NABU Director Artem Sytnyk (left) and General Prosecutor of Ukraine Yuriy Lutsenko (right). Photo: fb.com/Larysa Sarhan
An open conflict between the National Anti-Corruption Bureau of Ukraine and the Prosecutor General’s Office began in late November, 2017.
Chronology of the conflict
November 29: The Security Service of Ukraine (SBU) detains seven employees of the National Anti-Corruption Bureau of Ukraine (NABU) who were working undercover. One of them allegedly tried to bribe Deputy Head of the State Migration Service (SMS) Dina Pimakhova.
The Migration Service reports that money was offered to “legalize” non-existent citizens of Iran and Vietnam in Ukraine.
November 30: The General Prosecutor’s Office (GPO) charges one of the NABU detainees with provocation and bribery of a government official.
NABU claims that the GPO and SBU intervened illegally in a special operations plan aimed at exposing members of an organized criminal group in the Migration Service and called such actions “sabotage”. NABU Director Artem Sytnyk reports that the investigation was conducted in cooperation with the Federal Bureau of Investigation of the United States. NABU ceases all undercover operations.
December 3: General Prosecutor Yuriy Lutsenko declares that “all so-called NABU agents” were hired without regard to open competition, therefore, in violation of Ukrainian legislation. He calls the FBI’s participation in the agency’s work “an unlawful act without due process of law”.
December 4: At the Global Asset Recovery Forum in Washington, Artem Sytnyk states that Lutsenko’s allegations against NABU interfere with the Bureau’s work.
“This is not a fight for what the Prosecutor General’s Office intends to do. They’re fighting to maintain a corrupt system that is now playing its last card. It was very unpleasant when our FBI colleagues were referred to openly in these proceedings. I think they’ll react.”
December 6: The leaders of the Petro Poroshenko Bloc and the People’s Front submit a draft bill that allows the Verkhovna Rada to dismiss the heads of anti-corruption agencies – in particular NABU’s director – using a simplified procedure, i.e. without audits and by a simple majority.
The World Bank, the IMF, the European External Action Service and the U.S. State Department express their concern regarding the “attacks” on NABU and the Specialized Anti-Corruption Prosecutor’s Office (SAP).
December 7: Under pressure exerted by Ukrainian and international communities, the draft bill is withdrawn from the agenda. However, despite appeals by the Ukrainian office of Transparency International to abstain from voting, the Verkhovna Rada dismisses the Head of the Anti-Corruption Committee Yehor Soboliev. The Petro Poroshenko Bloc, People’s Front and Opposition Bloc vote in favour of the bill.
The FBI declares that it has always complied with Ukrainian laws and that its cooperation with NABU has always been within limits set by the Partnership Memorandum signed in June 2016. The FBI states that their employees worked with NABU on a temporary and rotational basis in order to maintain relations between the parties, and that they do not act as operational agents.
December 8: President Petro Poroshenko promises not to allow politics to interfere in any activities implemented by anti-corruption agencies.
NABU’s top cases
NABU has conducted several high-profile detentions and instigated some other cases against influential politicians and oligarchs.
The Onyshchenko Case: On March 16, 2016, NABU detectives search the offices of companies involved with MP billionaire oligarch Oleksandr Onyshchenko. He is accused of causing losses to the state amounting to over UAH 740 mn ($20 mn) by selling natural gas extracted by the state-owned Ukrgazvydobuvannya. Meanwhile, while the Verkhovna Rada works on the procedures for withdrawing his immunity, Onyshchenko flees the country.
The Nasirov Case: On March 2, 2017, NABU detains and charges the former acting Head of the State Fiscal Service Roman Nasirov regarding the Onyshchenko Case. He is suspected of postponing tax payment in the Ukrhazvydobuvannya Case, thus inflicting important losses to the state amounting to UAH 2 bn (almost $74 mn). The court arrested Nasirov, but he was released on bail and ordered to wear an electronic ankle bracelet.
The Martynenko Case: On April 20, 2017, NABU detectives detain former MP from the People’s Front faction, Mykola Martynenko, one of the most influential figures in this political party. According to the investigation, he was an accomplice in a shady deal regarding the state enterprise Eastern Mining and Processing Plant (losses estimated at $17 mn). The court did not follow up on Martynenko’s arrest and released him on bail put up by several Verkhovna Rada deputies.
The Amber Tycoons: On June 20, 2017, NABU discloses a scheme involving the illegal extraction of amber. Two MPs are suspected – Boryslav Rosenblatt (Petro Poroshenko Bloc) and Maksym Polyakov (People’s Front). NABU detectives claim that under the guise of reclamation, the MPs planned to extract amber and sell it through an offshore company, founded by Rosenblatt’s sister. Bribes amounted to more than UAH 300,000 ($11,000).
The Backpack Case: On October 31, 2017, NABU detectives detain Oleksandr Avakov, son of the Head of the Ministry of Internal Affairs Arsen Avakov, as well as former Deputy Interior Minister Serhiy Chebotar and businessman Volodymyr Lytvyn. They are suspected of embezzling UAH 14 mn ($516,000). The affair involves the “opaque” purchase of backpacks by the Ministry of Internal Affairs for Ukraine’s Special Forces. The court releases Oleksandr Avakov on his own recognizance after he agrees to wear an electronic ankle monitor and hand in his passport to the State Migration Service.
The Smithy Case: NABU begins to investigate the purchase by the State Border Guard Service of Triton armoured vehicles from the Smithy on Rybalsky (a ship building and armament company in Kyiv), which is indirectly controlled by President Petro Poroshenko and MP Ihor Kononenko. On October 18, the court grants NABU detectives temporary access to documents.
The old guard vs. anti-corruption activists
After the Revolution of Dignity and mounting public pressure, Ukraine begins reforming its law-enforcement system. In addition to the General Prosecutor’s Office, the Security Service (SBU) and the Ministry of Internal Affairs, several new anti-corruption agencies are launched in Ukraine.
NABU: The National Anti-Corruption Bureau was created on April 16, 2015. It is authorized to investigate corruption cases that involve category “A” civil servants – the highest echelon of government. NABU detectives may launch and investigate criminal cases against officials of the SBU, the Ministry of Internal Affairs and the Prosecutor’s Office if they concern corruption. However, NABU is not allowed to employ wiretapping and must contact the SBU for permission, which may provoke a conflict of interest.
SAP: The Specialized Anti-Corruption Prosecutor’s Office was launched on December 1, 2015. SAP works with NABU, overseeing detectives and transferring cases to the court. SAP is formally subordinated to the Prosecutor General’s Office, but in fact, the GPO has no influence on this agency, which is financially independent and located in a separate building.
NACP: The National Agency for Corruption Prevention was established on March 18, 2015. It verifies income statements submitted by civil servants and members of their families.
SBI: The State Bureau of Investigations is not fully operational. It should investigate criminal cases involving law enforcement officers, judges and high-ranking officials. The SBI should have taken over pre-trial investigations at the Prosecutor General’s Office as of November 2017.
The missing auditor
Each year, in accordance with the Law on the National Anti-Corruption Bureau, the agency must be audited by an independent audit committee, which determines its effectiveness. Auditors should inspect all the criminal proceedings and pre-trial investigations conducted by NABU.
If any serious violations are found, it is the auditor who advises the Verkhovna Rada on the dismissal of NABU’s director. However, an official auditor has yet to be appointed.
Pro-government factions promoted their candidates for this post, but did not receive the necessary support from the parliamentary Anti-Corruption Committee. Experts are convinced that this led to the dismissal of Yehor Soboliev, Head of the committee.
Where are the anti-corruption judges?
NABU and SAP have submitted 86 cases, but only 23 have been decided and only 17 sentences have come into force. One third of all the cases, where NABU detectives completed pre-trial investigations and SAP prosecutors sent the indictments to the courts, are still waiting to be heard. Some cases have been on the table for more than a year and a half.
The idea of a High Anti-Corruption Court appeared in Ukrainian legislation in June 2016 when the Verkhovna Rada adopted the law “On the Judiciary and Status of Judges”. It calls for the creation of a separate system of judges that will deal with anti-corruption matters. (This provision was one of the requirements of the IMF).
A year and a half has passed, but an anti-corruption court is nowhere in sight…
In the adopted law, these new courts are mentioned very briefly. In order to make them operational, the Verkhovna Rada must adopt a separate law on the creation and work principles of an anti-corruption court. A relevant draft bill was registered in Parliament at the beginning of the year, but it has yet to be discussed.
Addressing the Yalta European Strategy Forum in September, President Petro Poroshenko acknowledged that he did not support the creation of a separate court to deal with corruption cases.
“Do any other countries have anti-corruption courts? Let’s say France, Poland, Sweden, Germany or the United States? No, they don’t…” said Poroshenko. Alternatively, he proposed introducing anti-corruption chambers in existing courts.
Ukrainian activists and Western specialists reacted strongly to Poroshenko’s remark.
On October 4, Poroshenko suddenly changed his mind and announced that Ukraine should create an anti-corruption court. He even promised to submit a bill on the creation of such a court to Parliament after agreement with parliamentary factions.
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