Prosecutor General Yuriy Lutsenko (left) the head of the National Anti-Corruption Bureau Artem Sytnyk (right). Photo: nv.ua
The conflict between the Prosecutor General Office (GPU) on the one side and the National Anti-Corruption Bureau (NABU) with Special Anti-Corruption Prosecutor’s Office (SAP) in Ukraine escalates. The opponents of Ukraine’s anti-corruption bodies almost crossed the line, on 6 December introducing a draft bill which could have made these bodies, NABU, SAP, the National Agency for Preventing Corruption (NAZK), and the State Bureau of Investigations, fully dependent from the Parliament by giving it the power to dismiss the heads of the bodies without any audit.
After a campaign led by anti-corruption activists, Ukraine’s western partners interfered, defending the anti-corruption bodies, thanks to which the bill wasn’t voted for today. However, the Verkhovna Rada did vote to dismiss Yehor Soboliev from his post of Head of the Anti-Corruption Committee.
Despite NABU, the key anti-corruption institution affected by the recent conflict, not being perfect and having at times questionable efficiency, it has proved its independence and ability to go against those who just a few years ago were considered untouchable. NABU’s Independence is one of the main fears of those who are in power in Ukraine.
Prosecutor General ignores international anti-corruption venue
These days, the Global Forum on Asset Recovery (GFAR) organized by the United Kingdom and the United States is taking place in Washington. Its inaugural meeting focused on assistance to four priority countries: Nigeria, Sri Lanka, Tunisia and Ukraine.
In this regard, the US State Department released a statement emphasizing the efficiency of NABU:
“U.S. foreign assistance contributed to the country’s seizure of roughly $1.3 billion in cash, with the discovery of more than $3.24 billion in stolen public funds.
U.S. law enforcement professionals are embedded in Ukraine’s National Anti-Corruption Bureau (NABU) to help build anti-corruption and asset recovery capacity and strengthen Ukraine’s overall anti-corruption efforts. U.S. support has contributed to 333 criminal proceedings, 207 notices of suspicion, and the finalization of 108 indictments in cases related to corruption. Ongoing programming will continue to build on these achievements,” the statement says.
While Nigeria, Sri-Lanka, and Tunisia were represented on the high level by Prosecutor Generals and Ministers of Justice, the Prosecutor General of Ukraine Yuriy Lutsenko did not come to Washington.
The reason for this became clear later – his Office was preparing an operation against ex-Georgian president and ex-Odesa governor Mikheil Saakashvili.
Details about the operation: Saakashvili detained in Kyiv for “supporting criminal organizations”
All these events took place after a major wiretap scandal between GPU on the one side and NABU and SAP on the other side took place. The GPU claimed to have caught a NABU agent at provoking a state servant to take a bribe. The head of the bureau Artem Sytnyk said that it was part of their undercover investigation and that the GPU spoiled it. NABU denied any allegations of provoking a state servant and said that according to the materials of the criminal proceeding, the servant herself had repeatedly demanded a $30,000 “promotion.”
Coalition MPs from Petro Poroshenko’s Bloc and Narodnyi Front submitted a bill which would make it possible to dismiss the heads of NABU, SAP, State Bureau of Investigations, and NAZK without audit. Significant powers would go to Verkhovna Rada (the Parliament) which with a vote would be able to dismiss the heads of the abovementioned bodies at any moment.
Earlier this week, Lutsenko tried to urgently call on heads of NABU and SAP to come to the Parliament to discuss the recent conflict. However, Sytnyk and Kholodnytskyi ignored the call and decided not to interrupt their visit to Washington.
So Lutsenko came to the Parliament without them and asked the MPs to appoint an audit of NABU. He claimed to possess information of interest to the auditors.
Before, the attempts to appoint an auditor failed after several tries. The NGOs involved in the reforms process were concerned because MPs from Petro Poroshenko’s Bloc and Narodnyi Front wanted to appoint a candidate of their choice, supporting the candidacy of the loyal British auditor Nigel Brown.
However, these days the opponents of NABU went further when submitting the abovementioned draft bill, which would have made the dismissal of the heads of the anti-corruption bodies easier than ever, as well as diminish NABU’s independency.
“The bill extends the powers of the commission for the external control of NABU by providing its members access to state secrets and the right to verify not only cases which are completed and transferred to court, but also ongoing investigations,” a NABU statement describes.
The voting for the bill was planned for December 7, but it was put off thanks to the reaction from Ukraine’s American partners, which supported NABU from the very beginning. For example, Michael Carpenter, an advisor to ex US vice-president Joe Biden, warned Ukraine’s politicians that the US might cut all funding for Ukraine:
If the Rada votes to dismiss the head of the Anticorruption Committee and the head of the NABU, I will recommend cutting all US government assistance to #Ukraine, including security assistance. This is a disgrace.
— Michael Carpenter (@mikercarpenter) December 6, 2017
It seemed that such a message from the US worked and in the morning the bill disappeared from the Parliament’s schedule. However, the statement of NABU suggests that the bill still can be passed in nearest future:
“We are confident that these steps are a part of a big plan which entered an active phase last week. The main goal of it is destruction of NABU and SAP, blocking of investigations on top-officials and releasing top-corrupts from liability.”
Moreover, on December 6, the Anti-Corruption Committee of the Parliament recognized the work of its head, an MP from Samopomich faction Yehor Soboliev, as unsatisfactory. To finalize his dismissal from the position of the Head of the Committee, a corresponding bill was voted for on 7 December. The head of the EU Delegation to Ukraine Hugues Mingarelli expressed his concern regarding the incident and praised the work of the committee headed by Soboliev. In particular, Mingarelli noted its input for Ukraine in implementing the conditions of the action plan for receiving visa-free regime with the EU.
The events of the night of December 6-7 became the culmination in the war on corruption-fighters in Ukraine. However, Ukraine’s Western partners interfered before this culmination took place.
Western leaders side with the NABU
To a large extent, the decision of the Ukrainian authorities to not put up the draft for a vote came after the interference of Western partners, who were prompted to speak out in defense of NABU by Ukrainian reformist activists. Beside unofficial negotiations, a number of public statements were made.
“Recent events – including the disruption of a high-level corruption investigation, the arrest of officials from NABU, and the seizure of sensitive NABU files – raise concerns about Ukraine’s commitment to fighting corruption. These actions appear to be part of an effort to undermine independent anti-corruption institutions that the United States and others have helped support. They undermine public trust and risk eroding international support for Ukraine,” says the statement of the office of the Spokesperson of US State Department Heather Naueret, released by the US Embassy in Ukraine.
It also refers to the words of US Secretary of State Tillerson who said that it serves no purpose for Ukraine to fight for its body in Donbas if it loses its soul to corruption.
In her interview to liga.net, Marie Yovanovitch, the US Ambassador to Ukraine, expressed her support and trust in NABU and SAP.
The EU also followed with a strict reaction, stressing that the fight against corruption is a key element in the development of EU-Ukraine relations, upon which the success of other reforms rests:
“The public disclosure of a corruption investigation by the GPU significantly weakens the capacity of NABU to effectively conduct investigations and undermines public trust in an effective fight against corruption. As already expressed, Ukrainian authorities have to reinforce their efforts to ensure the independence, operational capacity and full effectiveness of the anti-corruption institutions. The work of these institutions must not be undermined but reinforced.”
The United Kingdom also expressed its concerns regarding the recent conflict over NABU, saying that interference in NABU investigations and the exposure of NABU’s undercover officers are a worrying sign that the future of independent anti-corruption investigations is under threat.
As well, the World Bank and the International Monetary Fund, which are among the largest financial contributors to a $40 bn bailout package given to Ukraine after the 2014 Euromaidan revolution, expressed their concern:
“We are deeply concerned by recent events in Ukraine that could roll back progress that has been made in setting up independent institutions to tackle high-level corruption… Fighting corruption is a key demand of the Ukrainian society, is crucial to achieving stronger and equitable growth, and is part of the government’s commitment under the program with the IMF,” IMF Managing Director Christine Lagarde said in a statement.
As well, several MEPs, as well as the EU Delegation to Ukraine, have stated that Ukraine’s actions against its anti-corruption institutions contradicts its Visa Liberalisation Action Plans (VLAP) commitments, hinting that the visa-free regime, regarded as a major win for President Poroshenko, could be suspended if things continue to go down. According to Euromaidan Press’ sources, such an option is already being discussed in the European Parliament.
Draft law #7362 allowing for dismissal of #NABU Director and heads of anti-corruption agencies goes against Ukraine's fight against corruption, reforms and VLAP commitments. The draft law should be abandoned. #Ukraine should strengthen & not weaken anti-corruption institutions.
— EU Delegation UA (@EUDelegationUA) December 7, 2017
Illegal cooperation with FBI?
On November 29, agents of the Security Service of Ukraine (SBU) under control of the GPU detained a NABU detective. 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 NABU called the actions of SBU and GPU illegal and accused them of disrupting a special operation in the State Migration Service, which had been ongoing for 7 months. Also the NABU statement refutes the allegations on provoking the state servant with a bribe.
Agents giving bribes: illegal provocation or not?
Prosecutor General Lutsenko has on 6 December threatened NABU head Sytnyk with criminal liability due to “violating the operation rules of the body.” The GPU suspects that NABU had created a “secret subdivision,” the goal of which was to artificially provoke state officials to take bribes in order to inflate its successes in fighting corruption, its spokeswoman Larysa Sargan told RFE/RL.
After the GPU detained NABU agent Serhiy Titienkov offering a bribe to State Migration Service employee Dina Pimakhova on 29 November, Lutsenko accused the anti-corruption agency of violating Ukrainian law, saying that under Ukrainian law, provoking anybody to violate the law is illegal, even if it’s an anti-corruption agent conducting an operation against a state official.
Legal expert Zlata Symonenko says it’s not so simple. While Ukrainian law indeed prohibits provoking others to take bribes, what constitutes a “provocation” needs a stricter definition. According to her, if NABU agents act within the law, having permission to conduct a special operation from SAP, as well as citizen appeals about specific officials asking for bribes, and document all steps of their special operation, the “bribing operation” is totally legal. It would be illegal if an agent tried to randomly bribe an official without the supporting evidence.
Such operations are standard practice for law enforcers in many countries of the world, says Drago Kos, Chair of the OECD Working Group on Bribery. According to him, this special operation is quite typical, and the international practice of combating corruption even demands agents to provoke state officials to take bribes.
Later, the GPU released information on the number of NABU employees, including those who were working under cover. The GPU also stated that NABU was cooperating with Federal Bureau of Investigation (FBI) and said that their common operations are illegal on the territory of Ukraine. Prosecutor General Yuriy Lutsenko called the network of undercover NABU agents illegal.
Another statement of NABU claims that Lutsenko “deliberately misleads the public and reports false facts and proposes arbitrary interpretation of the law to be unacceptable. Mr. Lutsenko actually gives the green light for a further attack on the newly created anti-corruption agencies.”
Commenting on Lutsenko’s allegations that the cooperation between NABU and the FBI is illegal, Kholodnitskyi said that this cooperation takes place according to Ukrainian legislation and international agreements. He described the reaction of their American colleagues on these allegations. According to him, the FBI is shocked by this turn of events because it was helping not only the NABU:
“They are cooperating with nearly all the law enforcement bodies… But somehow, namely from this special operation it appeared to the Prosecutor General that some foreign special service works illegally on the territory of Ukraine.”
Kholodnytskyi clarified that, first of all, this cooperation meant that the FBI was consulting the NABU and that, ironically, the statements of the GPU have for many left an impression that “FBI agents were running across Kyiv with guns and shooting corrupt officials like the agents Mulder and Scully.”
At the request of the Ukrainian service of Voice of America, the FBI commented on the details of their cooperation with the NABU:
“FBI personnel are temporarily assigned on a rotational basis at the NABU in support of our relationship. These special agents and analysts are not operational. Any statements to the contrary are not true.”
On this background, Lutsenko said that there is no conflict between GPU and NABU .
“But I, as the head of a law enforcement organization, cannot fail to notice the violation of the law, and I can not tolerate this. This is my position, this is my fate,” said Lutsenko.
Still, after the events of the last week it became clear that things will not be the same.
The anti-corruption institutions are in danger as never before, the attitude of Ukraine’s western partners towards Ukraine’s authorities have changed. And those who are in power in Ukraine separated themselves from the anti-corruption front and unofficially declared a war against it.
/with contributions by Alya Shandra