspicion note did not contain any suspect names, which would have allowed the prosecutors to search the building of NABU for months.
However, NABU thwarted the move, for which even the special forces of the bureau were used. Finally, NABU provided some required documents to the prosecutors, but called their visit illegal.
Of-the-record sources of Ukrayinska Pravda in the GPU had said the real reasons for GPU’s visit was an alleged interception of a Croatian businessman by an ex-prosecutor who became a NABU detective. According to Ukrainian law, only the SBU is permitted to conduct wiretapping. Then, NABU representatives reminded they do not bug anybody because they are not allowed to.
The conflict had not escalated further, and SAP Head Nazar Kholodnytskyi as well as Prosecutor General Lutsenko were restrained in their statements. The former promised not to shield its detectives if they indeed violated the law. And the latter stressed that NABU and SAP are his partners.
The law on wiretapping
However, some believe that the real motives of GPU’s searches were to discredit NABU and, as a result, to prevent it from receiving the right to do its own independent wiretapping.
“Petro Poroshenko and Co are generating justifications for the IMF on why they don’t give the right to wiretap [to the NABU – ed],” said head of NGO Anti-Corruption Action Center Vitaliy Shabunin.
There is a bill which Sytnyk and Kholodnytskyi are lobbying for. It foresees providing NABU the right to wiretap without the involvement of the SBU. For over a year, its status has not moved forward – it is still being considered in the Parliament.
Sytnyk was explaining that the ability to wiretap will give his institution more independence:
“No one will have the right to interfere in our actions and we will be the ones responsible for what we do. It will incur some expenses, but it is envisaged in our budget,” said the head of NABU in 2016 and explained that so far his bureau could only intercept with the help of Security Services which gave them access to their network but posed a threat of information leaks.
And according to NABU and SAP, this is exactly what happened those days:
“The NABU and the SAP repeatedly warned about the risks for undercover operations due to the fact that the NABU has no authority for autonomous wiretapping and conducts wiretapping on the basis of the Security Service of Ukraine only,” says the above mentioned statement of NABU.
NABU’s high-profile cases
During more than 2 years, NABU showed they are impudent enough to investigate people who previously seemed untouchable. There are two major cases of NABU against top officials:
- The one concerning the head of the National Fiscal Service Roman Nasirov who is suspected in causing damage to the state in amount of UAH 2 bn ($ 73.7 mn).
- The second against Mykola Martynenko, an MP who stands at the origins of Ukraine’s politics at the time of its independence. He is accused of embezzling more than $17.2 mn from the state enterprise “Eastern Mining and Processing Plant” (SkhidGZK).
However, there are serious obstacles in the way of NABU’s effective investigation – the courts.
“Together with SAP, we formed an anti-rating of cases which had been sitting in courts for a long time. There are many examples. I will give one which is related to the top-management of the Odesa Port Factory – a strategic enterprise on the verge of bankruptcy. Court hearings in one scheme are appointed once in two months. Then the court switches hearings into a closed mode,” explained Sytnyk.
The thing is that NABU is only one element in the chain of investigative anti-corruption institutions:
- The Specialized Anti-Corruption Prosecutor’s Office (SAP) which develops procedural guidelines.
- The Court. As of now, the cases on corruption are being handled in Kyiv’s Solomianskiy District Court. The principle of territoriality is applied, as the NABU is located in this city district. Predictably, the court does not manage to deal with all the the load.
Since there are problems with the final element, the court, the creation of the special Anti-Corruption Court in Ukraine has been announced in Ukraine.
Due to its activities, NABU gained enemies in different institutions and political forces. Before the recent scandal, another one took place two weeks ago, caused by the quarrel between the bureau and the National Agency for the Prevention of Corruption (NAZK). The Head of one of NAZK’s departments accused its management of violations during checking the e-declarations on assets Ukrainian officials were forced to submit, and claimed the agency was pressured by the President’s Administration. She claimed to have given all the information about the case to NABU. However, just the day before, NAZK announced it wants to bring the head of NABU Artem Sytnyk to administrative responsibility.
Another problem for NABU is the lack of people. Especially considering that starting from November 20, the powers of GPU investigative bodies on pre-trial investigation in criminal proceedings which in NABU’s powers and were registered by December 2015 ended. There are several thousands of such cases.
“The human resource of the bureau, the detectives of which combine the functions of investigators and operatives, is incomparable with the resources of the prosecutor’s office. Of course, it is a pity that the Prosecutor General’s Office, having such powerful resources, could not ensure a full and prompt investigation of these proceedings over the past two years,” says the statement of NABU.
Giving such an amount of cases to only 200 detectives of NABU will significantly slow down their work.
In the recent days, conflicts around NABU became more frequent, which is a sign of severe anti-corruption battles, as well as battles against those who fight corruption themselves.